FOIA Section 44 Exemption

Section 44: Prohibitions On Disclosure

Section 44 applies to three distinct categories of information:

If there is an existing statutory bar to the disclosure of information by a public authority then that information will be exempt;
If disclosure would be incompatible with a European Community obligation then the information will be exempt; and
If disclosure would constitute or be punishable as a contempt of court at common law (for example because it would breach a court order) then it will be exempt.

Key points:

The Human Rights Act 1998 can be a statutory bar to the disclosure of information if to do so would breach one of the Convention rights that have been incorporated into domestic law;
Section 44 is not subject to any public interest balance.

What the law says

44 Prohibitions on disclosure

(1) Information is exempt information if its disclosure (otherwise than under this Act) by the public authority holding it—

(a) is prohibited by or under any enactment,

(b) is incompatible with any Community obligation, or

(c) would constitute or be punishable as a contempt of court.

(2) The duty to confirm or deny does not arise if the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) fall within any of paragraphs (a) to (c) of subsection (1).

Laws that restrict disclosure of information

The list of Decision Notices below show the range of laws that prevent FOI disclosures under s44.
There is a full list being compiled here: Laws restricting disclosure of information
The FOI Act Section 75 allows the Secretary of State to relax or remove these laws that have a s44 prohibition via a Statutory Instrument. There has been one such SI to-date (SI 2004/3363).

ICO Decision Notices

NB: Decision notices are repeated below where more than one law / regulation was used for a s44 exemption
All data correct as at March 2010.

Abortion Regulations 1991

Department of Health FS50122432 s44 did not apply to the requested information. Confirmed by the Information Tribunal (ref EA/2008/0074). This is currently under further appeal to the High Court (ref CO/13544/2009).

Access to Justice Act 1999 - section 20

Legal Services Commission FS50072941 s44 applied correctly
Legal Services Commission FS50186715 s44 applied correctly, confirmed by the Information Tribunal EA/2008/0057

Air Navigation Order 2005

Department for Transport FS50156313 s44 applied correctly to only 3 of the documents requested. Currently under appeal to the Information Tribunal.

Animal (Scientific Procedures) Act 1986 - section 24

Home Office FS50088298 s44 applied correctly. Appealed to Information Tribunal (EA/2007/0059 / IT case summary), the High Court ([2008] EWHC 892 (QB)) and the Court of Appeal ([2008] EWCA Civ 870) which upheld the ICO decision. An appeal to the House of Lords was refused.
Home Office FS50108125 s44 applied correctly (NB: there is a mistake on the ICO website saying "FOI 44 - Complaint Upheld", however the text of the decision notice states "the Commissioner’s decision is that the information withheld by virtue of section 44 is exempt from disclosure")
Home Office FS50164497 s44 applied correctly
Home Office FS50202112 s44 applied correctly, based on Court of Appeal judgement for FS50088298.

Census Act 1920 - section 8(2) (as substituted by section 1 of the Confidentiality Act 1991)

Office for National Statistics (ONS) FS50147944 s44 applied correctly, confirmed at the Information Tribunal (EA/2007/0112)
Office for National Statistics FS50164048 s44 applied correctly
Office for National Statistics FS50213881 s44 applied correctly

Children and Family Court Advisory and Support Service (Membership, Committee and Procedure) Regulations 2005 - regulation 21

Children and Family Court Advisory and Support Service (CAFCASS) FS50150341 s44 did not apply to the information requested

Civil Aviation Act 1982 - section 23

Civil Aviation Authority (CAA) FS50141902 s44 applied correctly
Civil Aviation Authority (CAA) FS50148261 s44 applied correctly, confirmed by the Information Tribunal (EA/2007/0101)
Department for Transport FS50156313 s44 applied correctly to only 3 of the documents requested. Currently under appeal to the Information Tribunal.
Civil Aviation Authority FS50205237 s44 applied correctly. Currently under appeal to the Information Tribunal.
Civil Aviation Authority FS50261915 s44 applied correctly
Civil Aviation Authority FS50168527 S44 wasn't considered by the CAA in the refusal of this request, instead s31(1)(g) Law Enforcement. The IC found that s31 didn't apply. In the appeal to the Information Tribunal, the CAA claimed a S44 exemption, and this was upheld (ref EA/2009/0033).

Civil Aviation (Investigation of air accidents and incidents) Regulations 1996 (No. 2798)

Department for Transport FS50156313 s44 applied correctly to only 3 of the documents requested. Currently under appeal to the Information Tribunal.

Commissioners for Revenue and Customs Act 2005 - sections 18-20

HM Revenue and Customs FS50168774 s44 applied correctly
HM Revenue and Customs FS50090387 s44 applied correctly
HM Revenue and Customs FS50079644 s44 applied correctly
HM Revenue and Customs FS50074331 s44 applied correctly
HM Revenue and Customs FS50148767 s44 applied correctly
HM Revenue and Customs FS50181641 s44 applied correctly, confirmed by the Information Tribunal ([EA/2008/0091])
HM Revenue and Customs FS50202967 s44 applied correctly
HM Revenue and Customs FS50220497 s44 applied correctly. Currently under appeal to the Information Tribunal
HM Revenue and Customs FS50208593 s44 applied correctly. Currently under appeal to the Information Tribunal
HM Revenue and Customs FS50207228 s44 applied correctly. (NB: there is a mistake on the ICO website saying "FOI 44 - Complaint Upheld", however the text of the decision notice states "the information, if held, would attract the prohibition on disclosure provided by section 18(1) CRCA and therefore would engage section 44(1)(a) of the Act")
HM Revenue and Customs FS50202967 s44 applied correctly
HM Revenue and Customs FS50238448 s44 applied correctly
HM Revenue and Customs FS50265616 s44 applied correctly

Communications Act - section 393

Office of Communications (Ofcom) FS50187452 s44 applied correctly
Office of Communications (Ofcom) FS50184499 s44 applied correctly. The Information Tribunal agreed (ref EA/2009/0067).
Office of Communications (Ofcom) FS50328208 s44 applied correctly.

Companies Act - section 447

Department of Trade and Industry FS50071795 s44 not applied correctly by the DTI
Department of Trade and Industry FS50086783 s44 applied correctly

Data Protection Act 1998

Standards Board for England FS50064699 s44 applied correctly
Maldon District Council FS50087443 ["The Commissioner is not convinced of the relevance of s.7(4) of the DPA to the complainant’s request. S.7(4) only comes into play in the context of a subject access request made under the DPA by an individual seeking access to information about himself. In this case, no subject access request was made]
Information Commissioner (ICO) FS50126668 s44 applied correctly

Enterprise Act 2002 - part 9, sections 237-245

Office of Fair Trading (OFT) FS50090136 s44 was applied correctly by the OFT according to the ICO, confirmed by the Information Tribunal (EA/2006/0057). (NB: there is a mistake on the ICO website saying "FOI 44 - Complaint Upheld", however the text of the decision notice states "the Commissioner is satisfied that the section 44 is engaged and that the public authority need to take no further action")
East Sussex County Council FS50082765 s44 applied correctly
Office of Fair Trading FS50150268 s44 applied correctly. (NB: there is a mistake on the ICO website saying "FOI 44 - Complaint Partly Upheld", however the text of the decision notice states "the Commissioner accepts that the EA02 prevents the OFT from confirming or denying if information is held. Section 44 is therefore engaged.")
Cornwall Council FS50232320 s44 claimed during ICO investigation by the council, and deemed to have been applied correctly.

European Community Anti-Dumping Regulation (Regulation (EC) No 384/96)

Cabinet Office FS50093445 s44 "did not apply to the information which the public authority was continuing to withhold because the information did not fall within the cited Regulation"

Finance Act 1989 - section 182

HM Revenue and Customs FS50068023 section 44 incorrectly applied to some of the information requested

Financial Services and Markets Act 2000 - section 348

Financial Services Authority (FSA) FS50069723 s44 applied correctly, confirmed by the Information Tribunal (EA/2005/0019)
Department of Trade and Industry FS50065858 s44 applied correctly confirmed at information Tribunal (EA/2006/0039). [section 179 of the Financial Services Act 1986. Although this statute has since been repealed, the restrictions are effectively continued by s.348 of FSMA 2000]
Financial Services Authority FS50090867 s44 applied correctly
Financial Services Authority FS50094583 s44 applied correctly
Financial Services Authority FS50118129 s44 applied correctly
Financial Services Authority FS50075781 s44 was not applied correctly. Currently under appeal to the Information Tribunal by the FSA.
Financial Services Authority FS50097811 s44 applied correctly
Financial Services Authority FS50150138 s44 applied correctly, confirmed by the Information Tribunal (EA/2007/0136)
Financial Services Authority FS50082955 s44 applied correctly, confirmed by the Information Tribunal (EA/2008/0002)
Financial Services Authority FS50123488 s44 applied correctly
Financial Services Authority FS50147637 s44 applied correctly to some of the information.
Financial Services Authority FS50106712 s44 applied correctly, confirmed by the Information Tribunal (EA/2008/0075 and EA/2008/0077)
Financial Services Authority FS50129430 s44 applied correctly for some of the information requested. For the remainder "The Commissioner takes the view that some of this is not ‘confidential information’ which ‘was received by the primary recipient for the purposes [etc]’ (emphasis added), as laid down in section 348 of the Financial Services and Markets Act. He has therefore required disclosure of this part of the information withheld by reference to section 44".
Financial Services Authority FS50212106 s44 applied correctly

Health and Safety at Work Act 1974

Health and Safety Executive (HSE) FS50104541 s44 did not apply to the information requested.

Health Service Commissioner’s Act 1993 - section 15(1)

Parliamentary and Health Service Ombudsman (PHSO) FS50140862 s44 applied correctly, confirmed at Information Tribunal (EA/2007/0046)

Human Rights Act (European Convention on Human Rights) - Article 8

Ministry of Defence FS50099223 s44 did not apply to the information requested.
Hertfordshire Partnership NHS Trust FS50124800 s44 did not apply to the information requested.
Health and Safety Executive (HSE) FS50104541 s44 did not apply to the information requested.
Epsom and St. Helier University Hospitals NHS Trust - FS50071069. S44 was only introduced at the Information Tribunal stage, and they ruled: "... we would not be in favour of translating the general principles laid down in Article 8 into the form of specific legal prohibition to which we believe section 44 is intended to apply." EA/2006/0090 Bluck & ICO v Epsom & St Helier University Hospital Trust

Legal Aid Act 1988 - section 38

Legal Services Commission FS50072941 s44 applied correctly
Legal Services Commission FS50186715 s44 applied correctly, confirmed by the Information Tribunal EA/2008/0057

Local Government Act 1974 - section 32(2)

Commission for Local Administration in England (CLAE) FS50102256 s44 applied correctly
Commission for Local Administration in England (CLAE) FS50129885 s44 applied correctly
Commission for Local Administration in England (CLAE) FS50078583 s44 applied incorrectly to some of the information requested
Local Government Ombudsman (LGO) FS50094124 s44 applied incorrectly to some of the information requested. Some information was environmental, and the public interest in maintaining the equivalent exemption (regulation 12(5)(d) outweighed the public interest in disclosure.
Commission for Local Administration in England (CLAE) FS50129516 s44 not applied correctly
Commission for Local Administration in England FS50096459 s44 applied correctly
Commission for Local Administration in England FS50112347 s44 applied correctly to "the majority" of the information requested. Currently under appeal to the Information Tribunal.
Commission for Local Administration in England FS50086627 s44 applied correctly, confirmed by the Information Tribunal (EA/2007/0094)
Commission for Local Administration in England FS50127512 s44 applied correctly
Commission for Local Administration in England FS50091818 s44 was not applied correctly "to the minority of the information"
Ryedale District Council FS50194034 s44 applied correctly
Commission for Local Administration in England FS50234378 s44 applied correctly, although the CLAE made one or two small procedural errors in its handling of the request.

Local Government Act 1972 - schedule 12A

NB: This has since been replaced by Schedule 12A of the Local Government (Access to Information) (variation) Order 2006 (SI 2006/88).

Vale of Glamorgan Council FS50090383 s44 not applied correctly. This is an important reference case as sch 12A of LGA 9172 is the predecessor Act to the FOI Act that prevented disclosure about certain categories of local goverment meetings/minutes.

Local Government Finance Act 1992

London Borough of Bexley. Section 44 was raised during its appeal to the Information Tribunal (EA/2006/0060 & EA/2006/0060) for ICO case FS50072190 about empty property but the exemption was not pursued at the hearing.

Ombudsman (Northern Ireland) Order 1996

Assembly Ombudsman for Northern Ireland FS50176919 s44 applied correctly

Parliamentary Commissioner Act 1967 - section 11(2)

Parliamentary Commissioner for England FS50101616 s44 applied correctly
Parliamentary Commissioner for England FS50159410 s44 applied correctly
Parliamentary Commissioner for England FS50222887 s44 applied correctly. Currently under appeal to the Information Tribunal

Police Act 1996 - section 80

Independent Police Complaints Commission FS50069386 s44 applied correctly, confirmed by the Information Tribunal (EA/2005/0008)

This provision exempts all information related to police complaints, including complaints against chief officers. It also exempts material relating to other matters referred to police authorities.

Premium Savings Bond Regulations 1972

National Savings and Investments FS50101920 s44 applied correctly, confirmed at Information Tribunal (EA/2006/0059 and link #2)

Public Contract Regulations 2006 - regulation 43

Department of Health FS50083381 s44 did not apply to the information requested

Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR)

Health and Safety Executive (HSE) FS50104541 s44 did not apply to the information requested.

Taxes Management Act 1970

HM Revenue and Customs FS50090387 s44 applied correctly

Utilities Act 2000 - section 105

Office of Gas and Electricity Markets (OFGEM) FS50070198 s44 applied correctly

Laws Restricting Disclosure Highlighted by FOIA Refusal Notices

Below list is only for additional laws not already highlighted in ICO decision notices.

Postal Services Act 2000

Reports on Royal Mail’s performance are information obtained by Postcomm by virtue of the Postal Services Act 2000, and are thus confidential information for the purposes of Schedule 7 to that Act, which prohibits disclosure of such confidential information that relates to the affairs of a particular business. http://www.whatdotheyknow.com/request/detailed_performance_figures_1st

ICO Lines To Take

Relevant Lines to Take
LTT184 - Functions and statutory bars - 19/11/2010 LTT37 - Access to medical records of the deceased - 15/05/2009 LTT107 - No prejudice / adverse effect test for class based exemptions / exceptions - 20/06/2008 LTT18 - Financial Services and Markets Act 2000 - 10/12/2006 LTT24 - Public Contract Regulations - 17/11/2006 LTT23 - Police Act 1996 - 17/11/2006

**Freedom of Information Act 2000**
Exemptions
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