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4.1 Information which is not governed by the terms of this exemption but which relates to court and tribunal proceedings or inquests, inquiries and arbitration may still fall within another exemption. For example, if a party to litigation holds information contained in a document served by another party but does not only hold it for that reason, section 32 will not apply but it will be necessary to consider whether another exemption does apply. The following exemptions are likely to be particularly relevant in this context.
4.2 Information contained in documents falling within the categories covered by this exemption might in some situations constitute environmental information within the meaning of the Environmental Information Regulations. If this is the case, the information will be exempt from the FOI Act under section 39 and its disclosure must be considered in accordance with the Environmental Information Regulations.
4.3 If a public authority has obtained information from another person, that information will be exempt if its disclosure to the public (otherwise than under the FOI Act) by the public authority holding it would constitute a breach of confidence actionable by that other person. For example, information provided by another party in the course of "without prejudice" negotiations may be subject to a duty of confidentiality which may be breached by disclosure under the FOI Act.
4.4 Information which does not fall within the terms of this exemption, but which relates to litigation or legal advice, may still be exempt by virtue of section 42 (legal professional privilege). It may, for example, cover a draft of a skeleton argument drafted by Counsel which has been submitted for ministerial clearance. It should be noted that, unlike section 32, section 42 is a qualified exemption: it cannot be relied on to refuse an FOI request unless the balance of the public interest, in all the circumstances, comes down in favour of non-disclosure.
4.5 A document which falls within the categories of document covered by this exemption but which a public authority also holds by virtue of another source or by another means may also be exempt by virtue of section 42. For example, a claim to legal professional privilege may still be maintainable in legal proceedings in respect of a witness statement which has been prepared by a public authority itself from its own information and the information may therefore be exempt under section 42.
4.6 Section 44 creates an absolute exemption for information which is subject to certain forms of legal prohibitions on disclosure. In particular, public authorities must not disclose information if the disclosure is prohibited by a rule of court or a court order or the disclosure would constitute or would be punishable as a contempt of court. For example, the Family Proceedings Rules 1991, rule 4.23, prohibits the disclosure of a document held by a court (other than an order) to anyone except the persons concerned in the proceedings. The documents whose disclosure is prohibited include not only those filed by the parties before the hearing but also reports by the children's guardian and welfare officer, notes of evidence taken by the judge, documentary exhibits handed in during the hearing and any transcript or written note of the judgment. Once a written statement has been filed by a party by way of evidence, this will be covered by rule 4.23.