FOISA exemptions

Section 25 of FOISA exempts information from disclosure where the requester can reasonably obtain the information without making a request for it.

It has a different focus from other exemptions. It is not about withholding the information from the public, but recognises that where information is already available to the requester, there is no need to provide an alternative right of access to it through FOISA.

Under section 26 of FOISA, information is exempt where disclosure:

• is prohibited by or under an enactment;
• is incompatible with an EU obligation;
• or would constitute, or be punishable as, contempt of court.

The exemptions in section 26 are absolute. So, if the information is "prohibited from disclosure", the public authority responding to the request doesn't have to go on to apply the public interest test.

Unlike some other exemptions in FOISA, the exemptions in section 26 can be applied regardless of how old the information is.

Section 27 of FOISA contains two distinct exemptions:

1. The exemption in section 27(1) allows public authorities to refuse to disclose information if they already plan to publish it within the next 12 weeks, but only if it is reasonable to delay disclosing the information until the planned date of publication.
2. The exemption in section 27(2) is aimed at universities and higher education colleges. It allows them to refuse to disclose information obtained in, or derived from, a "programme of research", provided they are planning to publish the research. The exemption can only be applied if disclosure would cause substantial prejudice.

Both of the exemptions are subject to the public interest test. This means that, even if the exemption applies, the information must be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it.

Section 28 of FOISA exempts information from disclosure where disclosure would, or would be likely to, prejudice substantially relations between administrations in the UK (e.g. between Westminster and Holyrood).

The exemption in section 28(1) is subject to the public interest test. This means that, even if the exemption applies, the information must be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it.

The exemption does not last forever. In general, it cannot be applied to information that is more than 15 years old. This is one of the exemptions where a public authority can refuse to confirm or deny whether it holds the information, provided the authority is satisfied that revealing whether the information exists or is held would be contrary to the public interest (section 18 of FOISA).

Section 29 of FOISA exempts information from disclosure if it relates to:

• the formulation or development of government policy;
• Ministerial communications;
• the provision of advice by any of the Law Officers (or any request for the provision of such advice); or
• the operation of any Ministerial private office.

The section 29 exemptions are sometimes referred to as "class-based" exemptions. This means that the exemption will apply if the information falls within a particular class of information (e.g. Ministerial communications). Unlike most of the exemptions, the authority does not have to demonstrate that disclosure of the information would cause harm before applying the exemption.

The exemptions in section 29 are all subject to the public interest test. This means that, even if the exemption applies, the information must be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it. When applying the public interest test, the Scottish Government must consider the public interest in disclosing the factual information used to inform a decision.

The exemption does not last forever. In general, it cannot be applied to information that is more than 15 years old. This is one of the exemptions where a public authority can refuse to confirm or deny whether it holds the information, provided the authority is satisfied that revealing whether the information exists or is held would be contrary to the public interest (section 18 of FOISA).

Where the First Minister disagrees with a decision from the Commissioner concerning section 29(1), the First Minister can overrule the Commissioner's decision, provided the information is of exceptional sensitivity and provided the First Minister has consulted the other members of the Scottish Government (section 52 of FOISA). At the date of publication of this guidance, this power has never been used.

Section 30 of FOISA exempts information from disclosure where disclosure would, or would be likely to, cause substantial harm to one or more of the following:

• the maintenance of the convention of the collective responsibility of the Scottish Ministers
• the free and frank provision of advice
• the free and frank exchange of views for the purposes of deliberation
• the effective conduct of public affairs

All of the exemptions in section 30 are subject to the public interest test. This means that, even if the exemption applies, the information must be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it.

The exemptions don't last forever. In general, they can't be applied to information that is more than 15 years old.

With the section 30 exemptions, a public authority can refuse to confirm or deny whether it holds the information, provided the authority is satisfied that revealing whether the information exists or is held would be contrary to the public interest (section 18 of FOISA).

Section 31 of FOISA contains three separate exemptions.

• Under section 31(1), information is exempt information if exemption from disclosure is required for the purpose of safeguarding national security.
• If a member of the Scottish Executive (i.e. the Scottish Government) has certified that exemption is required in order to safeguard national security, that will be conclusive of the fact (section 31(2)).
• Under section 31(4), information is exempt if disclosure would, or would be likely to, prejudice substantially:
  • the defence of the British Islands or of any colony; or
  • the capability, effectiveness or security of the armed forces or any forces co-operating with them.

All three of the exemptions in section 31 are subject to the public interest test. This means that, even if an exemption applies, the information must be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it.

With section 31, public authorities can refuse to confirm or deny whether they hold the information, provided they are satisfied that revealing whether the information exists or not would be contrary to the public interest (section 18 of FOISA).

Where the First Minister disagrees with a decision from the Commissioner concerning section 31(1) (not section 31(4)), the First Minister can overrule the Commissioner's decision provided the information is of exceptional sensitivity and provided the First Minister has consulted the other members of the Scottish Government (section 52 of FOISA). At the date of publication of this guidance, this power has never been used. Section 52 certificates shouldn't be confused with those issued under section 31(2).

Under section 32(1)(a) of FOISA, information is exempt from disclosure if disclosure would, or would be likely to, prejudice substantially:

• relations between the UK and any other State;
• relations between the UK and any international organisation or international court;
• the interests of the UK abroad; or
• the promotion or protection by the UK of its interests abroad.

Under section 32(1)(b), information is exempt from disclosure if it is confidential information obtained from a State other than the UK or from an international organisation or international court.

All of the exemptions in section 32 are subject to the public interest test. This means that, even if an exemption applies, the information must be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it.

A public authority can refuse to confirm or deny whether it holds information which, if held, would be exempt under section 32, provided the authority is satisfied that revealing whether the information exists or is held would be contrary to the public interest.

Where the First Minister disagrees with a decision from the Commissioner concerning an exemption in section 32(1)(b) (not an exemption in section 32(1)(a)), the First Minister can overrule the Commissioner's decision provided the information is of exceptional sensitivity and provided the First Minister has consulted the other members of the Scottish Government (section 52 of FOISA). At the date of publication of this guidance, this power has never been used.

Section 33 of FOISA contains four distinct exemptions. Information may be withheld if:

• it is a trade secret (section 33(1)(a));
• disclosure would (or would be likely to) prejudice substantially the commercial interests of any person or organisation (section 33(1)(b));
• disclosure would (or would be likely to) prejudice substantially the economic interests of the whole or part of the UK (section 33(2)(a)); or
• disclosure would (or would be likely to) prejudice substantially the financial interests of an administration in the UK (section 33(2)(b)).

All of the exemptions in section 33 are subject to the public interest test. This means that, even if the exemption applies, the information must be disclosed unless the public interest in withholding it outweighs the public interest in disclosing the information.

The exemptions in section 33(1) don't last forever. In general, they can't be applied to information that is more than 15 years old. However, the exemptions in section 33(2) can be applied to information regardless of how old it is.

With all of the section 33 exemptions, a public authority can refuse to confirm or deny whether it holds the information, provided the authority is satisfied that revealing whether the information exists or is held would be contrary to the public interest (section 18 of FOISA).

"Commercial confidentiality"

Information which is commercially sensitive is often described as being "commercially confidential". However, there is no single exemption in FOISA covering "commercial confidentiality". FOISA draws a distinction between information where disclosure would have a detrimental effect on commercial interests, and information which is "confidential" under Scots law.

This briefing deals with FOISA's "commercial interests" exemption only. A separate briefing considers the "confidentiality" exemption under section 36 of FOISA.

Section 34 of FOISA contains a wide range of exemptions, all relating to investigations carried out by Scottish public authorities. Information will be exempt from disclosure if:

• at any time, it has been held for the purposes of an investigation which the authority has a duty to conduct in order to ascertain whether a person should be prosecuted for an offence or whether a person prosecuted for an offence is guilty (section 34(1)(a));
• at any time, it has been held for the purposes of an investigation, conducted by the authority, which may lead to the authority deciding to make a report to the procurator fiscal (PF) to decide whether criminal proceedings should be instituted (section 34(1)(b));
• at any time, it has been held for the purposes of criminal proceedings instituted in consequence of a report made by the authority to the PF (section 34(1)(c));
• it is held by a Scottish public authority for a Fatal Accident Inquiry (FAI) which has not yet concluded (section 34(2)(a));
• at any time, it has been held by a Scottish public authority for the purposes of making a report to the PF as respects the cause of death of a person (section 34(2)(b));
• it was obtained or recorded by an authority for the purpose of an investigation and the information relates to the obtaining of information from confidential sources (section 34(3));
• or it was obtained or recorded for civil proceedings brought by or on behalf of the authority, provided the proceedings arise out of an investigation mentioned in section 34(1) or (3) (section 34(4)).

The section 34 exemptions are sometimes referred to as "class-based" exemptions. This means that an exemption will apply if the information falls within a particular class of information (e.g. information held for the purposes of an FAI which has not yet been completed). Unlike most of the exemptions, an authority does not have to demonstrate that disclosure would cause harm before applying the exemption.

The exemptions in section 34 are all subject to the public interest test. This means that, even if an exemption applies, the information must be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it.

The exemption in section 34(2)(b) (ascertaining the cause of death of a person) does not last forever. In general, it cannot be applied to information that is more than 100 years old. All of the other exemptions in section 34 last in perpetuity.

With all of the section 34 exemptions, a public authority can refuse to confirm or deny whether it holds the information, provided the authority is satisfied that revealing whether the information exists or is held would be contrary to the public interest (section 18 of FOISA).

Section 35 of FOISA contains a wide range of exemptions, all relating to law enforcement. Information will be exempt if disclosure would, or would be likely to, prejudice substantially:

• the prevention or detection of crime (section 35(1)(a));
• the apprehension or prosecution of offenders (section 35(1)(b));
• the administration of justice (section 35(1)(c));
• the assessment or collection of any tax or duty (section 35(1)(d));
• the operation of immigration controls (section 35(1)(e));
• the maintenance of security and good order in prisons, etc. (section 35(1)(f));
• the exercise by a public authority of one or more of the functions listed in section 35(2), such as ascertaining whether conduct is improper or securing the health, safety and welfare of people at work (section 35(1)(g));
• or civil proceedings brought and arising out of an investigation conducted for any of the purposes listed in section 35(2) (section 35(1)(h)).

The exemptions in section 35 are all subject to the public interest test. This means that, even if an exemption applies, the information must be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it.

The exemptions in section 35 don't last forever. In general, they can't be applied to information that is more than 100 years old.

With all of the section 35 exemptions, a public authority can refuse to confirm or deny whether it holds the information, provided the authority is satisfied that revealing whether the information exists or is held would be contrary to the public interest (section 18 of FOISA).

Section 36 of FOISA incorporates two distinct exemptions. Information may be withheld if:

• it is information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings (for example, if information is "legal privileged") (section 36(1)); or
• the information was obtained by a Scottish public authority and disclosing it would constitute an actionable breach of confidence (section 36(2)). Section 36(2) basically incorporates the Scots law of confidence into FOISA.

Only the exemption in section 36(1) is subject to the public interest test in FOISA. This means that, even if the exemption applies, the information must be disclosed unless the public interest in withholding it outweighs the public interest in disclosing the information. Although the exemption in section 36(2) is not subject to the public interest test in FOISA, the public interest can play a role in deciding whether the exemption applies.

The exemptions in section 36 don't last forever. In general, they can't be applied to information that is more than 30 years old.

Under section 37 of FOISA, information is exempt from disclosure if it is contained in a document which has been:

• lodged with a court for the purposes of court proceedings (section 37(1)(a)(i));
• served on, or by, a Scottish public authority for the purposes of court proceedings (section 37(1)(a)(ii));
• created by a court for the purposes of court proceedings (section 37(1)(a)(iii));
• lodged with a person conducting an inquiry or arbitration, for the purposes of that inquiry or arbitration (section 37(1)(b)(i)); or
• created by a person conducting an inquiry or arbitration, for the purposes of that inquiry or arbitration (section 37(1)(b)(ii));
• AND in all of these cases, a Scottish public authority holds the information only because it is contained in such a document.

The exemptions in section 37 are absolute. This means that the public authority responding to the request doesn't need to go on to apply the public interest test.

The exemptions in section 37 don't last forever. In general, they can't be applied to information that is more than 15 years old.

It is important to be familiar with the terms used in this briefing - these are set out in the Glossary and abbreviations section of the document below.

Section 38 of FOISA contains four exemptions, all relating to personal information. Information is exempt from disclosure if it is:

• the personal data of the person requesting the information (section 38(1)(a));
• the personal data of a third party – but only if other conditions apply (section 38(1)(b));
• personal census information (section 38(1)(c)); or
• a deceased person's health record (section 38(1)(d)).

The exemptions in sections 38(1)(a) and (b) regulate the relationship between FOISA, the UK General Data Protection Regulation and the Data Protection Act 2018.

Duration

The exemptions in section 38(1)(a) and (b) can be applied regardless of how old the information is. In practice, this will be limited because the exemptions can only be applied if the information relates to living individuals.

The exemptions in section 38(1)(c) and (d) don't last forever. In general, they can't be applied to information that is more than 100 years old.

Section 38 and the public interest test

The exemptions in section 38 are mostly absolute, which means that they are not subject to the public interest test. However, in two specific situations, the exemption in section 38(1)(b) is subject to the public interest test. This means that in these situations, even if the exemption applies, the personal data must be disclosed unless the public interest in withholding the personal data outweighs the public interest in disclosing it. This is explained in more detail in the briefing.

Section 38 and neither confirm nor deny

Where any of the exemptions in section 38 applies, a public authority can refuse to confirm or deny whether it holds the information, provided it is satisfied that revealing whether the information exists or is held would be contrary to the public interest (section 18 of FOISA).

Section 39 of FOISA contains two unrelated exemptions. Information may be withheld if:

• disclosure would, or would be likely to, endanger the physical or mental health or safety of an individual (section 39(1)); or
• it is environmental information and the public authority is obliged to make it available in accordance with the Environmental Information (Scotland) Regulations 2004 (the EIRs). This is a technical exemption which allows public authorities to respond to requests for environmental information under the EIRs without considering the request under FOISA.

Both of the exemptions are subject to the public interest test. This means that, even if an exemption applies, the information must be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it.

The exemptions in section 39 last in perpetuity. This means they can be applied to information regardless of how old it is.

Where the exemption in section 39(1) applies, a public authority can refuse to confirm or deny whether it holds the information, provided the authority is satisfied that revealing whether the information exists or is held would be contrary to the public interest (section 18 of FOISA). This provision does not apply to the exemption in section 39(2).

Under section 40 of FOISA, information is exempt if its disclosure would, or would be likely to, prejudice substantially a Scottish public authority's functions in relation to:

• the audit of the accounts of other Scottish public authorities (section 40(a)); or
• the examination of the economy, efficiency and effectiveness with which other public authorities use their resources in discharging their functions (section 40(b)).

The exemptions in section 40 are subject to the public interest test in FOISA. This means that, even if one of the exemptions apply, the information must be disclosed unless the public interest in withholding it outweighs the public interest in disclosing the information.

The exemptions in section 40 don't last forever. In general, they can't be applied to information that is more than 15 years old.

Under section 41 of FOISA, information is exempt from disclosure if it relates to:

• communications with the King, with other members of the Royal Family or with the Royal Household (section 41(a)); or
• the awarding of honours by the King (section 41(b)).

The section 41 exemptions are sometimes referred to as "class-based" exemptions. This means that an exemption will apply if the information falls within a particular class of information (e.g. communications with the King). Unlike most other exemptions, an authority does not have to demonstrate that disclosure would cause harm before applying one of the section 41 exemptions.

The exemptions in section 41 are both subject to the public interest test in FOISA. This means that, even if an exemption applies, the information must be disclosed unless the public interest in withholding it outweighs the public interest in disclosing the information.

The exemptions in section 41 don't last forever. Our briefing explains the complex rules for when the exemptions will, and will not, apply.

The exemption in section 41(b) generally can't be applied to information that is more than 60 years old. The 60-year period recognises that, traditionally, the honours system is a process carried out in secret.

With both of the exemptions in section 41, a public authority can refuse to confirm or deny whether it holds information, provided the authority is satisfied that revealing whether the information exists or is held would be contrary to the public interest (section 18 of FOISA).

When the First Minister disagrees with a decision from the Commissioner given to the Scottish Administration concerning the exemption in section 41(b) (but not section 41(a)), the First Minister can overrule the Commissioner's decision, provided the information is of exceptional sensitivity and provided the First Minister has consulted with other members of the Scottish Government (section 52 of FOISA). At the date of publication of this guidance, this power has never been used.