Section 34: Investigations by Scottish public authorities

Information held for investigations or proceedings conducted by a public authority - a class-based exemption with no harm test.

Investigations by Scottish public authorities#

Section 34 of FOISA exempts information held by a Scottish public authority for the purposes of certain investigations it conducts - criminal investigations, reports to the procurator fiscal, fatal accident inquiries, and information about confidential sources.

In plain terms#

The authority is saying: we hold this information because of an investigation we’re conducting (or have conducted), and releasing it could compromise that work. This exemption protects the investigation process itself, not just its outcome.

You ask Police Scotland for records relating to an investigation into fraud at a local business. Police Scotland refuses under section 34(1), because the information is held for the purposes of a criminal investigation.

The legal detail#

Section 34 covers several types of investigation:

Section 34(1) - information held for the purposes of a criminal investigation: deciding whether to prosecute someone, deciding guilt, an investigation that may lead to a report to the procurator fiscal, or criminal proceedings arising from such a report.

Section 34(2)(a) - information held for an ongoing fatal accident inquiry under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016.

Section 34(2)(b) - information held for an investigation into the cause of someone’s death, where the investigation is conducted by the authority and may lead to a decision to make a report to the procurator fiscal.

Section 34(3) - information obtained or recorded by the authority about confidential sources during certain investigations.

Section 34(4) - information held for the purposes of civil proceedings brought by the authority arising from investigations under section 34(1) or section 34(3) only.

This is a class-based exemption. The authority doesn’t need to show that disclosure would cause harm. It only needs to show that the information falls within one of these categories - that is, it was held for the purposes described.

Absolute or qualified?#

This exemption is qualified. The public interest test applies. Even where the information clearly falls within one of the classes above, the authority must still weigh the public interest in disclosure against the interest in withholding. See What can they refuse? for more on how the public interest test works.

How it’s used in practice#

Section 34 is used by any Scottish public authority that conducts investigations: Police Scotland, the Crown Office and Procurator Fiscal Service, local councils (trading standards, environmental health, social work), regulatory bodies, and health boards.

The key distinction is that section 34 covers investigations the authority itself conducts. If a council holds information about an investigation being carried out by another body - say, Police Scotland - section 34 doesn’t apply to the council’s copy. The council would need to rely on a different exemption, such as section 35 (law enforcement).

Because section 34 is class-based, there is no need to demonstrate specific harm. But the public interest test still has real teeth. If an investigation is complete, no proceedings are pending, and the subject matter is of legitimate public concern, the balance can tip in favour of disclosure.

The status of an investigation matters. While a criminal investigation is live and active, the public interest in protecting it will usually be strong. Once it has concluded - whether that means a prosecution has finished, a report has been submitted, or a decision has been taken not to proceed - the arguments for withholding diminish. The Commissioner has distinguished between live and concluded investigations in many decisions.

How to challenge it#

Ask what investigation the information was held for, and whether that investigation is still active. If it’s complete, argue that the public interest in protecting it has reduced.

Check whether the authority actually conducted the investigation itself. Section 34 only applies to the investigating authority’s own records held for investigation purposes. If the authority is relying on section 34 for information about someone else’s investigation, that’s the wrong exemption.

If the authority relies on section 34(2) in relation to a death, consider whether the fatal accident inquiry has concluded. Once the inquiry is over and findings have been published, the case for withholding background material is weaker.

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: Time limits vary across section 34. Information about the cause of death under section 34(2)(b) is subject to a 100-year limit. All other parts of section 34 have no time limit - the exemption can apply in perpetuity, though the public interest test still applies regardless of age. The authority can neither confirm nor deny whether it holds the information under section 34.