Prohibitions on disclosure

This briefing provides guidance on the consideration and application of the exemption under Section 26 (prohibitions on disclosure) of the Freedom of Information (Scotland) Act 2002.

Section 26 of FOISA exempts information where the disclosure of that information is prohibited in one of a number of specified ways i.e. its disclosure: is prohibited by or under an enactment; is incompatible with a Community obligation; or would constitute, or be punishable as, a contempt of court.

It is an absolute exemption i.e. if information falls into any of the three categories above, there is no requirement to apply the public interest test.

It lasts 'in perpetuity' – i.e. the information will remain exempt as long as the enactment which prohibits it is in place – this will not be diminished by the passage of time.

It has no equivalent in the Environmental Information (Scotland) Regulations 2004 (the EIRs).

This briefing is intended to provide general guidance on the interpretation and application of the relevant section. Please remember that all requests for information must be considered on a case by case basis - the Commissioner's decision is made on the basis of the specific circumstances of each case.

Section 26 exemption briefing (PDF - 105 kB)

Briefing last updated November 2011.