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Information an Individual Does Not Have the Right to Access

EthicalIndividuals have a right to see most recorded information from Scottish public authorities. Public authorities are, however, allowed to withhold information in certain circumstances. Information can be withheld where it is covered by one of the exemptions listed in the Freedom of Information (Scotland) Act 2002 (FOISA) [1] (or in the case of environmental information, one of the exceptions in the Environmental Information Regulations (Scotland) 2004 [EIR] [2]).

Some categories of information are completely excluded from rights of access: for example, where release of the information would breach the DPA, or where the information is contained in documents lodged with a court for the purposes of proceedings. Other categories of information might be exempt in certain circumstances where the authority can prove there would be ‘substantial prejudice’ (i.e. real and significant damage) to the authority or to other people if the information were made public. For example, information may be withheld if it would seriously harm the commercial interests of an organisation or where it would harm the effective conduct of public affairs.

Most exemptions, however, also require the authority to consider the public interest in relation to the information. This involves a balancing test. Even if a case can be made for the application of an exemption, the information should nevertheless only be withheld if the public interest in non-disclosure outweighs the public interest in release.

Information can also be refused if the cost of responding to the request exceeds the FOISA upper cost limit of £600, although note that there is no upper fee limit in relation to requests for environmental information.

If you refuse a FOISA request, write to the requester informing them of:

  • the reasons for the refusal, including the particular exemption that applies and the reason why you consider it applies;
  • why you consider that the public interest favours non-disclosure, if the exemption is subject to the public interest;
  • their right to request (within 40 working days) a review of your decision (see Appeals).

NB: it is a legal requirement to provide reasons for refusing a request for information.

For further information on the appropriate application of FOISA exemptions (and EIR exceptions) see the Scottish Information Commissioner’s website  or contact the Scottish Information Commissioner’s enquiry service [3].

If a review of your decision is requested, refer to Appeals for details.

Sources of Information

  1. Freedom of Information (Scotland) Act 2002. www.opsi.gov.uk/legislation/scotland/acts2002/20020013.htm
  2. Environmental Information Regulations.  Scottish Information Commissioner www.itspublicknowledge.info/foi-law
  3. Scottish Information Commissioner