Exemptions and exceptions on FindOut

Section 25: Information otherwise accessible

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

Section 25 of FOISA says information is exempt if you can reasonably get hold of it without making an FOI request. This is one of the most common provisions you’ll see in refusal letters.

In plain terms#

The authority is telling you: you don’t need FOI for this because you can already get it. Perhaps it’s on their website, in their publication scheme, or available through another route. The key word is “reasonably” - it has to be genuinely accessible to you, not just theoretically available somewhere.

Section 26: Prohibitions on disclosure

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

Section 26 of FOISA exempts information where another law specifically bans its disclosure, or where releasing it would be contempt of court. This is a narrow exemption with a high bar.

In plain terms#

The authority is saying: we’re not just choosing to withhold this - we’re legally prohibited from releasing it. A different law, or a court order, makes disclosure unlawful. Think of tax records protected by revenue legislation, or information covered by a court order restricting publication.

Section 27: Information intended for future publication

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

Information intended for future publication#

Section 27 of FOISA exempts information that the authority plans to publish soon. The idea is that you shouldn’t need to use FOI to get something that’s about to come out anyway.

In plain terms#

The authority is telling you: we’re going to publish this within 12 weeks, so it’s reasonable for you to wait. This might come up with draft reports, statistics due for release, or consultation responses being prepared for publication. The authority has to have a genuine plan to publish, not just a vague intention.

Section 28: Relations within the United Kingdom

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

Relations within the United Kingdom#

Section 28 of FOISA exempts information where disclosure would, or would be likely to, substantially prejudice relations between the Scottish Government and other UK administrations.

In plain terms#

The authority is saying: releasing this would seriously damage the working relationship between the Scottish Government and Westminster (or the Welsh or Northern Irish governments). This comes up when Scottish and UK ministers or officials have been communicating about shared policy areas, and one side would rather those discussions stayed private.

Section 29: Formulation of Scottish Administration policy

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

Government policy#

Section 29 of FOISA exempts information held by the Scottish Government that relates to the development of government policy. This exemption is only available to the Scottish Administration (which includes the core Scottish Government, executive agencies, and non-ministerial departments), not to councils, NHS boards, or other public authorities.

In plain terms#

The Scottish Government is saying: this information relates to policy we’re developing, or to discussions between ministers, or to legal advice from the Law Officers. They’re arguing they need space to consider options without every draft and internal discussion being made public while work is still in progress.

Section 30: Prejudice to effective conduct of public affairs

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

Public affairs and “space to think”#

Section 30 of FOISA is one of the most important and most contested exemptions in Scottish FOI. It protects information where disclosure would harm the effective conduct of public affairs - including the free and frank exchange of advice and views within public authorities.

In plain terms#

The authority is arguing that releasing this information would damage its ability to conduct its business effectively. Most often, this means they’re saying that officials need to be able to give candid advice and debate options openly, and that making those discussions public would stop people being honest in future. You’ll sometimes see it called the “space to think” exemption.

Section 31: National security and defence

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

National security and defence#

Section 31 of FOISA exempts information where withholding is needed to safeguard national security, or where disclosure would substantially prejudice defence capabilities.

In plain terms#

The authority is saying: releasing this information would put national security at risk or damage the country’s ability to defend itself. In practice, Scottish public authorities rarely hold the kind of information this exemption covers - most national security and defence material sits with UK-level bodies under the UK FOI Act.

Section 32: International relations

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

International relations#

Section 32 of FOISA exempts information where disclosure would substantially prejudice the UK’s relations with other states or international organisations, or the promotion or protection of UK interests abroad, or where the information was received in confidence from a foreign government or international body.

In plain terms#

The authority is saying: releasing this would damage Britain’s relationships with other countries or international organisations. Since foreign affairs is reserved to Westminster, this exemption is rarely encountered in Scottish FOI. It tends to arise when Scottish authorities hold information that touches on international dealings - for example, trade visits, cross-border environmental issues, or EU-related policy.

Section 33: Commercial interests and the economy

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

Commercial interests and the economy#

Section 33 of FOISA exempts information that amounts to a trade secret, or where disclosure would substantially prejudice commercial interests, the UK economy, or the financial interests of a UK administration. This is one of the most commonly applied exemptions in Scottish FOI.

In plain terms#

The authority is saying: releasing this would seriously harm someone’s business interests, reveal a trade secret, or damage the economy. Authorities frequently cite section 33 when refusing to release contract details, tender prices, financial information about companies, or commercially sensitive data provided by third parties.

Section 34: Investigations by Scottish public authorities

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

Investigations by Scottish public authorities#

Section 34 of FOISA exempts information held by a Scottish public authority for the purposes of certain investigations it conducts - criminal investigations, reports to the procurator fiscal, fatal accident inquiries, and information about confidential sources.

In plain terms#

The authority is saying: we hold this information because of an investigation we’re conducting (or have conducted), and releasing it could compromise that work. This exemption protects the investigation process itself, not just its outcome.

Section 35: Law enforcement

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

Law enforcement#

Section 35 of FOISA exempts information where disclosure would substantially prejudice a wide range of law enforcement functions - from crime prevention and prosecution to tax collection, immigration controls, and regulatory enforcement.

In plain terms#

The authority is saying: releasing this information would seriously harm its ability (or another body’s ability) to enforce the law. Unlike section 34, which protects information held for specific investigations, section 35 is about the effect of disclosure on law enforcement work more broadly.

Section 36: Confidentiality

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

Confidentiality#

Section 36 of FOISA contains two very different exemptions under one heading. Section 36(1) covers legal professional privilege - communications between an authority and its solicitors. Section 36(2) covers information given in confidence where disclosure would amount to an actionable breach of confidence. Despite sharing a section number, these exemptions work differently and should be considered separately.

In plain terms#

If the authority cites section 36(1), it’s saying: this is a communication between us and our solicitors, protected by legal professional privilege. Releasing it would undermine our ability to get frank legal advice.

Section 37: Court records

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

Court records#

Section 37 of FOISA exempts information contained in documents connected to court proceedings, public inquiries, and arbitrations - but only where the authority holds that information solely because of the court document. This is one of the narrower exemptions, and the “solely because” condition is the key to challenging it.

In plain terms#

The authority is saying: we only have this information because it’s in a document that was lodged with, served by, or created by a court (or inquiry or arbitration). The proceedings have their own rules about access to documents, and FOI shouldn’t override those.

Section 38: Personal information

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

Personal information#

Section 38 of FOISA is the most commonly used exemption in Scottish FOI. It covers four different situations involving personal data, and they work in very different ways. If you have been refused under section 38, the first thing to check is which subsection the authority has cited - the rules depend entirely on which one.

In plain terms#

If the authority cites section 38(1)(a), it’s saying: you’ve asked for your own personal data. FOI isn’t the right route - use a subject access request instead.

Section 39: Health, safety and the environment

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

Health, safety and the environment#

Section 39 of FOISA contains two unrelated exemptions under one heading. Section 39(1) covers information whose disclosure would endanger someone’s health or safety. Section 39(2) is a technical provision that redirects environmental information requests to the EIR(S) regime. Despite sharing a section number, these exemptions serve different purposes and you need to know which one the authority has cited.

Section 40: Audit functions

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

Audit functions#

Section 40 of FOISA protects information whose disclosure would substantially prejudice the ability of public bodies to carry out audits and value-for-money examinations. This is a narrow exemption that most requesters will never encounter. It exists mainly for the benefit of Audit Scotland and similar inspectorate bodies.

In plain terms#

The authority is saying: releasing this information would seriously damage our ability to audit other public bodies or examine whether they’re spending public money effectively.

Section 41: Communications with His Majesty

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

Communications with the King and honours#

Section 41 of FOISA exempts information relating to communications with the Royal Family and the Royal Household, and information about the awarding of honours. This is a class-based exemption - the authority does not need to show that disclosure would cause any specific harm. If the information falls within the class, the exemption applies. It is rarely encountered in practice.

Regulation 10(4)(a): Information not held

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

Information not held#

Regulation 10(4)(a) of the EIR(S) allows an authority to refuse your request if it does not hold the information at the time it receives your request. This is the most basic of the exceptions - the authority is saying the information you asked for does not exist in its records.

In plain terms#

The authority has looked and says it doesn’t have what you asked for. That might be true. Or it might mean they haven’t looked hard enough.

Regulation 10(4)(b): Manifestly unreasonable requests

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

Manifestly unreasonable requests#

Regulation 10(4)(b) of the EIR(S) allows an authority to refuse your request if it is manifestly unreasonable. The word “manifestly” matters. The request must be obviously and clearly unreasonable - not just inconvenient or resource-intensive.

In plain terms#

The authority is saying your request is either so burdensome that dealing with it would be unreasonable, or that it lacks any serious purpose. This is the EIR(S) equivalent of the vexatious request and excessive cost provisions in FOISA, rolled into one.

Regulation 10(4)(c): Request too general

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

Request too general#

Regulation 10(4)(c) of the EIR(S) allows an authority to refuse your request if it is formulated in too general a manner. But there’s a catch: the authority can only use this exception if it has first asked you to clarify your request and helped you do so. If it hasn’t, the exception doesn’t apply.

In plain terms#

The authority is saying it can’t work out what you’re asking for. Your request is too vague, unclear, or non-specific for the authority to identify the information you want. Before it can refuse, it must contact you and try to sort out the confusion.

Regulation 10(4)(d): Material in course of completion

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

Material in the course of completion#

Regulation 10(4)(d) of the EIR(S) allows an authority to refuse your request if the information relates to material still being completed, unfinished documents, or incomplete data. The authority is saying: this isn’t ready yet.

In plain terms#

The information you’ve asked for is in draft or is still being put together. The authority doesn’t want to release something that’s half-finished because it could be misleading or because the work is ongoing.

Regulation 10(4)(e): Internal communications

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

Internal communications#

Regulation 10(4)(e) of the EIR(S) allows an authority to withhold internal communications. Of all the EIR(S) exceptions, this is the broadest. It applies to any communication between officials within the same authority - regardless of content and regardless of whether releasing it would cause any harm at all.

In plain terms#

The authority is saying: this is an internal discussion and we don’t want to make it public. It might be emails between officers, notes from a meeting, a briefing paper for senior management, or a draft report circulated for comment.

Regulation 10(5)(a): International relations, defence, national security and public safety

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

International relations, defence, national security and public safety#

Regulation 10(5)(a) of the EIR(S) allows an authority to refuse your request if disclosure would, or would be likely to, substantially prejudice international relations, defence, national security or public safety. This is the broadest of the substantial prejudice exceptions, covering four distinct interests in a single provision.

In plain terms#

The authority is saying that releasing the information would cause serious harm to one of these four interests. In an environmental context, this might involve plans for critical infrastructure like water treatment works, information touching on military land use, or environmental data shared in confidence between governments.

Regulation 10(5)(b): The course of justice and inquiries

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

The course of justice and inquiries#

Regulation 10(5)(b) of the EIR(S) allows an authority to refuse your request if disclosure would, or would be likely to, substantially prejudice the course of justice, a person’s right to a fair trial, or a public authority’s ability to conduct a criminal or disciplinary inquiry.

In plain terms#

The authority is saying that releasing the information would interfere with legal proceedings, a criminal investigation, or a disciplinary process. This might be an environmental enforcement case, a prosecution for pollution offences, or a regulatory investigation.

Regulation 10(5)(c): Intellectual property rights

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

Intellectual property rights#

Regulation 10(5)(c) of the EIR(S) allows an authority to refuse your request if disclosure would, or would be likely to, substantially prejudice intellectual property rights. In environmental requests, this usually means copyright or database rights.

In plain terms#

The authority is saying that the information is protected by someone’s intellectual property rights - typically the copyright of a third party - and that releasing it would cause real harm to the rights holder.

Regulation 10(5)(d): Confidentiality of proceedings

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

Confidentiality of proceedings#

Regulation 10(5)(d) of the EIR(S) allows an authority to refuse your request if disclosure would, or would be likely to, substantially prejudice the confidentiality of the proceedings of any public authority, where that confidentiality is provided for by law.

In plain terms#

The authority is saying that the information comes from proceedings that are legally required to be kept confidential, and releasing it would cause real harm to that confidentiality. This might involve investigative proceedings, regulatory hearings conducted in private under statute, or governance processes protected by law.

Regulation 10(5)(e): Commercial or industrial confidentiality

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

Commercial or industrial confidentiality#

Regulation 10(5)(e) of the EIR(S) allows an authority to refuse your request if disclosure would, or would be likely to, substantially prejudice the confidentiality of commercial or industrial information, where that confidentiality is provided for by law to protect a legitimate economic interest. This is one of the most commonly used EIR(S) exceptions.

In plain terms#

The authority is saying that the information is commercially confidential and that releasing it would cause real financial or competitive harm to a business. This comes up in requests about planning applications, pollution permits, waste management contracts, and any environmental data involving commercial operators.

Regulation 10(5)(f): Interests of the information provider

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

Interests of the information provider#

Regulation 10(5)(f) of the EIR(S) allows an authority to refuse your request if disclosure would, or would be likely to, substantially prejudice the interests of a person who provided the information voluntarily. This exception exists to encourage the flow of information to public authorities from people who are not obliged to provide it.

In plain terms#

The authority is saying that someone gave them the information freely, without being required to do so by law, and that releasing it would cause serious harm to that person’s interests. The person did not consent to disclosure. This might involve voluntary environmental data submitted by a business, research contributed by an academic, or information shared by a whistleblower.

Regulation 10(5)(g): Protection of the environment

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

Protection of the environment#

Regulation 10(5)(g) of the EIR(S) allows an authority to refuse your request if disclosure would, or would be likely to, substantially prejudice the protection of the environment to which the information relates. The logic is straightforward: the EIR(S) exist to protect the environment, so it would defeat their purpose if disclosing environmental information caused environmental damage.

In plain terms#

The authority is saying that releasing this information would itself harm the environment. The classic example is the location of a rare or protected species - publishing the exact coordinates could lead to disturbance, egg theft, or poaching.

Regulation 11: Personal data

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

Personal data#

Regulation 11 of the EIR(S) sets out when personal data can and cannot be disclosed in response to an environmental information request. Although this page is grouped with the regulation 10 exceptions for convenience, personal data is dealt with separately - it has its own regulation, its own tests, and its own relationship with data protection law.

In plain terms#

The authority is saying the information identifies, or could identify, a living person, and data protection law restricts what it can release. This comes up constantly - names on documents, contact details, professional roles, complainants’ identities, details about individuals affected by environmental decisions.