Section 37: Court records

When the authority holds the information solely because it is contained in court, inquiry or arbitration documents.

Court records#

Section 37 of FOISA exempts information contained in documents connected to court proceedings, public inquiries, and arbitrations - but only where the authority holds that information solely because of the court document. This is one of the narrower exemptions, and the “solely because” condition is the key to challenging it.

In plain terms#

The authority is saying: we only have this information because it’s in a document that was lodged with, served by, or created by a court (or inquiry or arbitration). The proceedings have their own rules about access to documents, and FOI shouldn’t override those.

You ask a council for a copy of its written submissions in a planning dispute that went to court. The council refuses under section 37, saying the submissions were lodged with the court for the purposes of the proceedings.

The legal detail#

Section 37(1) exempts information contained in a document that has been:

lodged with a court or placed in the custody of a court, for the purposes of proceedings in a case (s.37(1)(a)(i))
served on or by a Scottish public authority for the purposes of court proceedings (s.37(1)(a)(ii))
created by a court or its administrative staff for the purposes of proceedings (s.37(1)(a)(iii))
lodged with a person conducting an inquiry or arbitration, for those purposes (s.37(1)(b)(i))
created by a person conducting an inquiry or arbitration, for those purposes (s.37(1)(b)(ii))

In every case, the exemption only applies if the authority holds the information solely because it is contained in such a document. “Court” is defined broadly in section 37(2) to include any tribunal or body exercising the judicial power of the state - Sheriff Courts, the Court of Session, the High Court of Justiciary, Employment Appeal Tribunals, the Mental Health Tribunal, and others.

There is one specific exception: information held for the purposes of an inquiry under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 is not exempt under section 37 (s.37(3)). Other exemptions like section 34 might still apply to such information.

Absolute or qualified?#

Section 37 is absolute. There is no public interest test. If the exemption applies, the authority does not need to weigh up public interest arguments.

How it’s used in practice#

The “solely because” condition does most of the work here. An authority can only rely on section 37 if the court document is the sole reason it holds the information. If the authority also holds the same information for its own business purposes - in internal files, briefing papers, or records created independently of the court proceedings - then section 37 does not apply to those separately held copies.

The Commissioner has tested this distinction in practice. In one case, a council tried to withhold statements of reasons under section 37 because they had been lodged in court for an appeal. The Commissioner rejected this. The council had been required to create the statements under the Civic Government (Scotland) Act 1982, independently of the court proceedings. Lodging them with the court did not change the fact that the council held them for its own regulatory functions.

Similarly, the Risk Management Authority held statistical data that had been derived from a spreadsheet it maintained for its own administrative purposes. Although some of that data appeared in court proceedings, the Authority held it independently. The Commissioner found section 37 did not apply.

The proceedings must have actually commenced for the exemption to bite. Documents prepared in anticipation of proceedings that have not yet started are not covered by section 37, though section 36(1) - legal professional privilege - might apply instead.

How to challenge it#

Ask whether the authority holds the same information in any other form. If it has internal briefings, reports, correspondence, or records covering the same ground as the court documents, those copies are not caught by section 37. The authority must consider each copy separately.

Check whether the authority created the information for its own purposes before lodging it with the court. If a document existed in the authority’s own records before it became part of court proceedings, the authority does not hold it “solely because” of those proceedings.

If the proceedings have concluded and the documents are part of the public court record, consider whether you can obtain them directly from the court. Court records are often accessible through the Scottish Courts and Tribunals Service.

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 37 generally cannot apply to information more than 15 years old. Neither confirm nor deny (NCND) is not available for section 37 - it is not listed in section 18 of FOISA. Fatal accident inquiries under the 2016 Act are specifically excluded from section 37 - if an authority cites this exemption for such an inquiry, it has applied the wrong provision.