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Law Enforcement and Investigative Files Exemption

Nearly all right to information laws around the world include an exemption to public disclosure for information in order to protect the rule of law and the administration of justice. This exemption is designed to protect documents when untimely disclosure would jeopardise criminal or civil investigations, or cause harm to persons involved (for example witnesses). The exemption is therefore not confined to criminal proceedings, but sometimes extends to all legal proceedings.  

In more progressive laws, information may be exempt if its disclosure would reasonably be expected to have adverse consequences on the law enforcement process, and the public interest in its disclosure would not outweigh the harm—requisite harm and public interest tests, respectively. Some RTI laws further provide an inclusive list of identifiable harms. Moreover, the government entity should be forced to provide “satisfactory reasons” which are “germane”, “reasonable” and “based on some material”, rather than a mere assertion that information is related to an investigation.

The stage of proceedings is relevant for assessing the potential harm resulting from disclosure. When the prosecution has been completed, the potential harm from disclosure is minimal or non-existent. When the investigation is merely suspended or dormant rather than permanently closed, or where new information may revive an investigation, the exemption should apply only when the expectation that an investigation may revive is more than speculative or theoretical, and supported by evidence. The mere existence of an investigative process should not be enough to refuse access.

Law enforcement exemptions should also not apply to an agency’s own obligations to comply with the law. The exemption cannot apply to routine techniques and procedures that are already in the public knowledge or documents containing general information (for example, the information on crime statistics is not entitled to exemption). Some laws also expressly preclude the application of the exemption to the “general conditions of the detention of persons in custody.”

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