Regulation 10(5)(b) - Course of justice and inquiries

Challenge a refusal under EIR regulation 10(5)(b) - the authority says disclosure would harm the course of justice, a fair trial, or a criminal or disciplinary inquiry

What this exception means#

The authority is saying that disclosing the information would, or would be likely to, cause substantial prejudice to the course of justice, the ability of a person to receive a fair trial, or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature.

This exception is sometimes used to protect legal professional privilege (legal advice or litigation documents) or to safeguard ongoing investigations. But the authority must show specific harm, not just that a legal proceeding exists.

Unlike FOISA, all EIR exceptions are subject to a public interest test and must be interpreted restrictively. There is a presumption in favour of disclosure.

What the authority must show#

For this exception to apply, the authority must demonstrate that:

There is an active legal proceeding, criminal investigation, or disciplinary inquiry - or specific grounds for claiming legal professional privilege
Disclosure would, or would be likely to, cause substantial prejudice to that proceeding, investigation, or privilege
The harm is specific and demonstrable - not just that a proceeding or investigation exists
Even if the exception applies, the public interest in withholding outweighs the public interest in disclosure, applying the presumption in favour of disclosure

Things to check#

Is there an active proceeding or investigation? The exception is at its strongest while something is ongoing. Once proceedings have concluded and appeal periods have passed, claims of prejudice are much harder to sustain, and the Commissioner has rejected them - though not automatically: harm can sometimes persist (for example, disclosure that would deter future witnesses), and legal professional privilege can survive the end of proceedings. If everything is over, press the authority to explain what could still be prejudiced.
Did they demonstrate specific prejudice? Simply confirming that an investigation is ongoing, or that legal proceedings exist, is not enough. The authority must explain how disclosure would cause substantial prejudice. The Commissioner has been critical of authorities that assert prejudice without evidence.
Is this a legal professional privilege claim? If the authority is claiming the information is legally privileged (legal advice or litigation documents), check: Was it actually prepared for the purpose of legal advice or in genuine contemplation of specific litigation? Has the privilege been lost through disclosure of the advice or a comprehensive summary? Is the information factual rather than legal advice?
Is it only criminal or disciplinary? For the “inquiry” limb, only criminal or disciplinary investigations are covered - not civil or administrative investigations. The Commissioner has drawn this distinction clearly.
Factual information may be disclosable. Even if legal privilege applies, factual content can often be separated from legal advice and disclosed. A report is not automatically privileged just because it was prepared in a legal context.
The public interest test is essential. Even if the exception applies, the authority must demonstrate that the public interest in withholding outweighs the public interest in disclosure, applying the EIRs’ presumption in favour of disclosure.

Use the interactive tool#

Answer the questions below to check whether regulation 10(5)(b) has been properly applied to your request.

What the evidence shows

Arguments that have supported disclosure

In cases where the public interest test favoured disclosure, these themes appeared most often.

Scrutiny of decision-making The public has a right to understand how authorities make decisions that affect communities and the environment
Accountability for complaints handling The public should be able to see how authorities investigate complaints and whether their processes are fair
Accountability for enforcement Where authorities exercise enforcement powers, the public has an interest in understanding how those powers are used
Access to evidence after proceedings Where proceedings have concluded, the public interest in accessing the evidence grows stronger

What authorities typically argue

These are the arguments authorities most commonly make when withholding information under this exception. Knowing them helps you prepare a stronger case.

Protecting ongoing investigations Authorities argue that disclosure could prejudice ongoing criminal, disciplinary, or enforcement investigations
Maintaining legal professional privilege Confidential legal advice must be protected to ensure authorities receive comprehensive guidance
Ensuring fair proceedings Premature disclosure could prejudice a fair trial or hearing for those under investigation or prosecution
Protecting enforcement capability Revealing investigation techniques or enforcement strategies could help offenders evade detection
Preserving the regulatory regime Effective regulation depends on the authority's ability to conduct investigations confidentially and take appropriate action

Factors that tipped the balance

In decisions where the Commissioner ordered disclosure, these factors were decisive.

Information was factual The Commissioner found the information was factual and its disclosure would not cause the claimed prejudice to justice
Proceedings or investigation concluded Once the relevant investigation or proceedings had finished, the case for withholding was substantially weakened
Factual assessment, not legal preparation The document was predominantly a factual assessment, not material prepared specifically for legal proceedings
Restrictive interpretation favours disclosure The EIRs require exceptions to be interpreted restrictively and in favour of disclosure

Based on published decisions of the Scottish Information Commissioner. You can browse the decisions on the Commissioner's website.