Section 40 - Audit functions

What this exemption means#

The authority is saying that disclosing the information would substantially prejudice its ability to carry out audit functions - specifically, auditing other public authorities’ accounts or examining how efficiently they use their resources.

This is a qualified exemption, so the authority must pass the public interest test even if the exemption itself applies.

What the authority must show#

Section 40 has two separate limbs:

• Section 40(a) - disclosure would substantially prejudice the authority’s functions relating to the audit of accounts of other Scottish public authorities
• Section 40(b) - disclosure would substantially prejudice the authority’s functions relating to examining the economy, efficiency and effectiveness with which other authorities use their resources

For either limb, the authority must:

1. Be an authority that actually carries out audit functions - this exemption is mainly relevant to Audit Scotland and similar bodies
2. Explain the specific prejudice that disclosure would cause to those functions
3. Show the prejudice would be substantial - real and of demonstrable significance, not marginal
4. Show the information is less than 15 years old
5. Carry out and explain a public interest test

Things to check#

• Is this the right authority? Section 40 protects the audit functions of bodies that audit other public authorities. If the authority that refused your request doesn’t carry out audit functions over other public bodies, this exemption doesn’t apply. A body can’t use section 40 to protect its own internal audit processes.

• Did they explain the specific harm? The authority must show how disclosing this particular information would substantially prejudice its ability to carry out audits. A general argument that releasing audit-related information would be harmful is not sufficient - the prejudice must be specific to this information.

• Is the prejudice substantial? The threshold is high - the prejudice must be real and of demonstrable significance, not speculative or marginal. There must be at least a significant probability of the harm occurring.

• Is the audit concluded? If the audit the information relates to has been completed and the report published, the case for prejudice is significantly weaker. The authority would need to explain why disclosure would still harm future audit work.

• Did they consider the public interest? There is often a strong public interest in understanding how public money is spent and how audit processes work. The authority must weigh this against the claimed harm.

Use the interactive tool#

Answer the questions below to check whether section 40 has been properly applied to your request.