Section 35: Law enforcement

When disclosure would prejudice the prevention or detection of crime, the administration of justice, or other law enforcement matters.

Law enforcement#

Section 35 of FOISA exempts information where disclosure would substantially prejudice a wide range of law enforcement functions - from crime prevention and prosecution to tax collection, immigration controls, and regulatory enforcement.

In plain terms#

The authority is saying: releasing this information would seriously harm its ability (or another body’s ability) to enforce the law. Unlike section 34, which protects information held for specific investigations, section 35 is about the effect of disclosure on law enforcement work more broadly.

You ask a council for records about its enforcement action against an unlicensed trader. The council refuses under section 35, arguing that disclosing its enforcement strategy would substantially prejudice its ability to detect future breaches.

The legal detail#

Section 35(1) exempts information where disclosure would, or would be likely to, substantially prejudice:

(a) the prevention or detection of crime
(b) the apprehension or prosecution of offenders
(c) the administration of justice
(d) the assessment or collection of tax or duty
(e) the operation of immigration controls
(f) the maintenance of security and good order in prisons or other lawful detention
(g) the exercise of a public authority’s regulatory and enforcement functions
(h) civil proceedings arising from those regulatory investigations

Section 35(2) lists the specific regulatory functions covered by section 35(1)(g). These include checking compliance with the law, investigating improper conduct, assessing fitness to manage companies or practise a profession, establishing the cause of an accident, protecting charities, and securing health and safety at work.

The harm test is substantial prejudice throughout. The authority must show that disclosure would cause real and significant damage to the enforcement function in question, not just inconvenience or embarrassment.

Absolute or qualified?#

This exemption is qualified. The public interest test applies. Even where the authority can demonstrate substantial prejudice to law enforcement, it must weigh that against the public interest in disclosure. See What can they refuse? for more on how the public interest test works.

How it’s used in practice#

Section 35 is the main exemption Police Scotland relies on, but it’s not limited to the police. Councils use it for trading standards, licensing enforcement, environmental health, and planning enforcement. Regulators use it for their compliance and investigation work. Revenue Scotland and other bodies use it for tax-related functions.

The distinction between section 34 and section 35 matters. Section 34 is class-based - it protects information held for the purposes of the authority’s own investigations, without needing to show harm. Section 35 is prejudice-based - it protects information whose disclosure would substantially prejudice law enforcement, regardless of who is investigating. You can hold information that falls under both exemptions, but the tests are different.

The age of the information is relevant. While enforcement action is ongoing or recently concluded, the risk of prejudice to future enforcement may be genuine. Once the matter is settled, the penalty paid, and the enforcement action completed, arguments that disclosure would cause substantial prejudice become harder to sustain. The Commissioner has rejected section 35 claims where the enforcement activity was long concluded and the risk of harm was speculative.

Section 35 also covers some less obvious ground. The health and safety limb under section 35(2) can apply to accident investigation reports. The charity protection limbs may be relevant when a regulator is examining a charity’s governance. And section 35(1)(c) - the administration of justice - can cover court processes and the justice system more broadly.

How to challenge it#

Check whether the refusal letter identifies which limb of section 35 applies and explains the specific prejudice. A generic claim that law enforcement would be harmed isn’t enough. The authority should say which enforcement function would be damaged, and how.

Consider whether the enforcement action is complete. If a prosecution has concluded, a penalty has been imposed, or the regulatory matter has been resolved, argue that the risk of prejudice has passed. The passage of time weakens the case for withholding.

Look at the public interest. There is a strong public interest in knowing how authorities enforce the law, how they use their enforcement powers, and whether enforcement action has been effective. Transparency supports public confidence in law enforcement.

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 35 generally cannot apply to information more than 100 years old. The authority can neither confirm nor deny whether it holds the information, but only where revealing whether the information exists or is held would be contrary to the public interest. If an authority cites both sections 34 and 35 in the same refusal, ask it to explain which exemption applies to which part of the information - they protect different things and have different tests.