Formulation of Scottish Administration Policy

The briefing provides guidance on the consideration and application of the exemptions under section 29 (Formulation of Scottish Administration policy etc) of the Freedom of Information (Scotland) Act 2002 (FOISA), and the exception under regulation 10(4)(e) of the Environmental Information (Scotland) Regulations 2004 (the EIRs).
Consideration of whether section 29 of FOISA applies to information held by the Scottish Administration involves a two-stage process. Firstly, determining whether the information relates to the formulation or development of government policy, Ministerial communications, the provision of advice by any of the Law Officers (or to a request for the provision of such advice) or the operation of any Ministerial private office. Secondly, determining whether the public interest in disclosure of the information is outweighed by the public interest in maintaining the exemption and withholding it.
When applying the public interest test, this must involve consideration of the actual content of the information withheld, including its relative sensitivity and the effect of disclosure.
With regard to environmental information, authorities must demonstrate that the information is an "internal communication" and must also consider the public interest test.

The 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, and the Commissioner's decision is made on the basis of the specific circumstances of each case.

Section 29 exemption briefing (PDF - 123 kB)

Briefing last updated November 2011.