Commentary on Sections and Schedules Part 1: the Statistics Board Section 40 Freedom of Information
166.Section 44(1)(a) of the Freedom of Information Act 2000 provides that information is ‘exempt information’ for the purposes of that Act if its disclosure by a public authority is prohibited by or under any enactment. If information is ‘exempt information’ it need not be disclosed under that Act. By virtue of section 39 (the offence relating to disclosure of information), section 44(1)(a) applies in relation to information held by the Board. So information held by the Board is ‘exempt information’ for the purposes of the 2000 Act.
167.Subsections (1) and (2) of section 40 provide a limited qualification to section 44 of the Freedom of Information Act 2000 in the case of personal information which is passed by the Board to other public authorities. The effect is that the confidentiality obligation in section 39 will not trigger section 44 in such cases and the information will not automatically be exempt information for the purposes of the 2000 Act. That means that in respect of personal information received from the Board, a public authority, in response to a request for information made under the Freedom of Information Act 2000, may not refuse to disclose information by citing the absolute exemption in section 44 of the Freedom of Information Act 2000. However, the public authority may still cite other available absolute or qualified exemptions insofar as they are considered to apply to the information requested.
168.Section 26 of the Freedom of Information (Scotland) Act 2002 – like section 44 of the Freedom of Information Act 2000 – exempts information from release if its disclosure by a Scottish public authority would be prohibited by or under an enactment. Subsections (3) and (4) therefore provide that section 26 would not apply to personal information which is passed by the Board to a Scottish public authority. Consequently, information passed to Scottish public authorities by the Board will also not automatically be exempt information for the purposes of the Freedom of Information (Scotland) Act 2002.
169.This section will ensure, for example, that census records can continue to be disclosed by the National Archive in accordance with government policy, the Public Records Act 1958 and the Freedom of Information Act 2000.