FOIA Section 34 Exemption

Section 34: Parliamentary Privilege

Section 34 applies to information whose exemption is required in order to avoid an infringement of the privileges of either House of Parliament. The purpose of section 34 is to preserve Parliamentary privilege and protect the position of Parliament.

Key points

• Section 34 will need to be considered where a public authority is required to lay information before Parliament before disclosing it to anyone else.
• If privileged information has been published by Parliament then section 34 will not apply: exemption is not required in order to avoid an infringement of Parliamentary privilege.
• Section 34(3) enables the Parliamentary authorities to conclusively certify that section 34 applies. Departments are strongly advised to consult officials from the relevant House before relying on section 34 and to obtain a certificate where necessary.
• Section 34 is not subject to any public interest test balance.

What the law says

34 Parliamentary privilege

(1) Information is exempt information if exemption from section 1(1)(b) is required for the purpose of avoiding an infringement of the privileges of either House of Parliament.

(2) The duty to confirm or deny does not apply if, or to the extent that, exemption from section 1(1)(a) is required for the purpose of avoiding an infringement of the privileges of either House of Parliament.

(3) A certificate signed by the appropriate authority certifying that exemption from section 1(1)(b), or from section 1(1)(a) and (b), is, or at any time was, required for the purpose of avoiding an infringement of the privileges of either House of Parliament shall be conclusive evidence of that fact.

(4) In subsection (3) “the appropriate authority” means—

(a) in relation to the House of Commons, the Speaker of that House, and

(b) in relation to the House of Lords, the Clerk of the Parliaments.

Examples of FOI requests refused via s34

Both Houses publish a list of FOI requests[1][2], together with details of any exemptions used. This can give an indication of how frequently they use this FOI exemption.

House of Commons

• NB: The list below is not a complete record owing to documents for 2009 part 1 and 2008 missing from the Parliament website (they incorrectly show the HoL versions) [3]

• 08/07/09 - All communications between Department and relevant committee requesting pre-appointment hearing for 2 specified appointments - Some information provided and some information refused [s34].
• 21/07/09 - Appeals process iro redactions - Information exempt [s34] and [s40]
• 23/07/09 - Nomination forms iro election of the Speaker - Information exempt [s34]
• 23/07/09 - Members who voted in Speaker ballots - Information exempt [s34]
• 06/10/09 - Correspondence re a meeting between named members & senior officials concerning release of members expenses under FOI - Some information provided, some exempt [s34], [s40] and [s42]
• 17/09/09 - Minutes/transcripts of MEC - Information exempt [s34]
• 03/09/09 - Copies of documents given to Committee this year by Ukrainian authorities detailing licensing of UK registered brokers in Ukraine - Information exempt [s34]
• 15/12/09 - Number of complaints the Parliamentary Commissioner for Standards has received since April, their nature, etc - Information exempt [s34] [s22]
• 16/12/09 - Number of investigations and complaints completed by the Standards Commissioner - Some information provided, some exempt[s.34] and [s.22]

• 09/02/07 - HC/CP/13526 & HC/CP/16500 Home Affairs Sele ct Committee draft reports and papers re: Security Service - Partial s34 exemption. Some information already in public domain. Newsletter to be disclosed
• 17/01/07 - Questions re: bar and catering outlets in the Palace and the subsidy level for food and drink - Disclosure of some of the information would infringe parliamentary privilege [Partial s34]
• 26/01/07 - Evidence submitted to the JCHR by the Childrens' Commissioner re: Hillingdon Council 'de-accommodating' children - Disclosure would infringe parliamentary privilege. [Full s34]
• 26/01/07 - Evidence submitted to the JCHR re: Johnson v Havering LBC heard on 11/1/7 in the Court of Appeal - Disclosure would infringe parliamentary privilege. [Full s34]
• 02/02/07 - HC/CP/15281/1: Foreign Affairs Committee (1998/9), Sierra Leone Correspondence - Disclosure would infringe parliamentary privilege. [Full s34]
• 22/02/07 - All documents re: the smoking ban affecting bars, MPs' private offices, and other areas in the PoW - Letters and minutes provided. Other Partial s34, s36, s42 exemption.
• 20/02/07 - 4 questions re: the National Identity card, national identity database, and Data Protection concerns - Partial s34 exemption. Library SN and research paper disclosed.
• 01/02/07 - JCHR's Legal Adviser's opinions on Bills which are under scrutiny and Acts which have been passed - Disclosure would infringe the parliamentary privilege. [Full s34]
• 20/02/07 - Memoranda and minutes of the Science & Tech Committee re: animal/ human hybrid embryos - Memoranda to be published shortly. Minutes refused. Partial s34, partial s36 exemption.
• 16/03/07 - HC/CP/15167/9, HC/CL/EU/2/35/12985, HC/CL/EU/2/142/14395, HC/CL/EU/2/151/14930 - Disclosure of some of the information would infringe parliamentary privilege. [Partial s34]
• 27/03/07 - All documents re: the decision to prevent the use of the flagpole on PCH 'on health and safety grounds' - All held correspondence provided. Admin C'tee paper covered by privilege though minutes provided. [Partial s34]
• 21/03/07 - Copies of Commission minutes in which FOI & public authorities, and FOI (Amendment) Bill were discussed - Disclosure of Commission minutes would inhibit internal discussions; MEC minutes are privileged. [Full s36 s34]
• 10/04/07 - 5 questions re. the electronic tabling of questions and motions by MPs - Disclosure of some of the information would infringe parliamentary privilege. [Partial s34]
• 12/04/07 - Confirm that a named councillor commented on a draft report; who was responsible for list of witnesses - Disclosure of the information would infringe parliamentary privilege. [Full s34]
• 01/05/07 - Communications from the Treasury C'tee and its secretariat regarding Ordinary and Income shareholders - Letters provided though name redacted [partial s40] and partial s34 to another.
• 18/06/07 - Information held by the Speaker's Office re: FOI (Amendment Bill) and release of staff names and salaries - Partial s40, s34, s36, s42. Some information disclosed.
• 16/05/07 - Wording of notification to Chair of Public Accounts C'tee and all supporting info passed to him - Information subject to parliamentary privilege as it relates to unpublished proceeding of a sele ct c'tee. [Full s34]
• 18/06/07 - Papers submitted by Durham County Council to Transport C'tee enquiry on the Transport Innovation Fund - Any documents held would be subject to parliamentary privilege. [Full s34]
• 13/06/07 - Information relating to Education Targeted Capital Funding and Building Schools for the Future programmes - Link to published documents provided. Enquiry information subject to parliamentary privilege. [Partial s34]
• 24/07/07 - Information relating to PAC decision not to hold enquiry into NAO report on Portsmouth University - Disclosure of the information would constitute a breach a parliamentary privilege. [Full s34]
• 22/11/07 - Information re: Comms Allowance; unedited minutes & related papers re: FOI held by or prepared for MEC - Provision would exceed appropriate limit. Names removed. Other information privileged. [Partial s40, s34]
• 16/11/07 - Cost of appeal against the ICO; papers relating to the decision behind withdrawal of appeal; disclosed info - Cost of appeal not held; information relating to decision subject to parliamentary privilege [Partial s34].
• 28/11/07 - Written communication between Public Accounts C'tee & NAO re. C'tee's findings on 2005 stroke report - Information subject to parliamentary privilege as it relates to unpublished proceeding of a sel ect c'tee. [Full s34]
• 19/12/07 - Closed archive file - correspondence relating to marriage of Prince of Wales 1981-84 & birth of Prince Harry - Not fully disclosed: closed items exempt due to parliamentary privilege [partial s34]

• 10/02/06 - Access to European Scrutiny Committee file on Social Exclusion. (HC/CL/EU/2/142/14395) - Several documents declassified from 'closed' to 'open', others subject to parliamentary privilege. [Partial s34]
• 18/01/06 - Details of meetings between Standards Commissioner & a named MP & copies of correspondence re: a complaint - Information held, but investigations are covered by parliamentary privilege. [Full s34]
• 19/01/06 - Details of current investigations by the Standards Commissioner into MPs and research assistants - Policy provided. Investigations covered by privilege. Other information either not held or published. [Partial s34, s21]
• 22/02/06 - Correspondence re: allegations or conflict of interest or breaches of the Code of Conduct by 3 named MPs - No ongoing investigations although investigations are covered by parliamentary privilege. [Partial s34]
• 13/03/06 - Access to archived files re: social exclusion. (HC/CL/EU/2/35/12985, HC/CL/EU/2/151/14930) - Several documents declassified from 'closed' to 'open', others subject to parliamentary privilege. [Partial s34]
• 13/03/06 - Access to European Legislation Committee files. (HC/CL/EU/2/103/12783, HC/CL/EU/10964, HC/CL/EU/1/10954) - Documents not subject to parliamentary privilege provided. [Partial s34]
• 27/04/06 - Access to a closed Clerk Assistant's file and a number of Home Affairs and Race Relations Committee files - Majority of files opened in full. A number closed under s34. 2 kept partially closed under s40 and s34.
• 19/06/06 - A copy of all material relating to the Treasury Committee's 5th report of 94-95 and 4th report of 95-96 - Some files open, others kept closed (partial s34 exemption). Personal information redacted under s40.
• 21/06/06 - Request for access to all documents relating to the applicants' complaint re: a named MP. Full s34 exemption.
• 27/07/06 - Request for unredacted evidence from Culture, Media & Sport Committee's 6th Report of 01/02 - Full s34 exemption.
• 25/07/06 - Request for access to closed Home Affairs Committee file. (HC/CP/7955) - Full s34 exemption.
• 28/07/06 - 3 questions relating to EIR 2004 and consideration by Joint Committee on Statutory Instruments - Partial s34 exemption. Advice given to the Committee not disclosable.
• 25/09/06 - Request for access to closed file European Scrutiny Committee file re: EU/Hong Kong. (HC/CL/EU/2/208/18072) - Partial s34 exemption.

House of Lords

• To be added

ICO Lines To Take

Relevant Lines to Take

LTT107 - No prejudice / adverse effect test for class based exemptions / exceptions - 20/06/2008

Decision Notices

Complaints upheld / partly upheld (P)	Complaints not upheld
None	FS50137246 - Ministry of Defence - 15/10/2009 FS50224829 - House of Commons - 22/04/2009 FS50116013 - House of Commons - 06/08/2007

Includes DNs up to: 26 April 2010

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