- The briefing below provides guidance on the consideration and application of the exemptions under section 35 (Law enforcement) of the Freedom of Information (Scotland) Act 2002 (FOISA) and the exception under regulation 10(5)(b) of the Environmental Information (Scotland) Regulations 2004 (the EIRs).
- The exemptions in section 35 allow public authorities to refuse to disclose information, if disclosure of the information would, or would be likely to, have a substantially prejudicial effect on a wide range of different law enforcement functions and activities.
- To be able to rely on any of the exemptions in section 35(1), the public authority must consider the effect that release of the information would have on its own or another organisation's ability to carry out the function or activity in question. The public authority is required to show that release of this information would have a substantially prejudicial effect on its ability to carry out the relevant function or activity. If it is satisfied that the exemption applies, the public authority must then go on to consider the application of the public interest test.
- The nearest equivalent exception under the EIRs is regulation 10(5)(b).
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 35 exemption briefing (PDF - 143 kB)
Briefing last updated November 2011.
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