Regulation 10(5)(b): The course of justice and inquiries

When disclosure of environmental information would substantially prejudice the course of justice, a fair trial, or a criminal or disciplinary inquiry.

The course of justice and inquiries#

Regulation 10(5)(b) of the EIR(S) allows an authority to refuse your request if disclosure would, or would be likely to, substantially prejudice the course of justice, a person’s right to a fair trial, or a public authority’s ability to conduct a criminal or disciplinary inquiry.

In plain terms#

The authority is saying that releasing the information would interfere with legal proceedings, a criminal investigation, or a disciplinary process. This might be an environmental enforcement case, a prosecution for pollution offences, or a regulatory investigation.

SEPA is investigating a company for an illegal discharge into a river. You ask SEPA for information about the investigation. SEPA withholds the enforcement file, arguing that disclosure would prejudice the criminal investigation and any future prosecution. Whether this holds depends on how live the investigation really is.

The legal detail#

Regulation 10(5)(b) covers three separate interests:

the course of justice - active proceedings in the courts, or proceedings being prepared
the ability of a person to receive a fair trial - the right of the accused to a fair hearing, including protection from “trial by media” and safeguards for the presumption of innocence
the ability of any public authority to conduct an inquiry of a criminal or disciplinary nature - criminal investigations, regulatory enforcement, and internal disciplinary proceedings

The Aarhus Convention Implementation Guide says “the course of justice” refers to active judicial proceedings or proceedings in preparation. The exception does not apply simply because the information was once part of a court case. Once proceedings have concluded, the authority should make every effort to release the information unless it can show harm to further ongoing proceedings.

Only criminal or disciplinary inquiries are covered. Civil or administrative investigations are not protected by this exception.

This is a substantial prejudice exception. The authority must demonstrate real harm - not just that an investigation exists. In Decision 093/2012, the Commissioner highlighted the importance of demonstrating substantial prejudice and not simply confirming that a relevant investigation is ongoing.

The public interest test#

The public interest test applies as with all EIR(S) exceptions. Where the information concerns environmental harm - pollution, contamination, regulatory failures - the public interest in accountability may outweigh the interest in protecting proceedings.

The authority must apply the presumption in favour of disclosure. See What can they refuse? for how the public interest test works under the EIR(S).

How it’s used in practice#

This exception comes up frequently in environmental enforcement. The Commissioner takes a practical approach: the exception can apply while an investigation is genuinely live, but authorities cannot sit on information indefinitely by claiming a vague connection to possible future proceedings.

In Decision 001/2010, Scottish Ministers withheld information about enforcement action at fish farms. The Commissioner could not accept that there was a reasonable prospect of criminal proceedings - the mere theoretical possibility of prosecution was not enough.

In Decision 009/2011, Loch Lomond and the Trossachs National Park Authority withheld information about an environmental enforcement matter. The Commissioner found that the enforcement action and the breach which led to it had ceased some time before the request. Any future criminal proceedings would need a fresh investigation. The exception was not upheld.

The exception can also cover legal professional privilege, particularly litigation privilege - documents created in contemplation of litigation. In Decision 142/2014, the Commissioner accepted that litigation was in genuine prospect and that the requirements of litigation privilege were met. But in Decision 019/2012 (Fife Council), a factual report containing only the most basic information was found to be too thin to support the exception.

Under section 48 of FOISA (which also applies to the EIR(S)), the Commissioner cannot consider appeals relating to information held by the Lord Advocate or Crown Office in connection with criminal prosecutions and deaths investigations.

How to challenge it#

Is the investigation still live? This is the key question. If the prosecution is concluded, the inquiry closed, or the disciplinary process finished, the risk of prejudice drops sharply. Ask when the proceedings ended and argue that the information should now be released.

Is the prejudice real? The authority must show specific harm, not just point to the existence of an investigation. Challenge claims that are generic or boilerplate. The Commissioner expects a case-by-case assessment, document by document.

Is the information factual? Even within an enforcement file, factual information (monitoring data, measurements, inspection reports) may be capable of release without prejudicing proceedings. Ask the authority to separate out the factual material.

See What to do if refused for the full process.

You can also use our interactive challenge tool for this exception to work through these questions step by step and draft a review request.

Good to know: The emissions carve-out in regulation 10(6) does not apply to this exception - it can be used even where the information relates to emissions. Under FOISA, this exception combines the ground covered by section 34 (investigations by Scottish public authorities) and section 35 (law enforcement). One important difference: FOISA section 36(1) provides a specific exemption for legal professional privilege; the EIR(S) have no direct equivalent, but litigation privilege can fall within the scope of regulation 10(5)(b) in some cases.