Public Interest and Freedom of Information

I recently received an interesting and thought-provoking response to a FOI request at the MOD, for certain types of specialized but not particularly sensitive intelligence-related training or reference materials. They confirmed the existence of “information on this subject”, but added:

“[W]e will require additional time to respond as some of the requested information may fall within the scope of the following FOIA qualified exemptions: section 26 (Defence), section 27 (International Relations) and section 43 (Commercial Interests). As such it is necessary for us to carry out a Public Interest Test (PIT) to determine whether, in all the circumstances of the case, the public interest in maintaining the exemptions outweighs the public interest in disclosure…”

What interests me the most is that this Public Interest Test, the details of which I couldn’t immediately turn up (fodder for another FOI request, one wonders?) apparently happens automatically where exempt information may be responsive – in stark contrast to the American way of doing things. Here, despite the theoretical possibility of the voluntary waiving of an exemption, the burden generally falls on the requester to argue the public interest in the release of the records. Obviously, arguing the merits of something you haven’t seen and don’t know the details of can be quite a challenge.

Assuming the Brits’ testing is reasonably objective, their model seems quite well thought-out. It’s probably more labor-intensive (and thus expensive) than the American approach, but that’s another fundamental difference between the two countries’ FOIA programs – here, the average person gets two hours’ search time (at potentially as little as roughly $13 USD per hour) and the first hundred pages of photocopies (at $0.05 to $0.12 per page – $5 to $12 USD), for free; in Britain, you get (generally) the first 200 GBP (around $300 USD these days) of applicable fees waived. Of course, the English FOIA law is so new it still has that “fresh” smell to it, and seems to attract a lot fewer requests than are made under the U.S. law, which is roughly forty years old, and oft-amended…

Does the public interest outweigh the potential exemptions in the case of my request? I certainly think so. Will the Public Interest Test agree? Stay tuned; you’ll find out when I do…