Guidance on the use of FOISA section 36

Section 36 of the Freedom of Information (Scotland) Act 2002 (FOISA) incorporates two distinct exemptions. Information may be withheld if:

  • it is information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings (for example, if information is "legal privileged") (section 36(1)); or
  • the information was obtained by a Scottish public authority and disclosing it would constitute an actionable breach of confidence (section 36(2)). Section 36(2) basically incorporates the Scots law of confidence into FOISA.

Only the exemption in section 36(1) is subject to the public interest test in FOISA. This means that, even if the exemption applies, the information must be disclosed unless the public interest in withholding it outweighs the public interest in disclosing the information. Although the exemption in section 36(2) is not subject to the public interest test in FOISA, the public interest can play a role in deciding whether the exemption applies.

The exemptions in section 36 don't last forever. In general, they can't be applied to information that is more than 30 years old.

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Section 36 exemption briefing

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