Section 26 - Prohibitions on disclosure

What this exemption means#

The authority is saying that another law - not FOISA - prevents them from disclosing the information. This could be an Act of Parliament, a regulation, or a rule about contempt of court.

This is an absolute exemption, so there is no public interest test. But the authority must identify the specific legal prohibition.

What the authority must show#

For this exemption to be validly applied, the authority must demonstrate that:

1. There is a specific law that prohibits disclosure of the information
2. That law contains an actual prohibition - not just a discretionary power to withhold
3. The prohibition applies to this specific information - not just to the general category

The three types of prohibition#

Section 26 covers three situations:

• Section 26(a) - a UK or Scottish Act of Parliament, or a statutory instrument, prohibits disclosure
• Section 26(b) - an assimilated obligation prevents disclosure
• Section 26(c) - disclosure would constitute contempt of court

Things to check: statutory prohibitions (26(a) and 26(b))#

• Did they name the specific law? The authority must tell you which Act, regulation, or legal provision prohibits disclosure. Simply citing “section 26” of FOISA without naming the underlying law is not sufficient.

• Is it a prohibition or a discretion? Some laws give authorities the power to withhold information without requiring them to. A discretion is not a prohibition. If the law says the authority “may” withhold rather than “must not” disclose, section 26 doesn’t apply. The Commissioner confirmed this in Decision 132/2007, where discretionary wording in the Agriculture Act 1947 meant section 26(a) could not apply.

• Does the prohibition cover your information? Check whether the law they cited actually applies to the specific information you asked for, not just to information of that general type.

• Does the prohibition have exceptions? Some statutory restrictions include carve-outs for disclosure in the public interest or to particular categories of person. If such an exception exists, section 26 may not apply.

Things to check: contempt of court (26(c))#

Section 26(c) applies where disclosing the information would constitute, or be punishable as, contempt of court. There are two routes to contempt:

• Breach of a court order — most commonly, an order under section 11 of the Contempt of Court Act 1981 prohibiting publication of names or identifying information. A court undertaking can also engage this provision.
• Prejudice to active proceedings — disclosure creating a real risk of prejudice or impediment to a fair trial or to the administration of justice, while proceedings are active or imminent.

“Court” is interpreted broadly. It covers not just the Court of Session and Sheriff Court, but also tribunals and bodies exercising judicial power — children’s hearings, the Mental Health Tribunal for Scotland, and employment tribunals.

When checking a 26(c) refusal:

• Did they identify a specific court order or basis for contempt? The authority must explain which court order would be breached, or why disclosure would prejudice active proceedings. A bare assertion that disclosure “would be contempt” is not enough.

• Is the court order still in force? Court orders can be varied, revoked, or may only apply while proceedings are active. If the order has been lifted or the proceedings concluded, the basis for the exemption may have fallen away.

• Does the order actually cover your information? A court order protecting the identity of individuals in one set of proceedings does not automatically cover all information the authority holds about those proceedings. The authority must show that the specific information you asked for falls within the scope of the order.

• Could the information be redacted rather than fully withheld? The Commissioner expects authorities to consider whether they can disclose the substance of a document with identifying details removed. However, the Commissioner has accepted that where redaction would render a document “incoherent or even meaningless,” complete withholding can be justified.

• Would disclosure genuinely identify a protected person? The Commissioner applies a “jigsaw identification” test — considering whether information, combined with material already in the public domain, could realistically lead to identification of someone protected by a court order. But the test has limits: information that merely “permits assumptions” without enabling confirmation of identity may not be enough to engage the exemption (Decision 279/2025).

• Are they over-applying the exemption? In Decision 279/2025, the Commissioner found the authority had applied section 26(c) too broadly, withholding material that would not genuinely breach the court orders in question. The authority must provide “sufficiently compelling arguments” for each piece of withheld information, not just a blanket claim.

Use the interactive tool#

Answer the questions below to check whether section 26 has been properly applied to your request.