Formulation of Scottish Administration Policy

Guidance on the use of FOISA section 29

Section 29 of the Freedom of Information (Scotland) Act 2002 (FOISA) exempts information from disclosure if it relates to:

  • the formulation or development of government policy;
  • Ministerial communications;
  • the provision of advice by any of the Law Officers (or any request for the provision of such advice); or
  • the operation of any Ministerial private office.

The section 29 exemptions are sometimes referred to as "class-based" exemptions. This means that the exemption will apply if the information falls within a particular class of information (e.g. Ministerial communications). Unlike most of the exemptions, the authority does not have to demonstrate that disclosure of the information would cause harm before applying the exemption.

The exemptions in section 29 are all subject to the public interest test. This means that, even if the exemption applies, the information must be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it. When applying the public interest test, the Scottish Government must consider the public interest in disclosing the factual information used to inform a decision.

The exemption does not last forever. In general, it cannot be applied to information that is more than 15 years old.

This is one of the exemptions where a public authority can refuse to confirm or deny whether it holds the information, provided the authority is satisfied that revealing whether the information exists or is held would be contrary to the public interest (section 18 of FOISA).

Where the First Minister disagrees with a decision from the Commissioner concerning section 29(1), the First Minister can overrule the Commissioner's decision, provided the information is of exceptional sensitivity and provided the First Minister has consulted the other members of the Scottish Government (section 52 of FOISA). At the date of publication of this guidance, this power has never been used.

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Section 29 exemption briefing

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