2.1 This exemption works by reference to a description of the purposes for which information was obtained, recorded or held, and in certain cases what the information relates to. These purposes and cases are considered further below; they are concerned primarily with investigations and proceedings which public authorities have legal powers or duties to conduct.
An important difference should be noted between the structure of the two key parts of this exemption:
In both cases, the test looks at the purposes of the information in the hands of the authority to which the request is made. It will therefore be capable of being relied on only by an authority which itself exercises one of the investigatory or litigation functions described in the exemption.
There is a clear potential for overlap between the two parts of this exemption. Both will apply in the case of information which has at any time been held for the relevant investigation and prosecution functions in section 30(1), and which was acquired for the purposes of the functions set out in section 30(2), and which relates to the obtaining of information from confidential sources. In practice, however, it will usually be more straightforward to rely on section 30(1) in cases of overlap - but in considering the balance of the public interest for and against disclosure, clearly all the relevant considerations applicable should be considered. And, as explained below, the section 30(1) exemption is subject to an expiry period which does not apply to section 30(2).
This exemption is very closely related to the exemption in section 31. Section 31 relates to certain disclosures which would or would be likely to prejudice a wide range of law enforcement functions. A key point to note is that sections 30 and 31 are expressed to be mutually exclusive; section 31 applies only in cases which do not fall within section 30. Because of the very different structures of the two sections (section 30 working by reference to the purposes for which an authority has information and section 31 by reference to the prejudice a disclosure would be likely to cause) there would otherwise have been considerable overlap between the two provisions.
One of the most important reasons why a request for information may fall to be considered under section 31 rather than section 30 is precisely because, as indicated above, 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 relevant to the law enforcement purposes of other bodies.
As a general guideline, section 30 should be considered first in respect of any information acquired in the course of relevant investigations and proceedings (from their earliest stages).
2.4.1 The purposes to which s.30(1) relates all concern the conduct, by the authority in question, of criminal, and certain other statutory investigations and criminal proceedings.
The 'purpose' in s.30(1)(a) is that of any investigation which is 'criminal' in the sense that it is conducted either with a view to its being ascertained whether a person should be charged with a criminal offence or, if a person has already been charged, whether he is guilty of it.
The reference to its being ascertained 'whether a person charged with an offence is guilty of it' refers to formal criminal procedure - that is to say to the process of prosecution, following charge, before a court or tribunal competent to make a determination of criminal guilt.
The investigation must be one conducted 'with a view to' charge or prosecution. This suggests a specific link between the investigation and the 'criminal' outcome. This part of the exemption is relevant where an investigation is designed primarily to decide whether or not there should be a charge or prosecution. Where criminal procedure may be one of a number of possible courses of action taken by the authority, section 30(1)(b) is likely to be more relevant.
The limitation in the first place to investigations which the authority itself has a legal duty to conduct is an important one. The source of the legal duty will very usually (although not necessarily) be found in primary legislation.
But there is no specific requirement for the charge/prosecution to which the investigation is directed to be one which the authority itself may bring.
Section 30(1)(a) clearly applies to criminal investigations conducted by the authorities which are primarily constituted for criminal law enforcement functions, for example:
It may also be applicable to criminal investigations conducted by, for example:
in circumstances in which the investigation is specifically directed towards a charging or prosecution decision.
These investigations need not be ones which an authority has a duty to conduct. Nor need they be investigations focused solely on the question of whether or not to charge or prosecute. It is enough that these are investigations which:
This provision therefore does not necessarily require that the only, or even the main or dominant, purpose of the investigation should be prospective criminal proceedings. That is a particularly important consideration for public authorities with regulatory functions or investigatory functions (such as, for example, the Health and Safety Executive, the Food Standards Agency, the Environment Agency, DEFRA or the Department of Trade and Industry) who may conduct investigations with a view to ascertaining whether a person should be charged with a criminal offence or alternatively be dealt with under regulatory powers in different ways - such as, for example:
Or who may conduct statutory investigations the results of which may be referred to prosecutors for a decision whether or not to institute criminal proceedings as well as or instead of being used to launch, for example, disqualification proceedings.
This part of section 30(1) focuses not on investigations but on criminal court proceedings themselves. It applies to information held for the purposes of criminal prosecutions which the authority itself has the power to conduct as a prosecuting authority.
Again, this will apply to criminal proceedings conducted by those authorities primarily constituted to do so, such as the Crown Prosecution Service, but also to criminal proceedings conducted by any public authority with prosecution functions.
As indicated above, section 30(2) concerns information with two sets of components. The first set relates to the purposes for which it was acquired, and these are considered below. But it is the second set which essentially characterises s.30(2) - the information must relate to 'the obtaining of information from confidential sources'.
Information may 'relate to' the obtaining of information from confidential sources in many ways. It may identify those sources, describe the process of obtaining the information, or indeed itself constitute information obtained from confidential sources.
'Confidential sources' are providers of information operating in a context which is to some degree necessarily covert; they are also characterised by a relationship of confidence, or protection, with the authority (or indeed other body or individual) to which they provide the information. 'Confidential sources' certainly includes informants - that is to say external individuals who covertly provide information under conditions of confidentiality, particularly as to their own identification. But it is not clear that the expression includes agents or officers of the authority itself working under cover, as such; information about this sort of information-gathering does not obviously relate to confidential, as opposed to covert, sources, nor is it clearly about gathering information from sources rather than by means of an authority's own activities. Still less is this provision likely to be considered applicable to information gathered by means of covert technology. The obtaining of information from confidential sources should be regarded as essentially limited to arrangements for acquiring information from third parties who have an expectation of confidentiality from the authority to which they give the information.
However, the information in question need not itself be confidential; it is the relationship with the source which must be confidential.
It is important to note that to the extent that the information in question relates to a living, identifiable, individual, it is likely to constitute personal information within the terms of section 40. Disclosure of personal information always needs to be considered in that context, whether or not section 30(2) also applies. It is also important to note that to the extent that the information is itself obtained from a confidential source, then section 41 is likely to be relevant. Both section 40 and section 41 need to be considered prior to section 30, because disclosure of information to which either of those sections applies is capable of exposing authorities to legal proceedings. Section 30(2) is therefore most likely to be relevant to information which does not identify individuals and the disclosure of which would not be an actionable breach of confidence (for example it might not be actionable because it was obtained by one government department from another). Examples might include:
2.6.1 Section 30(2) is further limited by the fact that the information must have been acquired for the purposes of the functions of the authority relating to any one of four specific areas. The functions of an authority may be its duties or simply its powers. It is important to note that the information must have been acquired for the purposes of the authority's own functions. The four areas of activity listed (concerning certain investigations and proceedings) are limitations on the sorts of functions which count for these purposes, so it is not enough that the information was acquired for the purposes of the activities - it must have been acquired for the purposes of the authority's functions relating to those activities. This rather complicated interrelationship requires the following questions to be addressed:
The information may have been acquired for the purposes of an authority's functions relating to a relevant activity in a range of ways. It may relate directly to that activity - for example, it may relate to a specific investigation or prosecution. Or it may relate to the administration of that activity - for example it may be about how its investigations or prosecutions generally are carried out. Or it may relate to the policies underlying the exercise of its functions.
The Act makes express provision here to refer solely to investigations which do not fall within section 30(1)(a) or (b) - that is to say, which are not investigations:
These are covered instead by section 30(2)(a)(i). Investigations which remain capable of falling within the terms of this part of the Act include, for example, investigations which are conducted by the authority and which may lead to a decision to institute criminal proceedings by someone other than the authority (for example the CPS). The main effect of this provision is, however, likely to be felt in relation to investigations which have in view outcomes other than formal criminal process.
The investigations must be either statutory or carried out under prerogative powers. There are very many investigations carried out by departments, either under the terms of an Act of Parliaments or by virtue of Regulations or other secondary legislation made in the exercise of powers contained in an Act, which are capable of falling within the terms of this provision. Examples might include inquiries under section 14 of the Health and Safety at work etc. Act 1974 and investigations under s. 169 of the Financial Services and Markets Act 2000 (investigations etc. in support of overseas regulator). All investigations carried out by statutory bodies are likely to be statutory investigations. Investigations which are not statutory, but which are carried out by central government departments, are very likely to be carried out under prerogative powers.
The key feature of this investigatory activity, however, is its limitation to the "section 31(2) purposes". These cover a range of law enforcement and regulatory purposes, both general:
and specific to:
These purposes are considered in greater detail in the chapter of this guidance dealing with section 31, and reference to that material is essential if departments are considering reliance on this part of section 30.
It should be noted that the civil proceedings must arise out of 'such investigations'. The investigations in question certainly include the investigations mentioned at subparagraph (iii). The better view is probably that they also include the investigations mentioned at subparagraph (i) as well. If investigations conducted by the authority may lead to a decision by the authority to conduct criminal proceedings, but are also capable of leading to a decision to conduct civil proceedings, then information acquired by the authority for the purposes of its functions relating to any such civil proceedings are likely to fall within the terms of this exemption (they may very well fall within the terms of other exemptions also, such as those in sections 31, 32 or 42, as discussed below).