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EIRs exceptions

EIRs exceptions

This page contains briefings on exceptions under the Environmental Information (Scotland) Regulations 2004 - known as the EIRs.

Further introductory guidance on the EIRs is available on our FOI law page.

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

More information on regulation 10(4)(a)

Regulation 10(4)(a) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) allows public authorities to refuse to make environmental information available if they don't hold the information when the request is received.

"Held" is defined in regulation 2(2) of the EIRs. Environmental information is held by a Scottish public authority if it is:

  • in its possession and it has been produced or received by that authority; or
  • held by another person on that authority's behalf.

Regulation 2(2) also makes it clear that information will not be "held" by a public authority for the purposes of the EIRs if it was supplied by a Minister of the Crown or department of the UK Government and is held in confidence.

In common with other exceptions in the EIRs, the exception is subject to the public interest test in regulation 10(1). It is not clear how the public interest test is intended to work where a public authority does not hold information, given that authorities are not required to create new information in order to respond to a request. This point is addressed in more detail below.

Good records management is required in order to be sure what information is held within an authority.

Regulation 10(4)(a) is, in many respects, similar to Section 17 of the Freedom of Information (Scotland) Act 2002 (FOISA) which makes it clear that a public authority does not have to comply with a request if it does not hold the information. The briefing also provides links to a wider range of decisions on whether information is - or isn't - held by a public authority.

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

More information on regulation 10(4)(b)
  • Regulation 10(4)(b) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) allows a Scottish public authority to refuse to disclose environmental information if the request for information is manifestly unreasonable.
  • This is very similar, but not identical, to the vexatious provision in section 14 of the Freedom of Information (Scotland) Act 2002 (FOISA). The Commissioner has issued separate guidance on section 14 of FOISA.
  • The exception in regulation 10(4)(b) is subject to the public interest test in regulation 10(1) of the EIRs. This means that, even if the exception applies, the information should still be disclosed if the public interest in making the information available is outweighed by the public interest in maintaining the exception.
  • As with all of the exceptions in the EIRs, the exception can be relied on regardless of the age of the information. This exception aims to protect the credibility and effectiveness of the EIRs. Most requesters exercise their rights to information responsibly, but there are rare occasions when this is not the case.
  • This exception provides a way of dealing with the few cases that are unreasonable, would impose a significant burden on the financial and human resources of public authorities or are otherwise manifestly unreasonable because of their impact on the authority.
  • Public authorities should not use this exception lightly. They should consider all the relevant circumstances in order to reach a balanced conclusion as to whether a request is manifestly unreasonable. Requesters must not be unjustly denied the opportunity to make a genuine information request. Requests may be inconvenient, and meeting them may at times stretch an authority's resources, but these factors are not on their own sufficient to deem a request manifestly unreasonable.

Requests which are too general - Regulation 10(4)(c)

More information on regulation 10(4)(c)
  • Regulation 10(4)(c) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) allows a Scottish public authority to refuse to make information available if:
    • the request is formulated in too general a manner and
    • the authority has asked the requester to provide more particulars about the request and
    • the authority has assisted the requester in providing more particulars.
  • In common with other exceptions in the EIRs:
    • the exception is subject to the public interest test in regulation 10(1). This means that, even if the exception applies, the information should still be disclosed unless the public interest in withholding the information outweighs the public interest in making it available
    • the exception can be relied on regardless of the age of the information.

Internal communications - Regulation 10(4)(e)

More information on regulation 10(4)(e)
  • Regulation 10(4)(e) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) allows a Scottish public authority to withhold internal communications.
  • In common with other exceptions in the EIRs:
    • the exception is subject to the public interest test in regulation 10(1). This means that, even if the exception applies, the information should still be disclosed unless the public interest in withholding the information outweighs the public interest in making it available
    • the exception can be relied on regardless of the age of the information.

International relations, national security - Regulation 10(5)(a)

More information on regulation 10(5)(a)
  • Regulation 10(5)(a) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) allows a Scottish public authority to refuse to disclose environmental information, where its disclosure would, or would be likely to, cause substantial prejudice to one or more of the following:
    • international relations
    • defence
    • national security
    • public safety.
  • In common with other exceptions in the EIRs:
    • the exception is subject to the public interest test in regulation 10(1) of the EIRs.This means that, even if the exception applies, the information should still be disclosed if the public interest in making the information available is outweighed by the public interest in maintaining the exception
    • the exception can be relied on regardless of the age of the information.

Justice and fair trial - Regulation 10(5)(b)

More information on regulation 10(5)(b)
  • Regulation 10(5)(b) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) provides an exception which allows a Scottish public authority to withhold environmental information if its disclosure would, or would likely to, cause substantial prejudice to one or more of the following:
    • the course of justice
    • the ability of a person to receive a fair trial
    • the ability of any public authority to conduct an inquiry of a criminal or disciplinary nature.
  • In common with other exceptions in the EIRs:
    • the exception is subject to the public interest test in regulation 10(1) of the EIRs. This means that, even if the exception applies, the information should still be disclosed unless the public interest in withholding the information outweighs the public interest in making it available
    • the exception can be relied on regardless of the age of the information.

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

More information on regulation 10(5)(c)
  • Regulation 10(5)(c) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) allows a Scottish public authority to withhold environmental information if its disclosure would, or would be likely to, cause substantial prejudice to intellectual property (IP) rights. IP rights include things like copyright.
  • In common with other exceptions in the EIRs:
    • the exception is subject to the public interest test in regulation 10(1). This means that, even if the exception applies, the information should still be disclosed unless the public interest in withholding the information outweighs the public interest in making it available
    • the exception can be relied on regardless of the age of the information.

Third party interests - Regulation 10(5)(f)

More information on regulation 10(5)(f)
  • Regulation 10(5)(f) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) allows a Scottish public authority to withhold environmental information if its disclosure would, or would be likely to, cause substantial prejudice to the interests of a person who provided information voluntarily to the authority. The exception can only be applied if all three of the following tests are satisfied:
    • The person was not legally obliged (and could not be legally obliged) to supply the information
    • The person did not supply it in circumstances such that it could be made available except by making a request for it under the EIRs
    • The person has not consented to the information being disclosed.
  • In common with other exceptions in the EIRs:
    • the exception is subject to the public interest test in regulation 10(1). This means that, even if the exception applies, the information should still be disclosed unless the public interest in withholding the information outweighs the public interest in making it available
    • the exception can be relied on regardless of the age of the information. 
  • This exception cannot be used to withhold information on emissions

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

More information on regulation 10(5)(g)
  • Regulation 10(5)(g) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) allows a Scottish public authority to withhold environmental information if its disclosure would, or would be likely to, cause substantial prejudice to the protection of the environment.
  • In common with other exceptions in the EIRs:
    • the exception is subject to the public interest test in regulation 10(1). This means that, even if the exception applies, the information should still be disclosed unless the public interest in withholding the information outweighs the public interest in making it available
    • the exception can be relied on regardless of the age of the information.
  • This exception cannot be used to withhold information on emissions

Personal data - Regulation 11

Download the briefing: Regulation 11: Personal Data

More information on regulation 11
Guidance on the use of regulation 11 of the EIRs

UPDATED January 2021: Following Brexit, the UK is no longer subject to the General Data Protection Regulation (GDPR), but is subject to what is known as the "UK GDPR". We have updated our guidance to reflect this change and related amendments to other legislation. Some of the decisions referred to in the briefing were issued before the GDPR, Data Protection Act 2018 and UK GDPR came into force; although the key principles remain very similar, readers need to ensure they comply with the new regime.

We update the guidance as new decisions are issued and further data protection guidance becomes available.

Other recent changes to this guidance

  • "Consent" is no longer suggested as a basis for disclosing personal data in response to an FOI request - in line with recent decisions, our guidance now states "legitimate interest" is the only condition likely to apply in practice
  • Links to other resources now include updated ICO guidance on data protection and Brexit, the UK GDPR Keeling Schedule and the ICO's "Right of Access" guidance in place of the previous "Subject Access Code of Practice"
About regulation 11

Regulation 11 of the Environmental Information (Scotland) Regulations 2004 (the EIRs) sets outs when personal data can and cannot be disclosed under the EIRs. Regulation 10(3) makes it clear that, where a request for environmental information includes personal data, the personal data must not be made available (i.e. disclosed) otherwise than in accordance with regulation 11.

Personal data must not be disclosed if it is:

  • the personal data of the person requesting the information (regulation 11(1));
  • the personal data of a third party – and other conditions apply (regulation 11(2)).

The exceptions in regulation 11 regulate the relationship between the EIRs, the UK General Data Protection Regulation and the Data Protection Act 2018. Remember that regulation 11 covers personal data which also falls within the definition of environmental information. There is a separate exemption in section 38 of the Freedom of Information (Scotland) Act 2002 (FOISA) for personal data which is not environmental information. See the Commissioner's briefing on section 38.

Duration

Regulation 11 applies regardless of how old the information is. In practice, this will be limited because the provisions can only be applied if the information relates to living individuals. The exceptions do not apply to personal information of deceased people.

Regulation 11 and the public interest test

The exceptions in regulation 11 are generally absolute, which means that they are not subject to the public interest test. However, in two specific situations, the exception in regulation 11(2) is subject to the public interest test. This means that, even if the exception applies, the personal data must be disclosed unless, in all the circumstances of the case, the public interest in making the personal data available is outweighed by the public interest in not making it available. This is looked at in more detail in the briefing.

Regulation 11 and neither confirm nor deny

Where any of the exceptions in regulation 11 applies, a public authority can refuse to reveal whether personal data exists or is held by it (regardless of whether it actually holds the personal data), provided it is satisfied that revealing whether the personal data exists or is held would, of itself, involve making personal data available contrary to regulation 11 (see regulation 11(6))

Other Exceptions

Guidance on EIR exceptions which are not listed above - including regulations 10(4)(d) (material in the course of completion), 10(5)(d) (confidentiality of proceedings) and 10(5)(e) (confidentiality of commercial information) - is available in our general guidance on the EIR exceptions