Section 26: Prohibitions on disclosure

When disclosure is prohibited by another law or court order.

Section 26 of FOISA exempts information where another law specifically bans its disclosure, or where releasing it would be contempt of court. This is a narrow exemption with a high bar.

In plain terms#

The authority is saying: we’re not just choosing to withhold this - we’re legally prohibited from releasing it. A different law, or a court order, makes disclosure unlawful. Think of tax records protected by revenue legislation, or information covered by a court order restricting publication.

The legal detail#

Section 26 of the Freedom of Information (Scotland) Act 2002 provides that information is exempt if its disclosure (other than under FOISA itself) is:

(a) prohibited by or under an enactment
(b) incompatible with an assimilated obligation, or
(c) would constitute, or be punishable as, contempt of court

The reference to “assimilated obligation” in section 26(b) replaced “EU obligation” after Brexit. Retained EU law was renamed assimilated law under the Retained EU Law (Revocation and Reform) Act 2023. In practice, this limb is now rarely relevant.

Absolute or qualified?#

This exemption is absolute. No public interest test applies. If disclosure is genuinely prohibited by another law, that prohibition overrides FOI.

How it’s used in practice#

This exemption comes up less often than you might expect, because relatively few statutes contain outright bans on disclosure. When it does appear, it’s usually because specific legislation restricts access to certain categories of information. Revenue and tax statutes are common examples, as are provisions restricting disclosure of information gathered under regulatory powers.

The contempt of court limb applies where a court order prohibits publication, or where disclosure would prejudice active legal proceedings in a way that amounts to contempt.

The authority must identify the specific legal prohibition. A refusal letter that says “we are legally prevented from disclosing this” without naming the statute or court order is not good enough. The Commissioner expects authorities to cite the precise provision that prohibits disclosure and to explain how it applies to the information you asked for.

Authorities sometimes confuse section 26 with other exemptions. A legal restriction on how information can be used is not the same as a prohibition on disclosure. Similarly, a duty of confidentiality (which would fall under section 36) is different from a statutory prohibition. The bar for section 26 is that disclosure must be specifically forbidden, not just that the authority would prefer not to release it.

How to challenge it#

Ask which specific law or court order prevents disclosure. If the refusal letter doesn’t identify one, that’s a strong basis for a review request. If they do name a statute, check whether it actually prohibits disclosure of the information you asked for, or whether it restricts something narrower.

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

If the authority cites contempt of court, check whether the relevant court order actually covers the information you requested and whether the proceedings are still active.

See What to do if refused for the full process.

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

Good to know: Section 26 has no time limit. The exemption lasts as long as the legal prohibition remains in force. If the statute is repealed or the court order is lifted, the exemption falls away.