FOIA Section 44 Exemption

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Section 44: Prohibitions On Disclosure

Section 44 applies to three distinct categories of information:

  1. If there is an existing statutory bar to the disclosure of information by a public authority then that information will be exempt;
  2. If disclosure would be incompatible with a European Community obligation then the information will be exempt; and
  3. If disclosure would constitute or be punishable as a contempt of court at common law (for example because it would breach a court order) then it will be exempt.

Key points:

  • The Human Rights Act 1998 can be a statutory bar to the disclosure of information if to do so would breach one of the Convention rights that have been incorporated into domestic law;
  • Section 44 is not subject to any public interest balance.

What the law says

44 Prohibitions on disclosure

(1) Information is exempt information if its disclosure (otherwise than under this Act) by the public authority holding it—
(a) is prohibited by or under any enactment,
(b) is incompatible with any Community obligation, or
(c) would constitute or be punishable as a contempt of court.
(2) The duty to confirm or deny does not arise if the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) fall within any of paragraphs (a) to (c) of subsection (1).

Decision Notices

  • Commissioners for Revenue and Customs Act 2005
  • HM Revenue and Customs FS50168774 s44 applied correctly


  • Companies Act - section 447
  • Department of Trade and Industry FS50071795 s44 not applied correctly by the DTI


  • Data Protection Act 1998
  • Standards Board for England FS50064699 s44 applied correctly
  • Maldon District Council FS50087443 ["The Commissioner is not convinced of the relevance of s.7(4) of the DPA to the complainant’s request. S.7(4) only comes into play in the context of a subject access request made under the DPA by an individual seeking access to information about himself. In this case, no subject access request was made]


  • Enterprise Act 2002
Office of Fair Trading (OFT) FS50090136 s44 not applied correctly by the OFT


  • Financial Services and Markets Act 2000 - section 348
  • Financial Services Authority FS50069723 s44 applied correctly
  • Department of Trade and Industry FS50065858 s44 applied correctly [section 179 of the Financial Services Act 1986. Although this statute has since been repealed, the restrictions are effectively continued by s.348 of FSMA 2000]


  • Police Act 1996 - section 80
  • Independent Police Complaints Commission FS50069386 s44 applied correctly


  • Premium Savings Bond Regulations 1972
  • National Savings and Investments FS50101920 s44 applied correctly, confirmed at Information Tribunal (EA/2006/0010)


  • Utilities Act 2000 - section 105
  • Office of Gas and Electricity Markets (OFGEM) FS50070198 s44 applied correctly



to be completed, more decisions to be added

Freedom of Information Act 2000
Exemptions
12 21 22 22A 23 24 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44