s44: Prohibitions on disclosure

Summary

Prohibitions on disclosure where :

  • Disclosure would be prohibited by or under any enactment - in primary legislation (Acts of Parliament) e.g. the Human Rights Act 1998, or any sort of secondary legislation made under statutory powers (including orders, rules, regulations or codes);
  • Disclosure would be incompatible with any European Community obligation – examples include EU Procurement Law, Competition Law, and the Financial Services and Markets Act 2000;
  • Disclosure would constitute or be punishable under common law as a contempt of court - 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;
  • applies only to legal prohibitions – e.g. to disclosures which are or would be unlawful;
  • This provision does not, however, extend to disclosures which are unlawful at common law otherwise than by reason of contempt of court. 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; disclosure of some 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).
  • Absolute exemption , therefore no right of access under FOI, and no consideration of the public interest test required;
  • Duty to confirm or deny whether the information exists may not always apply;

Examples of information that may fall under this exemption:

Information that was provided to the University during a tendering process; (EU Procurement Law);

Information likely to give rise to the issue of contempt of court.

Sources of further information

More detailed guidance notes about this exemption can be found by viewing the following links: