Section 32 of the Freedom of Information Act provides that:
Information held by a public authority is exempt information if
it is held only by virtue of being contained in-
(a) any document filed with, or otherwise placed in the custody
of, a court for the purposes of proceedings in a particular cause
or matter,
(b) any document served upon, or by, a public authority for the
purposes of proceedings in a particular cause or matter, or
(c) any document created by-
(i) a court, or
(ii) a member of the administrative staff of a court, for the
purposes of proceedings in a particular cause or matter.
Information held by a public authority is exempt information if
it is held only by virtue of being contained in-
(a) any document placed in the custody of a person conducting an
inquiry or arbitration, for the purposes of the inquiry or arbitration,
or
(b) any document created by a person conducting an inquiry or arbitration,
for the purposes of the inquiry or arbitration.
The duty to confirm or deny does not arise in relation to information
which is (or if it were held by the public authority would be) exempt
information by virtue of this section.
In this section-
(a) "court" includes any tribunal or body exercising the
judicial power of the State,
(b) "proceedings in a particular cause or matter" includes
any inquest or post-mortem examination,
(c) "inquiry" means any inquiry or hearing held under
any provision contained in, or made under, an enactment, and
(d) except in relation to Scotland, "arbitration" means
any arbitration to which Part I of the Arbitration Act 1996 applies.
1.1 Section 32 exempts information contained in those
litigation documents and court, tribunal and inquiry records to which it
applies. It exempts information held by a public authority if it is held
solely by virtue of its being contained in those categories of document.
That is an important qualification because if a public authority has also
obtained the information in question from another source or by another means
(for example, if the public authority had obtained the information from
a published source) then this exemption will not apply. Unusually in the
context of the FOI Act, the applicability of this exemption depends to some
degree on the form of the information, rather than its substance. The information
must be included in a particular type of document and must be held by the
public authority only by virtue of this. However, if the information is
so held, it will be exempt regardless of its content and for the reasons
set out below public authorities should refuse the request. This applies
both to the document itself and to any copies of that document or copies
of the information which it contains. If there is any doubt about whether
particular information falls within this exemption then advice should be
sought.
1.2 Section 32 is an absolute exemption - it is not qualified
by reference to the balance of the public interest in disclosure and non-disclosure.
The obligation to confirm or deny that the requested information is held
does not arise in relation to such information.
