Confidentiality

• The briefing below provides guidance on the application of the two exemptions under section 36 (Confidentiality) of the Freedom of Information (Scotland) Act 2002 (FOISA), and the exceptions under regulations 10(5)(b) and (e) of the Environmental Information (Scotland) Regulations 2004 (the EIRs).

• Section 36 of FOISA describes two separate situations in which information may be exempt from disclosure.

• The first part of the exemption (section 36(1)) applies to any information about which a claim to confidentiality of communications could be maintained in legal proceedings.

• The second part of the exemption (section 36(2)) applies to information which, if disclosed, would constitute an actionable breach of confidence.

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 36 exemption briefing (PDF - 152 kB) 

Briefing last updated November 2011.

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