Prejudice to effective conduct of public affairs
- The briefing below provides guidance on the consideration and application of the exemptions under section 30 (Prejudice to effective conduct of public affairs) 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).
-
The exemptions under section 30 of FOISA should not be regarded as "class exemptions" under which information of a certain type (e.g. advice to Ministers) can be withheld without considering the content of the information. Requests for information should be assessed on an individual basis, and authorities should focus on the effect of releasing the specific information involved.
-
Each of the exemptions within section 30 of FOISA contains a harm test. Authorities must therefore demonstrate that a particular level of harm is likely to occur from disclosure before each exemption can be applied.
-
When considering the exemptions under section 30(b) or (c), the sensitivity of the information will frequently be a factor when assessing the potential effect of its disclosure. The effect of the release of relevant information will also frequently diminish over time.
-
With regard to environmental information, there is no harm test required when considering the application of regulation 10(4)(e). Authorities must simply demonstrate that the information is an "internal communication".
-
Each of the relevant FOISA exemptions and the EIR exception are, however, subject to a public interest test.
The briefing is intended to provide general guidance on the interpretation and application of the relevant exemptions and exceptions. 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.
Download the briefing (558kb)