Freedom of Information Act 2000
2000 CHAPTER 36
Commentary on Sections
Schedule 3: Powers of entry and inspection
260.This Schedule sets out the circumstances in which, where he suspects a contravention of the Act, the Commissioner may seek a warrant enabling him to enter and search premises and seize material. The powers are comparable to the ones available to him under Schedule 9 to the Data Protection Act 1998.
Issue of Warrants
261.Paragraph 1(1) allows a circuit judge to issue a warrant to the Commissioner where the judge is satisfied by information from the Commissioner on oath that there are reasonable grounds for suspecting either that the public authority has failed or is failing to comply with any of the requirements of Part I of the Act, so much of a decision notice as requires steps to be taken, or an information notice or enforcement notice, or that an offence under section 77 has been or is being committed. The judge must also be satisfied that evidence of the failure or of the offence is to be found on the premises specified.
262.Paragraph 1(2) sets out the action that may be taken under the warrant. The Commissioner or his officers or staff may, within seven days, enter and search the premises in question and inspect, examine, operate and test any relevant equipment. They may inspect and seize any documents or other material which may be evidence of the alleged contravention or offence.
263.Paragraph 2(1) sets out further conditions for the issue of a warrant. The judge must be satisfied that:
the Commissioner has given seven days’ notice in writing to the occupier of the premises demanding access;
access was demanded at a reasonable hour and was unreasonably refused; or, if entry was granted, the occupier refused unreasonably to comply with a request; and
the occupier has been notified by the Commissioner of the application for the warrant and has had an opportunity of being heard by the judge.
264.Paragraph 2(2) says that the above conditions do not apply if the judge is satisfied that the case is one of urgency, or that meeting the conditions would defeat the purpose for which the warrant is being sought.
265.Paragraph 3 requires the judge to issue not only the warrant but also two certified copies of it.
Execution of warrants
266.Paragraph 4 allows necessary, reasonable force to be used in executing a warrant.
267.Paragraph 5 requires the warrant to be executed at a reasonable hour unless there are grounds for suspecting that doing so would mean that the evidence would not be found.
268.Paragraph 6 requires the person occupying the premises to be shown and given a copy of the warrant if he is present when it is executed. If the occupier is not present, a copy of the warrant must be left prominently on the premises.
269.Paragraph 7 requires a receipt to be given, if sought, for anything seized. It also provides for anything seized to be retained as long as is necessary. The person occupying the premises must be given a copy of anything that is seized if he asks for it and if this can be done without undue delay.
Matters exempt from inspection and seizure
270.Paragraph 8 exempts from the powers conferred by a warrant information which is exempt from any of the Act’s provisions by virtue of sections 23(1) or 24(1) (the exemptions relating to national security).
271.Paragraph 9(1) prohibits the exercise of the power authorised by a warrant in respect of any communication between a professional legal adviser and his client in connection with the client’s obligations, liabilities or rights under the Act, or other specified communications relating to proceedings or possible proceedings under the Act. These include proceedings before the Tribunal.
272.Paragraph 9(2) makes clear that the prohibition in paragraph 9(1) also applies to copies or other records of such communications, and anything enclosed with or referred to in any such communication, if the communication is made in connection with the giving of such advice or in relation to such proceedings as are mentioned.
273.Paragraph 9(3) provides that paragraph 9 does not apply to anything in the possession of any person other than the professional legal adviser or his client, or to anything held with the intention of furthering a criminal purpose.
274.Paragraph 9(4) provides that references in paragraph 9 to the client of a professional legal adviser include references to any person who may be representing the client.
275.Paragraph 10 deals with the situation in which material consists partly of matters covered by the warrant and partly of matters not covered by the warrant. In such a case, if the person executing the warrant requests him to do so, the occupier of the premises must provide a copy of so much of the material as is covered by the warrant.
Return of warrants
276.Paragraph 11 requires warrants to be returned to the issuing court whether or not they have been executed. The warrant must contain an endorsement by the relevant person of the powers which have been exercised under it.
277.Paragraph 12 makes it an offence for a person intentionally to obstruct another in the execution of a warrant, or to fail without reasonable excuse to give the person executing a warrant such assistance as he may reasonably require.
Vessels, vehicles etc
278.Paragraph 13 defines “premises” for the purpose of the Schedule as including vessels, vehicles, aircraft or hovercraft. References to occupiers of premises include references to the people in charge of the vessels etc.
Scotland and Northern Ireland
279.Paragraph 14 provides for the interpretation of the Schedule in Scotland according to the procedures and terminology which apply there.
280.Paragraph 15 makes similar provision for Northern Ireland.
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