About this detailed guidance
This guidance discusses section 27, the international relations exemption, of FOIA in detail and is written for use by public authorities. Read it if you have questions not answered in the Guide, or if you need a deeper understanding to help you apply this exemption in practice.
- What exemptions are contained in section 27 of FOIA?
- How should we interpret the terms used in the exemptions?
- How do we apply section 27(1)?
- How do we apply section 27(2)?
- How do we apply the neither confirm nor deny provisions?
- How do we consider the balance of the public interest?
Section 27(1) provides an exemption for information if its disclosure would, or would be likely to, harm UK interests which are set out in the exemption.
Sections 27(2) and (3) provide an exemption for information obtained in confidence from another state, international organisation or international court.
Section 27(4) provides an exemption from the duty to confirm or deny whether information is held if doing so would or would be likely to prejudice the interests protected by section 27(1) or would involve the disclosure of confidential information protected by section 27(2).
All of the exemptions are subject to the public interest test.
Section 27(5) defines the terms used in the exemption as follows:
“(5) In this section -
‘international court’ means any international court which is not an international organisation and which is established—
(a) by a resolution of an international organisation of which the United Kingdom is a member, or
(b) by an international agreement to which the United Kingdom is a party;
‘international organisation’ means any international organisation whose members include any two or more States, or any organ of such an organisation;
‘State’ includes the government of any State and any organ of its government, and references to a State other than the United Kingdom include references to any territory outside the United Kingdom”.
Examples of international courts include:
- the European Court of Human Rights;
- the Court of Justice of the European Union; and
- the International Court of Justice.
The term “international organisation” covers:
- the European Union;
- organs of the EU such as the European Parliament and the European Central Bank;
- the UN and its specialised agencies such as the World Health Organization;
- international organisations which have been established for a specific purpose, such as the World Trade Organisation; and
- organisations established to carry out particular functions in an international context, such as Interpol.
The term “state” covers the government of any state. This will include states with a government structure, the overseas territories of the UK, the oversea territories of other countries and Crown Dependencies such as the Channel Islands.
Under section 27(5), the term “state” also includes “any territory”, outside the UK which includes territories which are not recognised as states in international law but which may be the subject of international law or international agreements. For example, Antarctica.
The “organs of government” are typically a state’s legislature and executive.
Section 27(1) is a prejudice based exemption which states that information is exempt if its disclosure would, or would be likely to, prejudice:
“(a) relations between the United Kingdom and any other State,
(b) relations between the United Kingdom and any international organisation or international court,
(c) the interests of the United Kingdom abroad, or
(d) the promotion or protection by the United Kingdom of its interests abroad”.
Clearly, there is some overlap between the different provisions set out in this exemption. You should rely on the provision, or provisions, that are most relevant to the circumstances of a particular request.
The interests of the UK abroad and the UK’s international relations cover a broad range of issues. For example:
- communications between public authorities in the UK and other states, international organisations or organs of other states;
- the exchange of political views between states;
- UK policy and strategic positioning in relation to other states or to international organisations;
- diplomatic matters between states;
- international trade partnerships;
- consular matters about UK citizens abroad or visitors to the UK;
- state visits by overseas officials and ministers;
- international funding matters;
- cases before international courts; and
- universities’ international relations and strategic alliances for research and attracting funding.
This list is not exhaustive. There may be other reasons why disclosing information would, or would be likely to, prejudice the UK’s international relations.
The prejudice test
You can only withhold information on the basis of section 27(1) if its disclosure would, or would be likely to, prejudice one of the activities listed in the subsections.
The test involves a number of steps:
- Whether the harm is one which the exemptions in section 27(1) are designed to protect. The interests of the UK as a whole are relevant rather than your own interests or those of individual companies. Nevertheless, it is important to consider the context. It may be appropriate for you to apply the exemption if an organisation’s interests are inextricably linked to the wider interests of the UK.
- Whether you can demonstrate a causal link between the disclosure and the harm. The prejudice must be real, actual or of substance. Prejudice under section 27(1) can be real and of substance if it makes international relations more difficult or calls for a particular diplomatic damage limitation exercise. However, you do not necessarily have to demonstrate quantifiable loss or damage.
- What the likelihood of the harm actually occurring is (ie “would” it occur, or is it only “likely to” occur?).
Deciding whether the prejudice would occur or is only likely to occur is important. The more certain the prejudice, the greater weight it will carry when considering the public interest. In this context the term “would prejudice” means that it has to be more probable than not that the prejudice would occur. “Would be likely to prejudice” is a lower test; there must be a real and significant risk, even if the risk of prejudice occurring is less than 50 per cent.
In Campaign against Arms Trade v the Information Commissioner and Ministry of Defence EA/2007/0040 (26 August 2008) the Tribunal considered the nature of the prejudice in a request for a Memoranda of Understanding between the UK government and the Kingdom of Saudi Arabia (KSA).
In its findings about the engagement of section 27(1), the Tribunal stated that:
“…in our judgment prejudice can be real and of substance if it makes relations more difficult or calls for particular diplomatic response to contain or limit damage which would not otherwise have been necessary. We do not consider that prejudice necessarily requires demonstration of actual harm to the relevant interests in terms of quantifiable loss or damage. For example, in our view there would or could be prejudice to the interests of the UK abroad or the promotion of those interests if the consequence of disclosure was to expose those interests to the risk of an adverse reaction from the KSA or to make them vulnerable to such a reaction, notwithstanding that the precise reaction of the KSA would not be predictable either as a matter of probability or certainty. The prejudice would lie in the exposure and vulnerability to that risk.”
Read our detailed explanation of the prejudice test in our guidance on the prejudice test.
Key factors affecting prejudice
The effective conduct of the UK’s international relations depends upon maintaining the trust and confidence of other states and international organisations. This relationship allows for the free and frank exchange of information between the UK and its partners. In turn this allows the UK to effectively protect and promote its interests abroad.
There are certain areas that you should therefore consider:
- The trust and confidence other states and international organisations have in the UK - whether disclosure of the requested information would undermine this.
- The content of the information - the more sensitive or candid the information is, the more likely that disclosure could be prejudicial.
- The context of the information - differences in culture and social customs, religion and the type of government of other states will be relevant. Disclosing potentially controversial information about one state may not have any material impact on international relations, but disclosing relatively bland information about a different state may have a significant impact.
- The broader effects of any disclosure - for example, disclosure of information may have a direct impact on the UK’s relationship with a particular state but could also have a wider impact on the UK’s relations in a particular region or with international organisations.
- The timing of the request - the sensitivity of information may diminish over time, but this is not always the case. Some matters, although historical, may still be ones where there is ongoing sensitivity in terms of the UK’s relations with another state. For example, information focussing on historical issues may still be relevant or have a direct impact on current UK foreign policy.
- The UK’s relations with states and international organisations - whether this could change following the UK’s exit from the European Union.
In Laura Francis v Information Commissioner and the Department for International Development EA/2013/0217 (25 April 2014) the Tribunal considered a request to DFID for information about a decision to provide, and subsequently suspend, UK aid to Rwanda. The disputed information included details of policy options presented to two successive Secretaries of State, internal governmental analysis of the actions of Rwanda and others, and the recorded views of the Prime Minister and Foreign Secretary on the UK’s policy towards Rwanda.
DFID refused the request relying most heavily upon section 27(1) and the Commissioner agreed that this exemption was engaged.
The Tribunal agreed that this information was exempt from disclosure on the basis of sections 27(1)(a) to (d). In reaching this view the Tribunal noted that the subject of UK aid provided to Rwanda and allegations of Rwandan misconduct in the Democratic Republic of Congo was obviously a very sensitive matter. Releasing the information may detract from the key international relations objectives of the UK government to Rwanda and would be likely to prejudice the UK’s ability to conduct international relationships in a direct, managed and appropriate way.
The Tribunal also found that the situation in the Great Lakes region was fragile and unpredictable and likely to continue for some time. Disclosure of the withheld information could lead to a polarising of positions around the conflict in that area. Any damage to UK-Rwanda relations may have an effect beyond the Great Lakes region. The Tribunal noted that Rwanda was a non-permanent member of the UN Security Council, with the UK being one of five permanent members. The UK as part of its membership needed to conduct its activities in the Security Council on the basis of trusted, reliable and managed international relations. The Tribunal found that the damage to the relationship with one member could significantly hamper the UK’s ability to operate within the Security Council.
In Marc Owen Jones v Information Commissioner and Foreign and Commonwealth Office (FCO) EA/2014/0259 (29 April 2015) the Tribunal considered a request to the FCO for a section of a report entitled “Bahrain: Internal Political Situation 1977”. The FCO initially withheld the report on the basis of section 27(1)(a) before providing the requester with a redacted copy. The requester argued that it was not sustainable to argue that the disclosure of information dating from nearly 40 years old would be likely to harm the UK’s relationship with Bahrain, particularly taking into account the fact that one of the parties discussed in the report was now deceased.
The Tribunal agreed that even though 40 years had elapsed, and some information about this issue was in the public domain, the information that had been redacted was still sensitive. Therefore, it was satisfied that if this information was disclosed it would be likely to damage the UK’s ongoing relations with Bahrain.
Section 27(2) says:
“Information is also exempt information if it is confidential information obtained from a State other than the United Kingdom or from an international organisation or international court.
(3) For the purposes of this section, any information obtained from a State, organisation or court is confidential at any time while the terms on which it was obtained require it to be held in confidence or while the circumstances in which it was obtained make it reasonable for the State, organisation or court to expect that it will be so held”.
It is a class based exemption and is not subject to the prejudice test.
There is a clear overlap with the exemption provided by sections 27(1)(a) and (b). Disclosure of information that it is confidential in the context of section 27(2) will in many cases result in prejudice to the UK’s relations with the entity that provided that information.
Information obtained from a state, international organisation or court
You must have been given the requested information by another state, organisation or court in order to rely on section 27(2). Therefore, the exemption does not cover information you generate yourself, although it may cover documents (or parts of documents) you generate if these record information provided in confidence by another state, international organisation or international court.
Even in cases where information is not classed as being obtained from another state, international organisation or court, you may want to consider if it is exempt from disclosure under section 27(1).
Determining whether information is confidential
You must determine whether the information requested is confidential in order to rely on section 27(2). Factors that are likely to be relevant to this assessment include whether:
- there is a formal confidentiality agreement between you and the provider of the information;
- the provider of the information has explicitly requested that you treat it confidentially;
- the circumstances in which the information was provided to you implied that it was being provided in confidence; and
- the sensitivity of information indicates that the provider would want it to be treated confidentiality.
You should also take into account the culture of different states and their interpretation of the concept of confidentiality.
If you are in doubt whether the information is confidential you should consult the source of the information.
In CAAT v Information Commissioner and Ministry of Defence EA/2007/0040 (26 August 2008) the Tribunal’s view was that confidentiality under section 27 should be judged against the state’s particular characteristics and that it could not justify imposing on the Kingdom of Saudi Arabia (KSA) the UK’s particular customs and principles on transparency or democratic accountability. It concluded that in the circumstances the KSA would have reasonably expected that the information would have remained confidential, in the absence of their consent to release it. In reaching this conclusion the Tribunal placed particular emphasis on the attitude of the KSA to defence or supply of arms and the cultural norms about secrecy.
Information in the public domain
You should consider whether the requested information itself or similar information on the same subject is in the public domain.
Information is unlikely to be confidential if it is in the public domain. However, you should always compare the information carefully with the requested information and consider whether it would actually reveal anything new.
For example, the information could be more detailed, provide additional context or could corroborate a previously unreliable source or leak. If this is the case you may have grounds to argue that it is still confidential.
For further information, please see our separate guidance Information in the public domain.
How long does information remain confidential?
Under section 27(3) information remains confidential for as long as:
- the recipient is required to hold it in confidence; or
- the provider has a reasonable expectation that it will be held in confidence.
If a considerable amount of time has elapsed since you were provided with the information it may be more difficult to justify that it is still confidential. You should consider consulting the provider of the information if you are unsure whether the information is still confidential.
Section 27(4) says:
“The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a)—
(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1), or
(b) would involve the disclosure of any information (whether or not already recorded) which is confidential information obtained from a State other than the United Kingdom or from an international organisation or international court”.
You can rely on section 27(4) in order to refuse to confirm or deny whether you hold the requested information if doing so would, or would be like to, prejudice the interests protected by section 27(1). Alternatively, you can rely on section 27(4) in order to refuse to confirm or deny whether you hold the requested information if doing so would involve the disclosure of confidential information protected by section 27(2).
For example, confirming or denying whether requested information is held could reveal whether the UK had discussed a particularly sensitive issue with another state.
Section 27 is a qualified exemption. This means that even if the requested information is exempt from disclosure, you must consider whether the public interest in maintaining the exemption outweighs the public interest in its disclosure.
FOIA does not list the factors that would favour disclosure. However, they may include:
- furthering the understanding of, and participation in the public debate of issues of the day;
- promoting accountability and transparency in how public money is spent;
- helping individuals understand decisions made by public authorities which affect their lives;
- informing the public about measures, procedures, arrangements and associated discussions concerning public protection; and
- bringing to light information affecting public health and safety.
You must ensure that the public interest arguments in favour of maintaining an exemption relate specifically to that exemption and the particular factors relevant to that request. Section 27(1) is designed to protect the interests of the UK abroad and its relations with other international organisations, courts or states. There is a public interest in ensuring that the UK enjoys effective international relations with other states, organisations and courts in order to further its foreign policy and domestic policy aims.
In relation to section 27(2), there is an inherent public interest in protecting confidentiality. Disclosure of confidential information undermines the principle of confidentiality, which depends on a relationship of trust between the confider and the confidant. There is a public interest in respecting international confidences under this exemption to ensure that states, international organisations or courts are not deterred from providing information.
You must consider the relative weight of the arguments for and against disclosure given the circumstances of the particular request. These can be affected by the likelihood and severity of any prejudice, the age of the information, how far the requested information will help public understanding and whether similar information is already in the public domain.
Requesters may argue that for information about events in another country or the actions of a foreign government, it is relevant to consider the public interest in disclosure of information in order to inform the interests of the people of that country. The purpose of FOIA is to promote the transparency and accountability of the UK government and public authorities. Therefore, this argument is not relevant to the factors in favour of disclosure.
In The Right Honourable Lord Naseby v Information Commissioner and Foreign and Commonwealth Office EA/2016/0136 (3 May 2017) the Tribunal considered a request for despatches written between January and May 2009 by the UK’s defence attaché to the British High Commission in Sri Lanka. The period in question covered the final months of the Sri Lankan civil war. The FCO disclosed some of the requested despatches but withheld parts on the basis of section 27(1)(a).
The Tribunal found that section 27(1)(a) was engaged and that the public interest favoured maintaining the exemption. Its rationale being that:
“The public interest in disclosure is substantial. Beyond the public interest in transparency as to events of such importance, there is the likely value of information Colonel Gash’s [the UK’s defence attaché] contacts with the security forces to any balanced assessment of the responsibility of both sides to the carnage of the last few months of the war. There is evidently a perception, shared by a body of informed opinion, that reports so far published have been devalued by the shortage of evidence and appraisal from the government side, largely due to a reluctance to participate in what was seen as intrusion into Sri Lanka’s internal affairs…We acknowledge the strength of the public interest in such information from such sources, marshalled by such a well qualified and objective observer. Nevertheless, we consider the public interest in maintaining confidential channels of communication for UK defence attaches clearly outweighs it.”
There are other exemptions which may be relevant to section 27 and you may want to read our guidance on these exemptions:
- Section 24 (national security) when confidential information supplied by a foreign government needs to be protected for the UK’s own national security.
- Section 26 (defence) when joint military operations disclosure may prejudice not only the UK’s own defence interests but those of its allies.
- Section 35 (formulation and development of government policy) for the development of foreign policy.
- Section 41 (information provided in confidence) as there is a clear link between this exemption and sections 27(2) and (3).