In this special feature, Lynn Wyeth has gathered a list of which statutory bars prevent release under FOI.
This is a living list… so, if you see something that should be on the list, please let us know at enquiries@ecase.co.uk and we’ll pass on to Lynn.
About Section 44 of the Freedom of Information Act (Prohibitions on disclosure)
Section 44 (1)(a) exempts information if its disclosure is prohibited by other legislation. e.g. there is some other law somewhere that says you must not reveal the information.
Such provisions are referred to as statutory prohibitions or statutory bars and they prevent public authorities from disclosing specific types of information.
Information is exempt under this subsection if its disclosure would breach any of the following:
- primary legislation (an Act of Parliament); or
- secondary legislation (a Statutory Instrument).
Section 44
- is an absolute exemption; and
- does not apply to common law restrictions (e.g. consider s41 instead for common law breach of confidence).
- ‘Neither Confirm nor Deny’ (NCND) can be used.
- No specific exception in Regulations12 under the EIRs but Regulation 5(6) enforces the equivalent: “Any enactment or rule of law that would prevent the disclosure of information in accordance with these Regulations shall not apply.”
List of statutory bars that prevent release under FOI.
| Legislation that prevents release | Example of information not to be released | Examples of organisations that can use it |
| Special Educational Needs and Disability Regulations 2014.Section 17. | Education, Health and Care (EHC) Plans. | Local Authorities, Schools, NHS |
| Census Act 1920. Section 8(2). | Census information. | ONS, Registrar-General, Registrars |
| Financial Services and Markets Act. Section 348. | Confidential information (relates to the business or other affairs of any person). | Bank of England, FCA |
| Local Government Act 1972 (LGA 1972). Schedule 12A. | Confidential meetings (e.g. old ‘pink papers’ meetings.) | Local Authorities |
| Local Government Act 1974. Section 32. | Maladministration complaints. | Local Government Ombudsman |
| Commissioners for Revenue and Customs Act 2005. Section 18. | Revenue and Customs officials may not disclose information which is held by the Revenue and Customs in connection with a function of the Revenue and Customs. | Revenue and Customs, HMRC |
| Statistics and Registration Services Act 2007. Section 39(1). | Personal information (including a body corporate) held by the Board. | UK Statistics Authority |
| Communications Act 2003. Section 393(1). | Information about a particular business. | OFCOM |
| Health Service Commissioners Act 1993. Section 15. | Investigations. | Health Service Ombudsman |
| Enterprise Act 2002. Section 9, Section 237(2). | Investigations into businesses. | Local Authorities (e.g. Trading Standards), OFCOM |
| DPA 2018. Section 132. | ICO Investigations. | ICO |
| Social Security Administration Act 1992. Section 132. | Deceased records. | DWP |
| Animals (Scientific Procedures) Act 1986 Section 24. | Testing licences. | Animals in Science Regulation Unit c/o Home Office |
| Utilities Act 2000. Section 105(1). | Information relating to the affairs of any individual or to any particular business being investigated under various energy acts. | OFGEM |
| Civil Aviation Act 1982. Section 23. | Investigation information which relates to a particular person. | Civil Aviation Authority |
| Investigatory Powers Act. Section 57. | (R)IPA authorisations, surveillance under (R)IPA. | Any authority that can issue (R)IPA authorisations |
| Environmental Protection Act 1990. Section 21 and Section 22. | Information relating to national security, Confidential information which relates to a particular person. | Local Authorities |
| Children and Young Person Act 1933 Section 39 | A court may prohibit the publication of information (e.g. name, address or school) that may lead to the identification of a child or young person involved court proceedings other than criminal proceedings | Police, Courts |
| Sexual Offences Act 1992 Section 1(2) | When someone is accused of a sexual offence, nothing can be reported that may lead to the identification of the victim. | Police, Courts |
| Contempt of Court Act 1981 Sections 4(2) & 11 | Substantial risk of prejudice to the administration of justice in proceedings (postponed report of public hearing) & where information is withheld in court it cannot be released elsewhere (matter withheld from the public during a public hearing) | Police, Courts |
| Criminal Procedure and Investigations Act 1996 Section 58 | Postponed report of derogatory assertion in mitigation. | Police, Courts |
| Youth Justice and Criminal Evidence Act 1999 Sections 45, 45A, 46 | Identity of a person under 18 Identity of a witness or victim under 18 identity of a vulnerable adult witness | Police, Courts |
| Criminal Justice Act 2003 Section 82 | Order for retrial after acquittal | Police, Courts |
| Serious Organised Crime and Police Act 2005 Section 75 | Identity of a defendant who assisted the police | Police, Courts |
| Judicial Proceedings (Regulation of Reports) Act 1926 Section 1 | Indecent or medical matter | Police, Courts |
| Contempt of Court Act 1981 Section 2 | Risk of impeding or prejudicing active proceedings | Police, Courts |
| Regulation of Investigatory Powers Act 2000 Sections 19 & 54, 59, 82, 134 | Offences for unauthorised disclosures Tipping off | Police, Courts |
| Education Act 2011 Part 8, section 141F of The Education Act 2002 Section 13 | Allegations of offences committed by teachers in England and Wales: reporting restrictions | Police, Courts, Schools, DfE |
| Crime (International Co-operation) Act 2003 (‘CICA’) Section 9(2) | Use of evidence obtained | Police, Courts |
| Serious Crime Act 2015 Section 71 | Identify victim of FGM | Police, Courts |
| Female Genital Mutilation Act 2003 Section 4A | Identify victim of FGM | Police, Courts |
For more information, view our webinar on Section 44
Please also check out the ICO’s Section 44 guidance.
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