SCOTTISH EXECUTIVE FREEDOM OF INFORMATION (SCOTLAND) ACT 2002:OPEN LEARNING WORKBOOK
MODULE 14
EXEMPTIONS FROM THE RIGHT OF ACCESS - CAN INFORMATION ALWAYS BE ACCESSED? PART 3
14.1 CONTENT AND LEARNING OBJECTIVES
This module and the previous module describe the exemptions in the Act and whether these are absolute or non-absolute. When you go through the exemptions in this module and the previous module, remember the issues that were raised in Module 12.
Once you have worked through this module you should understand the exemptions for:
- Investigations
- Law enforcement
- Confidentiality
- Court records
- Health, safety and the environment
- Audit functions
- Communications with Her Majesty and honours
The personal data exemptions are dealt with in Modules 16 and 17.
SUGGESTED TIME ALLOCATION: 50 minutes
14.2 LEARNING MATERIALS
14.2.1 Section 34 - Investigations by Scottish public authorities and proceedings arising out of such investigations
This is a non-absolute exemption and so the public interest test must be applied. This exemption covers information which has at any time been held by a Scottish public authority for the purpose of an investigation into criminal matters whether the public body is the prosecuting authority or has an obligation to make a report to the Procurator Fiscal.
It also covers information held by a Scottish public authority for the purposes of an inquiry under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 which has not yet been concluded; information held by a Scottish public authority into the cause of death of any person whether by virtue of a duty on the authority or to make a report to the Procurator Fiscal and information held for the purpose of investigations in relation to the regulatory functions listed in section 35(2) of the Act and which relate to the obtaining of information from confidential sources.
14.2.2 Section 35 - Law enforcement
This is a non-absolute exemption and so the public interest test should be applied. This covers information which would, or would be likely to, prejudice substantially a list of law enforcement matters. The list includes (among other things) the prevention or detection of crime, the apprehension or prosecution of offenders or the operation of immigration controls. The exemption also covers information which would, or would be likely to, prejudice substantially any civil proceedings brought and arising out of an investigation conducted for the list of regulatory purposes specified in section 35(2) and brought by a public authority under a duty to carry out such an investigation.
14.2.3 Section 36 - Confidentiality
This is an exemption that is partially absolute and partially non-absolute.
The non-absolute part of the exemption covers information which attracts confidentiality of communications in legal proceedings.
The absolute exemption relates to confidential information which -
- was obtained by the authority from another person (which can be another public authority) and
- where that person could successfully take the authority to court to stop it disclosing the material.
This means that an authority cannot argue that its own information or material produced by its staff for it, is confidential.
There will be guidance on this exemption in the section 60 Code.
14.2.4 Section 37 - Court Records, etc.
This is an absolute exemption. It relates to court records. If a court is handling a case, or has handled one, it is up to the court to decide whether to allow public access to the information lodged with the court for the proceedings. In many cases courts do allow open access to pleadings and hearings.
14.2.5 Section 38 - Personal information
This exemption is part absolute and part non-absolute. It relates to information which comprises personal data under the Data Protection Act 1998. This is discussed in Modules 16 and 17.
14.2.6 Section 39 - Health, safety and the environment
This is a non-absolute exemption and so the public interest test must be applied. It relates to information whose disclosure would, or would be likely to, endanger the physical or mental health or the safety of an individual.
It also relates to information which will be disclosed under new regulations to be made to implement the international convention on access to information about the environment, the Aarhus Convention. This is covered in Module 11.
14.2.7 Section 40 - Audit functions
This is a non-absolute exemption and so the public interest test must be applied. This covers information the disclosure of which would, or would be likely to, prejudice substantially the exercise of a Scottish public authority's functions into the audit of other public authorities or an examination of their efficiency.
14.2.8 Section 41 - Communications with Her Majesty etc. and honours
This is a non-absolute exemption and so the public interest test must be applied. It covers information which relates to communications with the Royal Family or Household or relates to the grant of honours by the Crown.
14.3 THE STRATEGIC VIEW
Authorities should consider how the confidentiality exemption will affect relationships with third parties and how this can be dealt with. It may be appropriate to build this into tender procedures and to have standard contractual clauses that deal with confidential information in relation to FOISA. |
14.4 SUMMARY
There are 17 sections in the FOISA dealing with exemptions. The list in this module covers sections 34 - 41 and explains whether each is an absolute or a non-absolute exemption. It also highlights which exemptions the "substantial prejudice" test applies to.
14.5 KEYWORDS
Confidential | Information is confidential if one party, usually the party who discloses the information, would be able to take the holder of the information to court to stop them telling anybody else. The circumstances in which an obligation of confidence can be overridden are where the person consents, where there is a legal obligation to disclose or where there is overriding public interest in the disclosure. |
14.6 REFERENCES
Section 34 FOISA Investigations by Scottish public authorities and proceedings arising out of such investigations
Section 35 FOISA Law enforcement
Section 36 FOISA Confidentiality
Section 37 FOISA Court records
Section 38 FOISA Personal information
Section 39 FOISA Health, safety and the environment
Section 40 FOISA Audit functions
Section 41 FOISA Communications with Her Majesty and honours
Section 37 FOISA Court records
Section 36 FOISA Confidentiality
14.7 RESOURCES
Section 60 Code:
www.scotland.gov.uk/about/FCSD/MCG-NW/00018022/Code60.pdf
14.8 SELF ASSESSMENT CHECKLIST
1. An absolute exemption exists in respect of confidential information but in certain circumstances this exemption can be overridden. TRUE or FALSE?
2. There is an absolute exemption in respect of court records which means that in no circumstances can information, such as pleadings lodged with the court for the purposes of proceedings, be made publicly available. TRUE or FALSE?
3. Where the release of information could endanger the physical or mental health, or safety of an individual, such information will always be exempt. TRUE or FALSE?
4. Where there is an absolute exemption on information, the public will be denied access to that information in all circumstances. TRUE or FALSE?
Click here for answers
14.9 WHAT THEY SAID
"Those of us with council and parliamentary experience know that the excuse of commercial confidentiality is used constantly to block legitimate concerns about expenditure". (Donald Gorrie - MSP)
"On exemptions, many Freedom of Information Acts around the globe have sunset clauses. I would be interested to learn what consideration has been given to that and what systematic review of exemptions will take place" (Brian Fitzpatrick - MSP)
14.10 CASE STUDY
Researchers for a TV station are working on a programme about a local University. The University is long established and has been very successful over its history in attracting wealth and status. It has a history of royal patronage and significant endowments. A member of the Royal Family has attended the institution in living memory and more recently it has succeeded in attracting modern European money from the EU Commission.
The working title of the programme is Patronage - Past and Present. The researchers are looking to compare the position of the institution in the present, 50 years ago, 100 years ago and 200 years ago. Their thesis is that elitism persists but has changed the way it works. They have made a number of access requests for material under FOISA. They have asked for information about:
- Royal connections, both past and present
- Endowments both where these have come from and where they are currently invested - specific requests have been made for any audit reports
- The qualifications required to enter the institution both past and present
- Funding from outside Scotland
Task
1. Considering the material you have examined in Modules 12, 13 and 14, are there any relevant exemptions which may apply?
2. For each exemption you identify, if any, consider whether it is an absolute or a non-absolute exemption and what this means in each case.