- The briefing below provides guidance on the consideration and application of the exemptions under section 38 (Personal information) of the Freedom of Information (Scotland) Act 2002 (FOISA) and the exception under regulation 11 (Personal data) of the Environmental Information (Scotland) Regulations 2004 (the EIRs).
- Section 38 of FOISA details a number of circumstances where the personal data of individuals can be withheld from release. 'Personal data' is defined within section 1(1) of the Data Protection Act 1998 (the DPA).
- The most commonly used exemptions under section 38 are 'absolute', meaning that, where the exemptions apply, an authority is not required to consider any other factor when deciding to withhold the information. Two of the less commonly used section 38 exemptions are, however, subject to the public interest test.
- Where a request is received for the personal data of a third party, authorities must normally consider whether the release of the information will breach any of the data protection principles in the DPA before deciding whether or not it can be disclosed. Where release would breach any of the principles, the information must be withheld.
- Regulation 11 of the EIRs is similar to section 38 of FOISA.
The briefing below 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.
Section 38 exemption briefing (PDF - 179 kB)
Briefing last updated November 2011.
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