Law Enforcement

Guidance on the use of FOISA section 35

Section 35 of the Freedom of Information (Scotland) Act 2002 (FOISA) contains a wide range of exemptions, all relating to law enforcement. Information will be exempt if disclosure would, or would be likely to, prejudice substantially:

  • the prevention or detection of crime (section 35(1)(a));
  • the apprehension or prosecution of offenders (section 35(1)(b));
  • the administration of justice (section 35(1)(c));
  • the assessment or collection of any tax or duty (section 35(1)(d));
  • the operation of immigration controls (section 35(1)(e));
  • the maintenance of security and good order in prisons, etc. (section 35(1)(f));
  • the exercise by a public authority of one or more of the functions listed in section 35(2), such as ascertaining whether conduct is improper or securing the health, safety and welfare of people at work (section 35(1)(g)); or
  • civil proceedings brought and arising out of an investigation conducted for any of the purposes listed in section 35(2) (section 35(1)(h)).

The exemptions in section 35 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 exemptions in section 35 don't last forever. In general, they can't be applied to information that is more than 100 years old.

With all of the section 35 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 35 exemption briefing

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