Section 34 - Investigations by Scottish public authorities

Challenge a refusal under FOISA section 34 - the authority says the information relates to investigations or proceedings

What this exemption means#

The authority is saying the information was held for the purposes of a criminal investigation, a Fatal Accident Inquiry, an investigation involving confidential sources, or related civil proceedings. This exemption is rarely used against members of the public.

This is a qualified exemption, and all parts are class-based - the authority does not need to demonstrate harm, only that the information falls within the relevant category. But the public interest test still applies, and it is the key consideration.

What the authority must show#

Section 34 has four parts:

Section 34(1) - information held for criminal investigations or proceedings. The authority must have a duty to investigate, or the investigation must be one that may lead to a report to the Procurator Fiscal.
Section 34(2) - information held for a Fatal Accident Inquiry (while ongoing) or for other investigations into cause of death
Section 34(3) - information relating to obtaining information from confidential sources. Two conditions must both be met: the investigation must be under statute/prerogative, and the information must relate to the process of obtaining information from confidential sources
Section 34(4) - information held for civil proceedings arising from investigations under 34(1) or 34(3)

For all parts, the authority must carry out and explain a public interest test.

Things to check#

Was the information actually held for investigation purposes? The exemption only applies to information held for the purposes of the investigation. Information recorded for other purposes - such as accounting, administration, or general record-keeping - is not covered, even if it relates to the same subject matter.
Does the authority actually conduct such investigations? Section 34(1) requires the authority to have a duty to investigate, or to conduct investigations that may lead to reports to the Procurator Fiscal. Not all public authorities have these powers.
“At any time” - but the public interest test matters most. Information is exempt if it was held for investigation purposes “at any time” - even after an investigation is complete. But this makes the public interest test crucial. The Commissioner has ordered disclosure of very old investigation material where there was no realistic prospect of harm.
Section 34(3) requires both conditions. Both parts of section 34(3) must be satisfied - (a) the investigation must be under statute or prerogative, and (b) the information must relate to the process of obtaining information from confidential sources. One without the other is not enough.

Use the interactive tool#

Answer the questions below to check whether section 34 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.

Accountability of investigating bodies The public has a right to scrutinise how police, regulators, and other bodies conduct their investigations
Transparency on matters of public concern Where an issue has attracted significant public attention, there is a strong interest in understanding how it was handled
Factual or procedural information The information sought relates to facts, timelines, or procedures rather than sensitive investigation techniques
Scrutiny of public resources The public has a right to know whether resources were used properly in the conduct of investigations
Passage of time As investigations conclude and time passes, the case for continued withholding diminishes

What authorities typically argue

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

Protecting ongoing investigations Authorities argue that disclosure could prejudice current or future criminal, regulatory, or disciplinary investigations
Maintaining public cooperation People and witnesses need confidence that information they provide will be kept confidential, or they may stop cooperating
Protecting the justice system Evidence and investigation materials should be managed through proper legal channels, not disclosed publicly
Revealing investigation techniques Disclosing how investigations are conducted could help people evade detection or obstruct justice
Preserving fair proceedings Premature disclosure could prejudice a fair hearing or trial for those under investigation

Factors that tipped the balance

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

Information was factual or procedural The Commissioner found the information related to facts, timelines, or procedures rather than sensitive investigation methods
No evidence of specific harm The authority failed to demonstrate that disclosing this particular information would actually prejudice the investigation or proceedings
Investigation or proceedings concluded The investigation was complete and there was no ongoing process that could be prejudiced by disclosure
Passage of time reduced sensitivity Enough time had passed that the information no longer posed a risk to any ongoing process
Exemption applied too broadly The authority applied the exemption to information that did not genuinely relate to investigation or proceedings

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