Freedom of information - exemptions

Why some information might be withheld

We try to make as much information as possible available.  However, sometimes there is a good reason why we withhold information.  If we propose to withhold information, we will explain to you why.

Exemption categories in the FOI Act

The FOI Act lists several categories of information which may be exempt from disclosure:

If information is otherwise accessible (in another place, or under other legislation)

If we are prohibited from disclosing it (by other legislation)

If we intend to publish information in the future (within 12 weeks)

If the information is personal information that would breach the Data Protection Act

If disclosure of the information would substantially prejudice:

  • the effective conduct of public affairs, or investigations by Scottish public authorities
  • National security and defence, international relations, relations within the UK, formulation of policy
  • Commercial interests and the economy
  • Law enforcement, Audit functions
  • Confidentiality
  • Health, safety and the environment
  • Communications with Her Majesty etc. and honours.

"Absolute" and "Non-Absolute" Exemptions

A few of the exemptions are "absolute", which means that if information falls into one of these categories, we do not have to take anything further into consideration before withholding the information.  

Examples of absolute exemptions:

  • information that is otherwise accessible
  • information that is prohibited from disclosure
  • court records
  • actionable breaches of confidence
  • most personal information.

All other exemptions are "non-absolute" which means that even if the information requested fits the exemption, we must also consider whether disclosure would cause "substantial prejudice", and also where the "public interest" lies.

Substantial Prejudice

In most cases, information is not exempt simply because it falls into an exemption category.  We must also consider whether or not disclosure would cause "substantial prejudice".  This means that the prejudice caused must be "real, actual and of significant substance" before we can withhold information.

Public Interest

Even where we consider disclosure would cause "substantial prejudice", we will also have to consider the public interest before we withhold information. This involves looking at whether, in all the circumstances of the case, the public interest in disclosing the information is outweighed by the public interest in maintaining the exemption. "Public Interest" is not defined in the FOI Act, although there are some guidelines in the Code of Practice on the Discharge of Functions by Public Authorities under the FOI (Scotland) Act 2002.

Can I use the FOI Act to get access to my personal information?

No. A request by an individual for information about himself/herself will be exempt under the Freedom of Information (Scotland) Act 2002 and will continue to be handled as a ‘subject access request’ under the Data Protection Act 2018. In certain circumstances such a request may involve the release of associated third party information.

Can I use the FOI Act to get access to personal information about other people?

Perhaps.  The Freedom of Information (Scotland) Act 2002 extends access rights which already exist under the Data Protection Act 2018. Where an applicant specifically requests information about a third party, or where responding to a FOI request would involve the disclosure of personal information about a third party, the request falls within the remit of the Freedom of Information (Scotland) Act 2002. However, the Council must apply the Data Protection Principles when considering the disclosure of information relating to living individuals. The Council must not release third party information, if to do so would mean breaching one of the Principles.

Last updated: Tuesday, January 26, 2021 2:52 PM