The Public Audit (Wales) Act 2004 (Relaxation of Restriction on Disclosure) Order 2005

Explanatory Note

(This note is not part of the Order)

Section 54 of the Public Audit (Wales) Act 2004 (“the Act”) contains restrictions on disclosure of information. It is a criminal offence to breach those restrictions. The restrictions closely reflect the provisions of section 49 of the Audit Commission Act 1998 (“the Audit Commission Act”), thus maintaining consistency between England and Wales as regards criminal sanctions imposed by primary legislation.

Section 54(6) - (8) gives the Secretary of State the power to amend or repeal the preceding provisions of the section. The power can be used only if section 49 of the Audit Commission Act has already been amended or repealed, and only for the purpose of making equivalent changes to section 54 of the Act. It cannot be used to impose any further restriction on the disclosure of information under section 54.

Section 49 of the Audit Commission Act has been amended, since the Act was passed, by the Freedom of Information (Removal and Relaxation of Statutory Prohibitions on Disclosure of Information) Order 2004 (“the Freedom of Information Order”). Article 2 of the present Order amends section 54 of the Act in a manner which has the same effect as the amendments to section 49 of the Audit Commission Act.

Article 2(3) removes public authorities (within the meaning of the Freedom of Information Act 2000), or persons acting on their behalf, from the ambit of the restriction on the disclosure of information contained in section 54. Article 2(4) then inserts a new section 54A into the Act, dealing with the disclosure of information by or on behalf of such public authorities.

Like section 54, the new section applies only to information obtained by the Auditor General for Wales, or an auditor (as defined in section 59(2) of the Act), pursuant to a provision of Part 2 of the Act (local government bodies in Wales) or Part 1 of the Local Government Act 1999 (Best Value), or in the course of an audit, study or inspection under any of those provisions or under section 145C of the Government of Wales Act 1998 (studies relating to registered social landlords). The new section 54A(2)(a) and (b) preserves the ability of public authorities within the meaning of the Freedom of Information Act 2000 (“FOI Act public authorities”), and persons acting on their behalf, to disclose such information in the circumstances in which they were, before the making of this Order, able to disclose it by virtue of section 54(2). In addition, section 54A(2)(c) allows disclosure, by FOI Act public authorities and persons acting on their behalf, in any other circumstances, except where disclosure would or would be likely to prejudice the performance by any such person of their statutory functions.

If an FOI Act public authority (or person acting on its behalf) discloses information in circumstances not authorised by paragraphs (a) – (c) of that section 54A(2), that person is guilty of an offence and liable on summary conviction to a fine not exceeding the statutory maximum.