Certain types of information are excluded from the normal principle of public access - or maximum disclosure - that should govern an access to information law.

Exceptions to maximum disclosure:

The principle that exceptions to public access should be 'narrowly drawn' implies that access to information laws should:

• clearly define the types of information that may be made an exception
• clearly define the circumstances in which these may be made an exception

Exceptions to publication:

Here is a list of types of information that can be excluded from public access in certain circumstances. It is important to stress that this does not necessarily mean that all information of a certain type will be kept secret - but simply that it can be sometimes:

• Law enforcement
• Personal privacy
• Commercial secrecy
• Public or individual safety
• Confidential government discussions
• Legally privileged information
• Public economic interests
• National security

Law enforcement

Investigation, prevention or detection of crime would often be impossible if the police were required to make information available about investigations while they were still going on. Likewise, it would become much more difficult for the police to catch criminals if all information about their work was readily available.

Some methods of detecting and preventing crime must be secret to be effective (e.g., techniques of surveillance). But care should be taken not to draft exclusions so broadly that information on law enforcement will never be released.

The key is that ongoing investigations should not be jeopardised, public/individual safety should not be put at risk and/or some other damage should not be caused by disclosure of the requested information.

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Personal privacy

Public bodies (and some private ones) hold some information about individuals. They need to do this in order to provide necessary services - for example, health, education and all types of social service.

But there is no reason why all this information should be made available to anyone other than the subject of the information - that could be an invasion of privacy.

Of course, the subject of the information should always be able to gain access to it. This is an important way of making sure that it is not abused.

Of course, not all personal information is private. And different rules will apply, in particular, where the personal information relates to the work of public officials.

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Commercial secrecy

This is one of the more difficult ones.

Suppose, for example, that a company was developing a new product. It would be legitimate for it not to have to divulge details that could allow its product to be copied by rival companies.

It would also be legitimate for companies not to have to divulge information that would affect its competitiveness in the market.

The problem arises for two reasons:

• First, because companies use commercial secrecy as a way of controlling and restricting the distribution of the social benefits of their product. A clear example of this is drug companies, which make enormous profits from the sale of branded drugs, when the cheaper reproduction of generic drugs would be of great social benefit.
• The second problem with commercial secrecy is that it often allows companies to operate in a socially unaccountable manner. A company may say that it is closing down a factory, with loss of jobs, because it is no longer profitable.

But shouldn't workers and the community be entitled to review the company's accounts to see whether this is in fact true?

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Public or individual safety

This is an exception that is clearly foreseen in international law.

Article 19 of the International Covenant on Civil and Political Rights says that 'public order' is a permissible ground for limiting freedom of expression (which, as we have seen, encompasses freedom of information).

It is certainly possible to imagine cases where an individual's safety might be jeopardised.

Say, for example, that someone was placed in a witness protection programme. It would certainly not be desirable that information about their whereabouts and identity be released.

Public safety is a more difficult concept. It could refer to the danger of public panic in the event of, e.g., a health threat. Yet, more often the need is for greater openness and information about health issues, not the opposite.

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Confidential government discussions

The idea of allowing exceptions on this is not to keep government decisions secret, but to protect the integrity of the decision-making process.

One concern is that officials should not be discouraged from having frank and free discussions about policy issues. The argument is that policy-makers will be cautious and conservative if they fear that every suggestion they make during a discussion can later be published (and perhaps ridiculed).

The other main concern is that the interests of the public may be put at risk if decisions are released prematurely.

Once again, there may be a valid point, but the bigger danger is that government decision making is too secretive, not too public.

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Legally privileged information

In all legal systems, some information is privileged - that is, it cannot be revealed except to those who have a right to that information within the rules and practice of the system. Most notably, this includes information exchanged between lawyer and client.

There are also limits during legal proceedings on the release of information that may influence the outcome: In many systems this is known as the sub judice rule. There is a limit to how far anyone can release information or comment on legal proceedings, such as trials, until they are over.

Legal privilege - especially the sub judice rule - is often abused as a way of limiting public comment, including criticism of the judiciary.

However, the right of everyone to a fair trial means that legal privilege, properly interpreted, has an important role in the judicial system.

Such information should certainly be excluded from maximum disclosure.

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Public economic interests

There are certain types of public economic information that could cause damage if they were released at the wrong time.

These should be protected in order to allow the government to manage the economy. For example, advance information about a change in interest rates or currency exchange rates could be used by speculators to cause damage to the currency. For these limited cases, it would seem reasonable to limit or restrict public access to this information.

In addition, those public commercial bodies that are covered by an access to information law should have the same protection as their private counterparts against the release of information that would damage their competitiveness.

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National security

This is undoubtedly the most controversial area relating to the release of information.

ARTICLE 19 thought that this issue of national security and freedom of information was so important that in 1995 it convened a meeting of international experts, along with the Centre for Applied Legal Studies at the University of the Witwatersrand.

These experts produced the Johannesburg principles on freedom of information and national security

The Johannesburg principles have been endorsed by the United Nations Special Rapporteur on Freedom of Expression - although unfortunately course this does not necessarily mean that they are widely respected in practice.

Releasing or withholding information

How do we decide whether information should be released or withheld?

The approach that is advocated by groups campaigning for access to information internationally is a three-part test, which should also be applied in all cases where there is doubt about whether or not a piece of information should be released:

1. The reason for keeping the information secret should be to protect a limited number of legitimate restrictions that are set out in the access to information law. These would correspond to the various grounds for making an exception that we have just discussed - law enforcement, commercial secrecy, national security and so on.

2. If the information were to be released, this would be likely to do substantial damage to the interest that is protected in the law.

3. Even if the information relates to one of these legitimate restrictions and can be shown to cause substantial damage, would it nevertheless be in the public interest to release it?

It is difficult to offer a right or wrong answer to these questions in abstract.

Decisions in each case will depend on the detailed facts and on the particular context.

The point of the three-part test is to provide a consistent way of making these difficult judgements while making the public interest the top priority

If you want to read more about the issue of exceptions, look at the ARTICLE 19's draft model access to information law.

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