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'Improper conduct' certainly includes conduct which is contrary to the law, but is also capable of extending much wider than that. On the other hand, to be 'improper', conduct must be more than merely a failure to follow good practice, more even than conduct which is undesirable. Conduct will be improper if it falls below proper standards. Although this provision is capable of applying to generally applicable standards (of honesty, integrity, etc), this "purpose" is likely to be particularly relevant to standards of conduct which are either formalised (in, for example, a code of conduct) or which are specific to certain business sectors or professions. Again, not every breach of a code of conduct will necessarily amount to 'impropriety'; the expression denotes a failure to comply with reasonable minimum standards of propriety. And it may need to be distinguished from conduct which, for example, falls below standards of competence.
Examples of 'conduct which is improper', might therefore include conduct which falls below standards of proper conduct set:
Examples of processes or functions of government departments which are undertaken in order to ascertain whether any person is responsible for any conduct which is improper may be:
There is likely to be considerable overlap between such investigations and inquiries, and of course, one may lead to another. The significance of "any person" in subsection (2)(b) is that inquiries into how a state of affairs arose may not immediately come within its scope. However, if such an inquiry develops into one where individuals' conduct comes into question, it will apply to the subsequent consideration of that issue but not catch the wider scope of the inquiry. But in such circumstances there may be overlap with the prejudice to the proper conduct of public affairs exemption in section 36.
As already made clear in the introduction to this guidance chapter, the mutual exclusivity between section 30 and section 31 means that the information gathered by a public authority during its own conduct of such an investigation or inquiry, and which relates to the obtaining of information from confidential sources, will be protected under section 30 and even though its disclosure may well prejudice the investigation process, section 31 will not apply. This exemption is therefore aimed at other information the disclosure of which would prejudice the public authority's ability to carry out such investigations. Such prejudice might be general or relate to a specific investigation. For example, disclosure of the detail of the techniques in the course of an inquiry or investigation might undermine their effectiveness because those who might be the subject of such investigation will be able to take measures to evade detection. Likewise, if the existence of a particular inquiry is made known, it may tip off the perpetrator and who will take extra care to cover his or her tracks. Reports or assessments that highlight vulnerabilities in the system may well encourage the exploitation of those areas. For example if it is acknowledged that an internal misconduct investigation unit is under-resourced, those who might otherwise be deterred for fear of being found out may not be so deterred.
There is a very strong public interest in particular in ensuring proper conduct by those in positions of trust, those in public office, and those upon whose proper conduct others rely for the protection of their interests. That, however, is capable of weighing both for and against disclosure of information, depending on the circumstances of individual cases. It is important that a department's ability to investigate and take action in the event of improper conduct is not prejudiced. At the same time, there is a public interest in ensuring that such investigations are pursued effectively and in an accountable manner. There will almost always be a tension in conducting the public interest balance between protecting the investigation process and demonstrating that good mechanisms exist which are exercised appropriately.
Again, the likelihood of ascertaining whether the improper conduct has taken place, the action which might be taken as a result, the nature of the conduct and of standard breached, are all matters which would have to be taken into account in determining where the public interest balance lies in relation to this exemption. If the prejudice that would be caused by the disclosure of the information in question is such as to render the process ineffective for any future investigation, it is highly unlikely that the circumstances of a particular case would justify causing such damage. If however, the prejudice is of a lesser order - perhaps having the effect of prolonging an investigation, one can envisage circumstances where the public interest in demonstrating a commitment to dealing with impropriety or that something is being done would outweigh the public interest in not causing some prejudice to the process. Factors which need to be taken into account in the balance could include the following:
Several of these public interest factors can cut both ways in terms of disclosure or non-disclosure. Care must be taken in weighing the relative weight of these factors in the light of the facts of each case.
This provision is capable of extensive overlap with those provisions dealing with unlawful conduct; it is likely, however, that if conduct is not only improper but unlawful, its unlawful character will predominate and this provision is likely to add little. Likewise if there is a national security element to the improper conduct, the application of section 24 ought to be considered. Its main, effect, therefore, will be felt in those cases where other exemptions do not apply.