FOIA Section 30 Exemption
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Section 30: Investigations And Proceedings Conducted By Public Authorities
Section 30 is concerned primarily with preserving the integrity of certain proceedings and investigations which public authorities have the power or duty to conduct. There are two ways in which the application of section 30 may be triggered:
- 1. where information has at any time been held for the purpose of specified criminal and other investigations or proceedings; and
- 2. where information relates to the obtaining of information from confidential sources and was obtained or recorded for a number of specified investigations or proceedings.
Key points:
- Section 30 can only be relied on by an authority which itself exercises one of the investigation or litigation functions that are specified in the exemption.
- Section 30 is quite a complex exemption and Departments will need to be alert to the precise terms in which its two limbs are expressed.
- Section 30 is subject to a public interest balance.
Guidance
- ICO: http://www.ico.gov.uk/upload/documents/library/freedom_of_information/detailed_specialist_guides/section_30_investigations_13_oct_06.pdf
- MoJ: http://www.justice.gov.uk/guidance/docs/foi-exemption-s30.pdf
- Old DCA guidance: http://foi.gov.uk/guidance/exguide/sec30/index.htm
What the law says
30 Investigations and proceedings conducted by public authorities
- (1) Information held by a public authority is exempt information if it has at any time been held by the authority for the purposes of—
- (a) any investigation which the public authority has a duty to conduct with a view to it being ascertained—
- (i) whether a person should be charged with an offence, or
- (ii) whether a person charged with an offence is guilty of it,
- (b) any investigation which is conducted by the authority and in the circumstances may lead to a decision by the authority to institute criminal proceedings which the authority has power to conduct, or
- (c) any criminal proceedings which the authority has power to conduct.
- (a) any investigation which the public authority has a duty to conduct with a view to it being ascertained—
- (2) Information held by a public authority is exempt information if—
- (a) it was obtained or recorded by the authority for the purposes of its functions relating to—
- (i) investigations falling within subsection (1)(a) or (b),
- (ii) criminal proceedings which the authority has power to conduct,
- (iii) investigations (other than investigations falling within subsection (1)(a) or (b)) which are conducted by the authority for any of the purposes specified in section 31(2) and either by virtue of Her Majesty’s prerogative or by virtue of powers conferred by or under any enactment, or
- (iv) civil proceedings which are brought by or on behalf of the authority and arise out of such investigations, and
- (b) it relates to the obtaining of information from confidential sources.
- (a) it was obtained or recorded by the authority for the purposes of its functions relating to—
- (3) 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 subsection (1) or (2).
- (4) In relation to the institution or conduct of criminal proceedings or the power to conduct them, references in subsection (1)(b) or (c) and subsection (2)(a) to the public authority include references—
- (a) to any officer of the authority,
- (b) in the case of a government department other than a Northern Ireland department, to the Minister of the Crown in charge of the department, and
- (c) in the case of a Northern Ireland department, to the Northern Ireland Minister in charge of the department.
- (5) In this section—
- “criminal proceedings” includes—
- (a) proceedings before a court-martial constituted under the Army Act 1955, the [1955 c. 18.] Air[1955 c. 19.] Force Act 1955 or the [1957 c. 53.] Naval Discipline Act 1957 or a disciplinary court constituted under section 52G of the Act of 1957,
- (b) proceedings on dealing summarily with a charge under the Army Act 1955 or the [1955 c. 18.] Air[1955 c. 19.] Force Act 1955 or on summary trial under the [1957 c. 53.] Naval Discipline Act 1957,
- (c) proceedings before a court established by section 83ZA of the [1955 c. 18.] Army Act 1955, section 83ZA of the [1955 c. 19.] Air Force Act 1955 or section 52FF of the [1957 c. 53.] Naval Discipline Act 1957 (summary appeal courts),
- (d) proceedings before the Courts-Martial Appeal Court, and
- (e) proceedings before a Standing Civilian Court;
- “offence” includes any offence under the [1955 c. 18.] Army Act 1955, the [1955 c. 19.] Air Force Act 1955 or the [1957 c. 53.] Naval Discipline Act 1957.
- (6) In the application of this section to Scotland—
- (a) in subsection (1)(b), for the words from “a decision” to the end there is substituted “a decision by the authority to make a report to the procurator fiscal for the purpose of enabling him to determine whether criminal proceedings should be instituted”,
- (b) in subsections (1)(c) and (2)(a)(ii) for “which the authority has power to conduct” there is substituted “which have been instituted in consequence of a report made by the authority to the procurator fiscal”, and
- (c) for any reference to a person being charged with an offence there is substituted a reference to the person being prosecuted for the offence.
This clause is amended by The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 SI1059, Sch. 1 para. 46(1) and 46(1)[The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009]. In the definition of "offence", for "service offence", include SDA offences as well. [1]
Who is likely to use this exemption?
Some public authorities investigate complaints, some bring prosecutions and some do both. No definitive list of public bodies entitled to use this exemption has ever been provided. The ICO/MoJ Guidance suggests that the following bodies may be able do so:
- Crown Prosecution Service;
- Department for Business, Enterprise, and Regulatory Reform
- Department for Environment, Food and Rural Affairs
- Environment Agency;
- Financial Services Authority;
- Food Standards Agency;
- General Medical Council;
- Health and Safety Executive;
- Her Majesty's Revenue and Customs
- Local authorities (for example, trading standards, environmental health);
- Office of Fair Trading
- Police authorities;
- Police forces;
- Serious Fraud Office;
Authorities not listed in the Guidance who have had their use of the exemption upheld (in whole or in part) by ICO:
- Civil Aviation Authority;
- Electoral Commission;
- Gambling Commission;
- Information Commissioner;
- Medicines and Healthcare Products Regulatory Agency;
- Ministry of Defence;
- Public Prosecutions Service for Northern Ireland;
- Royal Mail;
- The Treasury Solicitor's Department (TSOL)
ICO Lines To Take
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Decision Notices
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Includes DNs up to: 26 April 2010
Information Tribunal Judgements
EA/2009/0083
The Judgement in case EA/2009/0083 overturns a police force's application of S.30 in relation to a report on how an investigation was handled:
... we do not consider that section 30 is engaged. That exemption is concerned primarily with information held by a Public Authority for pre- criminal proceeding purposes, for example, whether to charge someone with an offence or for the purposes of an investigation which may lead to criminal proceedings. In the present case, the Report relates to an inquiry conducted well after the criminal proceedings in question had been concluded. The Report relates to how those investigations had been carried out, and in our view, it falls entirely outside the scope of section 30.
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