Can I choose to release information which falls under an exemption?

Yes - section 66 of the Act makes it clear that there is nothing to stop public authorities from disclosing information which falls within one of the exemptions. However, public authorities should be aware that there may be other legislation which will prevent them from releasing the information - see section 26(a).


How should I apply the public interest test?

Information can be excluded from the general right of access if it falls within one of the exemptions listed in the Act. However, when replying to requests for information covered by a number of these exemptions, the authority must consider whether it would be in the "public interest" for the information to be released (see section 2 of the Act.)

The Act does not define the public interest but it has been described as "something which is of serious concern and benefit to the public". It has also been held that public interest does not mean what is of interest to the public but what is in the interest of the public. What constitutes the public interest may change over time and according to the circumstances of each case. Because of this, authorities will need to make any judgements on a case by case basis in the light of emerging guidance or best practice.

When applying this exemption, public authorities must consider whether, in all the circumstances of the case, the benefit to the public in disclosing the information would outweigh any harm this would cause the authority or other affected people. If the two are evenly balanced, the presumption should always be in favour of disclosure.

This list is not exhaustive but contains some of the factors which public authorities should take into account when applying the public interest test:

  • whether disclosure would enhance scrutiny of decision-making processes and thereby improve accountability and participation;
  • whether disclosure keeps the public adequately informed of any danger to public health or safety, or to the environment;
  • whether disclosure would contribute to ensuring that any public authority with regulatory responsibilities is adequately discharging its functions;
  • whether disclosure would contribute to a debate on a matter of public interest.

In deciding whether it is in the public interest to provide information, authorities should not take into account:

  • the possibility of embarrassment to officials;
  • the possible loss of confidence in the authority;
  • the seniority of the people involved; or
  • the risk of the applicant misinterpreting the information.

Further information on the public interest is available from the Section 60 Code published by the Scottish Ministers (see link below).

Section 60 Code of Practice

See also the Scottish Information Commissioner's briefing on The Public Interest Test.


Does the "prejudice to effective conduct of public affairs" exemption (section 30) apply only to the Scottish Ministers?

No. Although the exemption in section 30(a) applies only to information which would prejudice the effective conduct of the Scottish Ministers, the exemptions in section 30(b) and (c) apply to the effective conduct of all Scottish public authorities, including the Scottish Ministers.


Back to Top