Making a request under freedom of information: exemptions

Exemptions
There are 17 categories of exempt information in the Freedom of Information (Scotland) Act 2002 (FOISA) but only some of these exemptions are absolute, ie apply on a blanket basis. Others are subject to the public interest test. Authorities should favour disclosure wherever possible.

Many of the exemptions can only be applied to information contained in records for a certain number of years (in most cases, 30 years after the beginning of the calendar year following that in which the record was created), after which they fall away. The exemption table at the end of this section gives more information about the duration of individual exemptions.

If an absolute exemption applies, the authority will not have to release the information. If an exemption is not absolute then the authority will have to apply a public interest test to establish whether the information should be released. If an authority decides that an exemption applies to requested information, and/or that the public interest in maintaining the exemption outweighs that in disclosure of the information, the applicant should be given a written refusal notice which explains why the request is being refused. The notice should also inform the applicant of their right to require a review of the decision.

Information reasonably obtainable other than by request under section 1(1) ('a person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.'). [1]

Information may be reasonably obtainable, even if payment is required for access. [2(a)]

Information is reasonably obtainable if:
• the authority/individual which holds it is obliged by an enactment to communicate it to members of the public on request, whether free of charge or on payment [2(a)], or
• the Keeper of the Records of Scotland holds it and makes it available for inspection and (in so far as practicable) copying, to members of the public on request whether free of charge or on payment [2(b)], or
• the information is made available in accordance with an authority’s publication scheme and any payment required is specified in, or determined in accordance with, the scheme [3].

Information, the disclosure of which would, or would be likely to, prejudice substantially relations between any administrations in the United Kingdom [1]

‘Administration in the United Kingdom’ means:
• the Government of the UK;
• the Scottish Administration;
• the Executive Committee of the Northern Ireland Assembly; or
• the National Assembly for Wales
[2]

Information held by the Scottish Administration relating to:
• the formulation or development of government policy [1(a)];
• Ministerial communications [1(b)];
• the provision of advice by any of the law officers or any request for the provision of such advice [1(c)];
• the operation of any ministerial private office [1(d)].

Statistical information used to provide informed background to the taking of a decision as to policy is not to be regarded as relating to the formulation or development of that policy or to ministerial communications, once the decision has been taken [2] .

In applying the public interest test to determine whether to disclose information relating to the formation or development of government policy, the Scottish Administration must have regard to the public interest in the disclosure of factual information used, or intended to be used, to provide an informed background to the taking of a decision [3].

Information the disclosure of which would, or would be likely to, prejudice substantially:
• the prevention or detection of crime [1(a)];
• the apprehension or prosecution of offenders [1(b)];
• the administration of justice [1(c)];
• the assessment or collection of any tax or duty [1(d)];
• the operation of the immigration controls [1(e)];
• the maintenance of security and good order in prisons or in other such institutions [1(f)];
• the exercise by any public authority (within the meaning of the Freedom of Information Act 2000) or Scottish public authority of its functions for any of the purposes mentioned in subsection (2) [1(g)];
• any civil proceedings brought and arising out of an investigation conducted for any such purpose by or on behalf of any such authority [1(h)]

The purposes are:
• to ascertain whether a person has failed to comply with the law [2(a)];
• to ascertain whether a person is responsible for conduct which is improper [2(b)];
• to ascertain whether circumstances which would justify regulatory action in pursuance of an enactment exist or may arise [2(c)];
• to ascertain a person’s fitness or competence in relation to the management of bodies corporate or any profession or other activity which they are, or seek to become, authorised to carry on [2(d)];
• to ascertain the cause of an accident [2(e)];
• to protect a charity against misconduct or mismanagement in its administration (by trustees or others) [2(f)];
• to protect the property of a charity from loss or mismanagement [2(g)];
• to recover the property of a charity [2(h)];
• to secure the health, safety and welfare of persons at work [2(i)]; and
• to protect persons, other than persons at work, against risk to health and safety where that risk arises out of, or in connection with, the actions of persons at work [2(j)].

Information contained in a document:
• lodged with, or otherwise placed in the custody of, a court for the purposes of proceedings in a cause or matter [1(a)(i)];
• served on, or by, a Scottish public authority for the purposes of such proceedings [1(a)(ii)];
• created by a court or a member of its administrative staff for the purposes of, or in the course of, such proceedings [1(a)(iii)];
or
contained in a document:
• lodged with, or otherwise placed in the custody of, a person conducting an inquiry or arbitration, for the purposes of that inquiry or arbitration [1(b)(i)]; or
• created by such a person for such purposes [1(b)(ii)];

and a Scottish public authority holds the information solely because it is contained in such a document.

Information the disclosure of which would, or would be likely to, endanger the physical or mental health or the safety of an individual [1].

Information which a Scottish public authority is obliged by regulations under section 62 (relating to environmental information) to make available to the public, or would be so obliged but for any exemption contained in the regulations [2].

Information which relates to:

• communications with Her Majesty, other members of the Royal Family or the Royal Household [a]; or