FOISA exemptions on FindOut

Section 25 - Information otherwise accessible

Mon, 01 Jan 0001 00:00:00 +0000

What this exemption means#

The authority is saying you don’t need to use freedom of information to get this information because it’s already available to you through other means - for example, on their website, in a publication, or through another access route.

This is an absolute exemption, so there is no public interest test. But the authority must still meet specific conditions.

Section 26 - Prohibitions on disclosure

Mon, 01 Jan 0001 00:00:00 +0000

What this exemption means#

The authority is saying that another law - not FOISA - prevents them from disclosing the information. This could be an Act of Parliament, a regulation, or a rule about contempt of court.

This is an absolute exemption, so there is no public interest test. But the authority must identify the specific legal prohibition.

What the authority must show#

For this exemption to be validly applied, the authority must demonstrate that:

Section 27 - Information intended for future publication

Mon, 01 Jan 0001 00:00:00 +0000

What this exemption means#

The authority is saying it plans to publish the information, so you should wait for the planned publication rather than getting it through FOI.

This is a qualified exemption, so even if the conditions are met, the authority must also show that the public interest in withholding outweighs the public interest in disclosing.

What the authority must show#

Section 27 contains two separate exemptions:

Section 28 - Relations within the United Kingdom

Mon, 01 Jan 0001 00:00:00 +0000

What this exemption means#

The authority is saying that releasing the information would damage - or would be likely to damage - the relationship between the Scottish Government and another UK administration (the UK Government, the Executive Committee of the Northern Ireland Assembly, or the Welsh Government).

This is a qualified exemption, so the authority must also show that the public interest in withholding outweighs the public interest in disclosing.

Section 29 - Formulation of Scottish Administration policy

Mon, 01 Jan 0001 00:00:00 +0000

What this exemption means#

The authority is saying the information relates to the internal workings of Scottish Government policy-making. This covers things like policy options being considered, communications between ministers, advice from law officers, and the work of ministerial private offices.

This is a qualified exemption and a “class-based” exemption - it applies based on the category of information, not on demonstrating specific harm. But the authority must still pass the public interest test.

Section 30 - Prejudice to effective conduct of public affairs

Mon, 01 Jan 0001 00:00:00 +0000

What this exemption means#

The authority is saying that disclosing the information would harm its ability - or the ability of Scottish Ministers - to conduct public affairs effectively. This is one of the most commonly used exemptions and one the Scottish Information Commissioner frequently overturns.

This is a qualified exemption, so the authority must pass the public interest test even if the exemption itself applies.

Section 31 - National security and defence

Mon, 01 Jan 0001 00:00:00 +0000

What this exemption means#

The authority is saying that disclosing the information would harm national security or the defence of the United Kingdom. This is a serious exemption, but it still has legal requirements the authority must meet.

This is a qualified exemption, so the public interest test applies. However, be aware that a ministerial certificate under section 31(2) can make this exemption very difficult to challenge.

Section 32 - International relations

Mon, 01 Jan 0001 00:00:00 +0000

What this exemption means#

The authority is saying that disclosing the information would harm the United Kingdom’s international relations, or that the information was received in confidence from a foreign government or international organisation.

This is a qualified exemption, so the authority must pass the public interest test.

What the authority must show#

Section 32 has two parts:

Section 33 - Commercial interests and the economy

Mon, 01 Jan 0001 00:00:00 +0000

What this exemption means#

The authority is saying that disclosing the information would harm commercial or economic interests. Section 33 contains four distinct exemptions covering trade secrets, commercial interests, the UK economy, and the financial interests of UK administrations. Section 33(1) is the most commonly used, particularly for information about contracts and procurement.

This is a qualified exemption, so the authority must pass the public interest test.

Section 34 - Investigations by Scottish public authorities

Mon, 01 Jan 0001 00:00:00 +0000

What this exemption means#

The authority is saying the information was held for the purposes of a criminal investigation, a Fatal Accident Inquiry, an investigation involving confidential sources, or related civil proceedings. This exemption is rarely used against members of the public.

This is a qualified exemption, and all parts are class-based - the authority does not need to demonstrate harm, only that the information falls within the relevant category. But the public interest test still applies, and it is the key consideration.

Section 35 - Law enforcement

Mon, 01 Jan 0001 00:00:00 +0000

What this exemption means#

The authority is saying that disclosing the information would, or would be likely to, substantially prejudice one or more law enforcement functions or activities. Section 35 covers a wide range of purposes including the prevention and detection of crime, prosecution of offenders, tax assessment, immigration controls, and various regulatory functions.

This is a qualified exemption, so the authority must pass the public interest test even if the exemption itself applies.

Section 36 - Confidentiality

Mon, 01 Jan 0001 00:00:00 +0000

What this exemption means#

The authority is saying the information is confidential. Section 36 contains two separate exemptions:

Section 36(1) - the information is subject to legal professional privilege (a claim to confidentiality of communications could be maintained in legal proceedings). This is a qualified exemption - the public interest test applies.
Section 36(2) - disclosing the information would constitute an actionable breach of confidence. This is an absolute exemption - the public interest test in FOISA does not apply, although the law of confidence itself includes a public interest defence.

Section 37 - Court records

Mon, 01 Jan 0001 00:00:00 +0000

What this exemption means#

The authority is saying the information is exempt because it is contained in a document that is part of court proceedings, an inquiry, or an arbitration. This exemption exists because courts are not public authorities under FOISA, so it prevents FOISA from being used as a back door to access court documents through the public authority that happens to hold a copy.

Section 38 - Personal information

Mon, 01 Jan 0001 00:00:00 +0000

What this exemption means#

The authority is saying the information is exempt because it is personal data. Section 38 is one of the most commonly used exemptions and contains several different parts:

Section 38(1)(a) - the information is your own personal data. This is an absolute exemption, but you have a right to access your own data through a Subject Access Request (SAR) under data protection law instead.

Section 39 - Health, safety and the environment

Mon, 01 Jan 0001 00:00:00 +0000

What this exemption means#

Section 39 contains two unrelated exemptions:

Section 39(1) - disclosure would, or would be likely to, endanger the physical or mental health or safety of an individual. This covers genuine risks of harm to identifiable people.
Section 39(2) - the information is environmental information that must be handled under the Environmental Information (Scotland) Regulations 2004 (EIRs). This is a technical exemption that routes environmental requests to the EIR regime.

Section 40 - Audit functions

Mon, 01 Jan 0001 00:00:00 +0000

What this exemption means#

The authority is saying that disclosing the information would substantially prejudice its ability to carry out audit functions - specifically, auditing other public authorities’ accounts or examining how efficiently they use their resources.

This is a qualified exemption, so the authority must pass the public interest test even if the exemption itself applies.

What the authority must show#

Section 40 has two separate limbs:

Section 41 - Communications with His Majesty etc.

Mon, 01 Jan 0001 00:00:00 +0000

What this exemption means#

The authority is saying the information relates to communications with the King, members of the Royal Family, or the Royal Household - or to the exercise of the prerogative of honour (the honours system).

This is a qualified exemption and is class-based, meaning the authority does not need to demonstrate specific harm. However, it must still carry out a public interest test.