3.1 As discussed above, information which is capable of falling within the terms of section 30 must be considered in that context rather than in the context of section 31. However, if information certainly falls within either one or the other section, but there is room for doubt about which is the more appropriate, both exemptions may be cited in the alternative. A full explanation must, however, be given for the applicability of each provision, if that course is followed.
Information falling within the terms of section 30 is not subject to any specific requirement to demonstrate that its disclosure would cause prejudice. Section 30 is, however, subject to the test of the balance of public interest set out in section 2 of the Act. And the effect of the disclosure of information within the terms of section 30 may be one of the relevant considerations which needs to be taken into account before making a decision whether or not to disclose in any given case.
The exemption under section 30(1) is conspicuous, as explained above, in its application to information that has at any time been held for the purposes of the investigations and proceedings to which it applies. This formulation is unique among the FOI Act exemptions. Its practical effects are likely to include its applicability to any information contained in a relevant investigation or prosecution case file which is not in fact subject to an absolute exemption.
3.2.1 The public interest both for and against the disclosure of information falling within the terms of section 30 needs to be considered in all the relevant circumstances of individual cases. At the heart of this exemption, however, lies the importance of public confidence in the investigations and litigation to which it refers, all of which relate to processes which are either part of law enforcement, or relate to the obtaining of information from confidential sources for the purposes of other forms of law enforcement. That confidence can certainly be served by increasing the transparency of the processes in question. On the other hand, that confidence also requires that the processes themselves should be effective for the delivery of justice.
As the White Paper on Open Government explained:
"There should be no commitment to disclose information which would help potential lawbreakers and criminals, put life, safety or the environment in danger Investigation of suspected crime must normally be kept secret from the suspect and others. Witness statements, names and addresses of witnesses and reports from the police and others to prosecutors could, if disclosed other than as required by the courts, jeopardise law enforcement or the prevention or prosecution of crime, or be extremely unfair to a temporary suspect against whom (in the event) no real evidence existed. It is in the interests of both the individuals concerned and the integrity of the prosecution process that material relating to both live and completed prosecutions and to prosecutions which do not go ahead can be kept confidential".
In balancing public interest considerations departments and public authorities will need to consider in particular:
The provision of information to the police, HM Customs and Excise, and to other public authorities by individuals and organisations remains crucial to the relevant investigation processes (both criminal and non-criminal), the prevention and detection of crime and the apprehension or prosecution of offenders and to the protection of the integrity and effectiveness of the criminal justice system as a whole. Particularly in relation to confidential sources, any disclosure of information may have extremely serious consequences in terms of the general willingness of individuals to supply information, and individual cases may involve serious risk of injury or loss of life.
3.2.2 The factors to be taken into account in considering the balance of the public interest will depend upon the circumstances of the particular case. In determining whether the public interest in withholding the information outweighs the public interest in disclosing the information, one or more of the following factors may be of assistance, namely, the extent to which either disclosing or withholding information would:
This is not an exhaustive list and in some cases none of these factors may be relevant.
3.2.3 It may be necessary to consult with other public bodies to determine whether or not the information should be released and the balance of the public interest in any individual case.
Under section 63(1) information contained in a historical record cannot be exempt by virtue of section 30(1). But the section 30(2) exemption is unlimited. Apart from the section 63 requirements, the passage of time may be a significant factor in considering disclosure; however it is also important to consider the sensitivity relating to particular cases, and the possibility of future appeals and proceedings which may take place many years after the event.