2.1 This exemption is intended to ensure that certain existing legal prohibitions on disclosure will override the general rights of access under the FOI Act. There are three such types of existing legal prohibitions: prohibitions under existing Acts, European Community obligations, and disclosures which would constitute or be punishable as a contempt of court. It is important to note that in such cases not only is there no obligation to disclose under the FOI Act, there is no discretion to disclose either. There is no balance of public interest to be made. The prohibition on disclosure must be observed.
2.2 The exemption applies only to legal prohibitions - that is to say, to disclosures which are or would be unlawful; but it is irrelevant what, if any, enforcement provisions are attached to that unlawfulness. Accordingly the exemption applies both to disclosures which are criminal offences, and also to disclosures which are subject to regulatory or civil law enforcement, including to disclosures subject to public law challenge. This provision does not, however, extend to disclosures which are unlawful at common law otherwise than by reason of contempt of court. In particular, it should be noted that this exemption cannot be used to avoid a disclosure which would be unlawful solely by reason of constituting a common law tort, or even offence, or constituting a breach of contract. The FOI Act is to be taken to have overridden such common law prohibitions. However it is also the case the disclosure of information that would previously have been covered by a common law prohibition may now be exempt under one or more of the other exemptions under the Act (breach of confidence, for example, is dealt with specifically in section 41). There is specific provision in section 79 in relation to defamation: where information was supplied to the public authority by a third person, the publication to the applicant under section 1(1) of any defamatory matter included in the information will be privileged unless it is shown that the disclosure was made with malice. This means that a person who, in response to an FOI request, discloses defamatory material that was obtained from a third person will be immune from liability for defamation unless they made the disclosure with malice. This privilege does not apply to information generated by the public authority itself.
2.3 It is important to note that this exemption is highly dependent on the precise terms of the relevant prohibition on disclosure. Where a prohibition is general and absolute, then its application to an FOI request will be a matter of the legal interpretation of the provision. Some prohibitions, however, may be qualified, and require the application of a judgment in the circumstances of the particular case. There may also be prohibitions which may permit disclosure but only on certain conditions. The Freedom of Information regime is about unconditional disclosure. But where information is requested and could be given out if, and only if, certain conditions apply, or are applied, then we can expect the FOI Act to be interpreted to give a suitably qualified right of access to as much of that information as is not required to be withheld. But the Freedom of Information Act itself provides no express power to allow public authorities to disclose information subject to conditions as to what the applicant may do with it. So careful decisions may need to be made as to how much of the information may be lawfully provided, in the light of any restrictions imposed by enactments as to disclosure. In cases of doubt, legal advice should be sought.
2.4 Subsection (1)(a) exempts information whose release is prohibited by or under an enactment. This includes prohibitions:
All specific statutory prohibitions on disclosure of this nature are being reviewed by the Department for Constitutional Affairs under powers contained in section 75 of the Act. At the time of writing no orders have yet been made under section 75.
It is also important to bear in mind that, while some enactments impost very limited or specific prohibitions on disclosure, others impose prohibitions of much wider or more general application. The most important of these is the Human Rights Act 1998. Section 6 of the Human Rights Act makes it unlawful for public authorities, including government departments, to act in a way that is incompatible with a Convention right. Disclosures that are so incompatible are therefore included within the scope of subsection (1)(a) of this exemption. Disclosures which would breach a Convention right are very likely to be the subject of other exemptions - but section 44 reinforces an absolute bar on such disclosures. The most relevant Articles of the Convention which may need to be considered in this context are:
2.5 Subsection (1)(b) exempts information whose release is incompatible with any European Community obligation. Some of these obligations may be enshrined in UK law already, such as the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001 (SI 2001/2188) which, amongst other things, implement the Investment Services Directive (93/22/EEC). In that case, they will already be covered under subsection (1)(a). Subsection (1)(b) therefore principally has effect in relation to EU obligations which do not rely on national legislative transposition. This may include:
2.6 Subsection (1)(c) exempts information whose release would constitute or be punishable as a contempt of court. Insofar as the relevant law of contempt of court has been codified in statute, for example in the Contempt of Court Act 1981, then again any prohibitions on disclosure will fall within subsection (1)(a). Subsection (1)(c) therefore principally has effect in relation to the common law on contempt of court.
2.7 Contempt of court at common law covers, in general terms, conduct intended to prejudice or impede the administration of justice. Superior courts of record (principally the Crown Court and the High Court) have inherent power to regulate their own proceedings and to punish contempts "in the face of the court". They can make orders that information is not disclosed to the public in order to ensure fair trials or facilitate proceedings. Disclosure of information pursuant to an FoI request may constitute a contempt of court if it:
2.8 Information likely to give rise to the issue of contempt of court includes:
2.9 A real risk of prejudice or impediment to a fair trial or the administration of justice needs to be shown for an act to be held contemptuous at common law. The publisher of the information must also be shown to have intended to cause such prejudice or impediment. "Intention" here does not refer to motive or desire, and it can be inferred from the circumstances surrounding the disclosure. Knowingly to disclose information in the face of a court order will generally be sufficient intention in the context of releasing information in response to a request under the Act. It is safe to say that, where a public authority is merely responding to a request for information and there is no reason to believe that proceedings are imminent or that any relevant court order is extant, the disclosure will not constitute a contempt of court. It is not a contempt of court if the risk of prejudice created by a publication is merely incidental to a discussion of matters of general public interest [footnote 1]. There may be, for example, a request for disclosure of a document which is of public importance but contains material which may prejudice the defendant in particular proceedings. If the information is incidental to the main thrust of the report, the disclosure will not constitute a contempt of court. However, where the information is of the type that falls into one of the categories mentioned above, legal advice should be sought.
2.10 Section 75 provides an order-making power to amend or repeal enactments prohibiting the disclosure of information. The Department for Constitutional Affairs has been conducting a review of all such enactments in order to determine whether they may be amended or repealed. Any enactments that remain in place at the end of this process will have passed one of four identified criteria, namely:
2.11 There is no period at the end of which this exemption expires. For this reason, the DCA's review of legislative prohibitions is seeking to introduce "sunset clauses" into all the legislative prohibitions that are being retained, disapplying them in relation to information over a certain age. These clauses will disapply the prohibition on disclosure in relation to information over the age stated in the clause. Once the prohibition has been disapplied, the exemption under section 44 can no longer be cited (although the use of any other appropriate exemptions would not be affected). The disapplication of the prohibition would not create a duty to disclose proactively in the absence of a request under the Act.