Information you hold about investigations often includes personal information (for example about the suspects, witnesses or victims). If so, you must consider your obligations under data protection legislation. You may wish to consider whether to rely on section 40(2) to withhold such information – as this exemption is not subject to the public interest test.
Where the request links an investigation to an identifiable person, you must consider whether confirming or denying that you hold the information would itself breach the data protection principles. If it would, you must apply the exemption provided by section 40(5B) or, if the person is making the request themselves, section 40(5A).
Depending on the circumstances, other exemptions may also apply. For example, information which could harm a public authority’s functions around securing the health and safety of people at work could also engage section 38. This applies if its disclosure could endanger anyone’s health or safety.. Similarly, the premature disclosure of information about plans by HM Treasury to close a tax loophole might engage both section 31(1)(d) – the collection and assessment of tax – and section 35 – the formulation and development of policy.
This guidance relates only to FOIA. If the information is environmental, you will instead need to consider whether an exception under the EIR allows you to withhold it. There is no direct equivalent of section 31 in the EIR, however if you can demonstrate that disclosure of the information could adversely affect the course of justice, the confidentiality of proceedings or the voluntary supply of information then it is likely that you can withhold the information.
- The prejudice test
- The public interest test
- Information in the public domain
- Section 30 - investigations and proceedings
- Section 35 – the formulation and development of policy
- Section 38 - health and safety
- Section 40(2) - third party personal data
- Section 40(5A) - personal data of the requester
- Regulation 12(5)(b) - the course of justice
- Regulation 12(5)(d) - the confidentiality of proceedings
- Regulation 12(5)(f) - the voluntary supply of information