Section 37 - Court records

What this exemption means#

The authority is saying the information is exempt because it is contained in a document that is part of court proceedings, an inquiry, or an arbitration. This exemption exists because courts are not public authorities under FOISA, so it prevents FOISA from being used as a back door to access court documents through the public authority that happens to hold a copy.

This is an absolute exemption, so there is no public interest test. But the exemption is narrow - it only applies if the authority holds the information solely because it is contained in a relevant court, inquiry, or arbitration document.

What the authority must show#

The authority must show that the information is contained in a document that was:

• Lodged with a court for the purposes of proceedings (section 37(1)(a)(i))
• Served on or by a Scottish public authority for the purposes of court proceedings (section 37(1)(a)(ii))
• Created by a court or its administrative staff for the purposes of proceedings (section 37(1)(a)(iii))
• Lodged with a person conducting an inquiry or arbitration for those purposes (section 37(1)(b)(i))
• Created by a person conducting an inquiry or arbitration for those purposes (section 37(1)(b)(ii))

Crucially, the exemption only applies if the authority holds the information solely because it is contained in such a document. If the authority also holds the same information for its own purposes, the exemption does not apply.

Things to check#

• Is the information actually in a court document? The exemption covers documents that have been lodged with, served for, or created by a court, inquiry, or arbiter. It does not cover all information that is merely about legal proceedings or related to a legal dispute.

• Does the authority hold the information solely because of the court document? This is the key test. If the authority holds the same information for its own business purposes - independently of it being in a court document - the exemption does not apply. For example, a contract that happens to have been lodged in court as evidence is still held by the authority for its own purposes. The contract itself would not be exempt, even though the court copy would be.

• Have the proceedings actually commenced? The exemption only applies where proceedings, an inquiry, or arbitration have actually started. Documents held in contemplation of future proceedings are not covered by section 37 (though they might be covered by section 36(1) - legal professional privilege).

• Is the information more than 15 years old? In general, section 37 cannot be applied to information that is more than 15 years old.

• Could you access the information through the court? Even if section 37 applies, you may be able to access the information directly through court records. Parties to proceedings generally have rights of access under court disclosure rules, and many court documents are publicly available.

• Is the authority confusing this with legal professional privilege? Section 37 is about documents that are actually part of court proceedings. If the authority is really saying the information is privileged legal advice, that falls under section 36(1), not section 37. The tests are different.

• Is this about a Fatal Accident Inquiry? Information held for a Fatal Accident Inquiry under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 is not exempt under section 37 (see section 37(3)). It may be covered by section 34 instead.

Use the interactive tool#

Answer the questions below to check whether section 37 has been properly applied to your request.