Investigations by Scottish Public Authorities

Guidance on the use of FOISA section 34

Section 34 of the Freedom of Information (Scotland) Act 2002 (FOISA) contains a wide range of exemptions, all relating to investigations carried out by Scottish public authorities. Information will be exempt from disclosure if:

  • at any time, it has been held for the purposes of an investigation which the authority has a duty to conduct in order to ascertain whether a person should be prosecuted for an offence or whether a person prosecuted for an offence is guilty (section 34(1)(a));
  • at any time, it has been held for the purposes of an investigation, conducted by the authority, which may lead to the authority deciding to make a report to the procurator fiscal (PF) to decide whether criminal proceedings should be instituted (section 34(1)(b));
  • at any time, it has been held for the purposes of criminal proceedings instituted in consequence of a report made by the authority to the PF (section 34(1)(c));
  • it is held by a Scottish public authority for a Fatal Accident Inquiry (FAI) which has not yet concluded (section 34(2)(a));
  • at any time, it has been held by a Scottish public authority for the purposes of making a report to the PF as respects the cause of death of a person (section 34(2)(b));
  • it was obtained or recorded by an authority for the purpose of an investigation and the information relates to the obtaining of information from confidential sources (section 34(3)); or
  • it was obtained or recorded for civil proceedings brought by or on behalf of the authority, provided the proceedings arise out of an investigation mentioned in section 34(1) or (3) (section 34(4)).

The section 34 exemptions are sometimes referred to as "class-based" exemptions. This means that an exemption will apply if the information falls within a particular class of information (e.g. information held for the purposes of an FAI which has not yet been completed). Unlike most of the exemptions, an authority does not have to demonstrate that disclosure would cause harm before applying the exemption.

The exemptions in section 34 are all subject to the public interest test. This means that, even if an exemption applies, the information must be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it.

The exemption in section 34(2)(b) (ascertaining the cause of death of a person) does not last forever. In general, it cannot be applied to information that is more than 100 years old. All of the other exemptions in section 34 last in perpetuity.

With all of the section 34 exemptions, a public authority can refuse to confirm or deny whether it holds the information, provided the authority is satisfied that revealing whether the information exists or is held would be contrary to the public interest (section 18 of FOISA).

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Section 34 exemption briefing

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