National security and defence

Guidance on the use of FOISA section 31

Section 31 of the Freedom of Information (Scotland) Act 2002 (FOISA) contains three separate exemptions.

  • Under section 31(1), information is exempt information if exemption from disclosure is required for the purpose of safeguarding national security.
  • If a member of the Scottish Executive (i.e. the Scottish Government) has certified that exemption is required in order to safeguard national security, that will be conclusive of the fact (section 31(2)).
  • Under section 31(4), information is exempt if disclosure would, or would be likely to, prejudice substantially:
    • the defence of the British Islands or of any colony; or
    • the capability, effectiveness or security of the armed forces or any forces co-operating with them.

All three of the exemptions in section 31 are subject to the public interest test. This means that, even if an exemption applies, the information must be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it.

With section 31, public authorities can refuse to confirm or deny whether they hold the information, provided they are satisfied that revealing whether the information exists or not would be contrary to the public interest (section 18 of FOISA).

Where the First Minister disagrees with a decision from the Commissioner concerning section 31(1) (not section 31(4)), 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. Section 52 certificates shouldn't be confused with those issued under section 31(2).

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Section 31 exemption briefing

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