National Security and Defence

The briefing below provides guidance on the application of the exemptions under section 31 (National security and defence) of the Freedom of Information (Scotland) Act 2002 (FOISA), and the corresponding exception under regulation 10(5)(a) of the Environmental Information (Scotland) Regulations 2004 (the EIRs).
There are three exemptions under section 31of FOISA. Section 31(1) concerns the safeguarding of national security, while section 31(4) contains two exemptions relating to defence and the armed forces.
Section 31(1) is, in some ways, similar to FOISA's 'class-based' exemptions, under which information is exempt because falls within a particular category. This will be the case where a ministerial certificate has been issued in relation to the information. If no such certificate has been issued, the public authority must fully justify its use of the exemption.
Section 31(4) is a 'content-based' exemption and, as such, is subject to a harm test. Under this test, the public authority must demonstrate that disclosure of the information would, or would be likely to, cause substantial prejudice.
Where a request is for environmental information, public authorities, when considering the application of regulation 10(5)(a), must consider whether disclosure of information will substantially prejudice national security or defence.
Each of the relevant FOISA exemptions and EIR exceptions are subject to a public interest test.

The briefing is intended to provide general guidance on the interpretation and application of the relevant sections. 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.

Download the briefing (PDF - 204kb)