Investigations by OSCR into individual charities

The effective regulation of charities requires OSCR to make inquiries into the running of Scottish charities. While OSCR aims to be as open and transparent as possible in our operations, there are legitimate exemptions contained in the Freedom of Information (Scotland) Act 2002 which enable information to be withheld. 

 

OSCR may lawfully withhold information in order to ensure the effectiveness of the investigatory process. This withholding of information may be particularly relevant to the following categories of information:

 

 

A brief explanation on the exemptions which may enable information to be withheld, is provided below.  It is important to note however, that each and every request for information will be looked at on its own merits, and that the following information is merely for guidance purposes only.

 

Confidentiality: Section 36(2)(a) and (b) is an exemption for information obtained by a public authority from another person in confidence, the disclosure of which would result in an actionable breach of confidence.

 

This exemption may apply to witness statements provided to OSCR in confidence, as well as to correspondence to / from a charity or complainer during an ongoing investigation.  This is because this information is given directly to, and received by, OSCR under conditions that imply a duty of confidence. The information itself is often genuinely confidential, not publicly known and if it were to be disclosed it would cause substantial prejudice to OSCR’s ability to carry out its regulatory function. If OSCR cannot expect such information to be held in confidence then in future people may be reluctant to supply OSCR with information about charities. This would not be in the public interest.

 

Law Enforcement: Section 35 is an exemption relating to general law enforcement which includes specific clauses relating to charities. Section 35(1)(g) exempts information from disclosure if that disclosure would, or would be likely to, prejudice substantially the exercise by a public authority of its functions.  These functions include: protecting a charity against misconduct or mismanagement (whether by trustees or other persons) in its administration; protecting the property of a charity from loss or mismanagement; and / or recovering the property of a charity (sections 35(2)(f)(g) and (h)).

 

This exemption may apply to OSCR's internal file notes, memos and reports.  This is because the disclosure of this information can prejudice substantially, or be likely to prejudice substantially, OSCR’s future ability to: protect a charity against misconduct or mismanagement in its administration; protect the property of a charity; or recover the property of a charity. Where there would be a negative and damaging impact on OSCR's regulatory role of any disclosure, it would not be in the public interest to compromise OSCR’s investigatory procedures in future.

 

Prejudice to the Effective Conduct of Public Affairs: Section 30(b)(i) and (ii) exempts information from disclosure if that disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice or the free and frank exchange of views for the purposes of deliberation.

 

This exemption may apply to OSCR's internal file notes, memos and reports regarding an inquiry, where they relate to the exchange of information between OSCR staff as to whether there should be prosecution for an offence. The release of this correspondence may inhibit substantially the free and frank provision of advice, or the exchange of views for the purposes of deliberation as it could impact negatively on OSCR's decision-making processes. Disclosing some types of correspondence would prejudice substantially OSCR’s ability to regulate charities, and the conduct of future investigations. It would not be in the public interest to prejudice the effective regulation of charities and future investigations.