Section 31 of the Freedom of Information Act provides that:
Information which is not exempt information by virtue of section
30 is exempt information if its disclosure under this Act would, or
would be likely to, prejudice-
(a) the prevention or detection of crime,
(b) the apprehension or prosecution of offenders,
(c) the administration of justice,
(d) the assessment or collection of any tax or duty or of any imposition
of a similar nature,
(e) the operation of the immigration controls,
(f) the maintenance of security and good order in prisons or in
other institutions where persons are lawfully detained,
(g) the exercise by any public authority of its functions for any
of the purposes specified in subsection (2),
(h) any civil proceedings which are brought by or on behalf of a
public authority and arise out of an investigation conducted,
for any of the purposes specified in subsection (2), by or on
behalf of the authority by virtue of Her Majesty's prerogative
or by virtue of powers conferred by or under an enactment, or
(i) any inquiry held under the Fatal Accidents and Sudden Deaths
Inquiries (Scotland) Act 1976 to the extent that the inquiry arises
out of an investigation conducted, for any of the purposes specified
in subsection (2), by or on behalf of the authority by virtue
of Her Majesty's prerogative or by virtue of powers conferred
by or under an enactment.
The purposes referred to in subsection (1)(g) to (i) are-
(a) the purpose of ascertaining whether any person has failed to
comply with the law,
(b) the purpose of ascertaining whether any person is responsible
for any conduct which is improper,
(c) the purpose of ascertaining whether circumstances which would
justify regulatory action in pursuance of any enactment exist
or may arise,
(d) the purpose of ascertaining a person's fitness or competence
in relation to the management of bodies corporate or in relation
to any profession or other activity which he is, or seeks to become,
authorised to carry on,
(e) the purpose of ascertaining the cause of an accident,
(f) the purpose of protecting charities against misconduct or mismanagement
(whether by trustees or other persons) in their administration,
(g) the purpose of protecting the property of charities from loss
or misapplication,
(h) the purpose of recovering the property of charities,
(i) the purpose of securing the health, safety and welfare of persons
at work, and
(j) the purpose of protecting persons other than persons at work
against risk to health or safety arising out of or in connection
with the actions of persons at work.
The duty to confirm or deny does not arise if, or to the extent
that, compliance with section 1(1)(a) would, or would be likely to,
prejudice any of the matters mentioned in subsection(1).
General introduction to the 'law enforcement' exemption
1.1 This exemption covers a very large number of aspects
of what may generally be termed 'law enforcement'. A number of general points
should be noted at the outset.
Nature of the exemption
1.2 Section 31 is an exemption turning on the likely effects
of a response to a request for information. It requires a prejudice test
to be applied. And it is a qualified exemption - before information may
be withheld in reliance on it, the public interest balance set out in section
2 must be considered.
Mutual exclusivity with section 30
1.3 The Act makes express provision for mutual exclusivity
with section 30. This is an important point, because there would otherwise
be a large area of potential overlap between the two sections. In the first
place, that is because both sections operate in a context which is recognisable
as 'law enforcement'. But more specifically, it is because section 30 is
an exemption which is focused in various ways on the source of the information
and the purpose for which it has been held, while section 31 is an exemption
which is focused on the effects of disclosure on the process. There is a
clear potential for both criteria to be satisfied in any particular case.
The mutual exclusivity provision directs attention in the first place to
section 30. Only if information falls outside section 30 does section 31
come into play. Much substantive information relating to a public authority's
own law enforcement purposes will therefore be caught by section 30. The
effect of giving predominance to section 30 over section 31 is to obviate
the need, where section 30 applies, to demonstrate any specific prejudice
in disclosure. It essentially recognises that premature disclosure of investigation
material can jeopardise or prejudice that investigation. But if it is clear
that one or the other exemption applies, but there is room for uncertainty
about exactly which, then they may be claimed in the alternative. A complete
account of the applicability of each section must, however, be set out in
full if this course is pursued.
One of the most important reasons why a request for information may fall
to be considered under section 31 rather than section 30 is because of section
30's limitations to information held by an authority for its own law enforcement
purposes. Section 31, by contrast, will be relevant in cases in which authorities
hold information for the law enforcement purposes of other bodies.
Different aspects of law enforcement in section 31
1.4 Section 31 operates by reference to a wide range of
law enforcement interests which may be prejudiced by disclosure of information.
Some of these are very widely drawn, and some are very specific. There is
a large potential for overlap between the various subcategories within this
exemption. Where a disclosure may fall under any category set out in section
31, careful thought should be given to whether or not another category may
also be relevant; if so, additional considerations may apply.
But to help clarify the application of this exemption, each aspect to which
is relates is considered separately in this guidance, both in terms of the
meaning of the exemption and also by way of an indication of the most likely
aspects of the public interest which may need to be taken into account in
making disclosure decisions.
The structure of section 31
1.5 The structure of section 31 is quite complex, and
the difference between its components needs to be carefully noted.
Section 31(1)(a) - (f) - these provisions stand by themselves. The
exemption works here by indicating a list of 'law enforcement' interests
which may be prejudiced by disclosure. These are broad, and potentially
overlapping areas - the administration of justice in general, crime,
tax, immigration and prisons.
Section 31(1)(g) - (i) and section 32(2) - these provisions need
to be read together.
Section 32(2) is a list of law enforcement "purposes".
Some of these are quite general, some focused on very specific
sectors of law enforcement. The list does not stand on its own.
The exemption does not work by applying the prejudice test directly
to these purposes. The test is applied indirectly through section
31(1)(g), (h) or (i). That means that one or more of the "purposes" has
to be engaged by one or more of those provisions before a disclosure
falls within the terms of this exemption.
Section 31(1)(g) is engaged where a disclosure would be likely
to prejudice the exercise of a public authority's functions for
a relevant "purpose".
Section 31(1)(h) is engaged where a disclosure would be likely
to prejudice an authority's civil litigation arising out of certain
investigations for a relevant "purpose".
Section 31(1)(i) is engaged where a disclosure would be likely
to prejudice certain fatal accident inquiries held under Scottish
legislation for a relevant "purpose".
All of these provisions are considered in greater detail in the following chapters.
