Scottish Government

SCOTTISH EXECUTIVE FREEDOM OF INFORMATION (SCOTLAND) ACT 2002:OPEN LEARNING WORKBOOK

MODULE 13
EXEMPTIONS FROM THE RIGHT OF ACCESS - CAN INFORMATION ALWAYS BE ACCESSED? PART 2

13.1 CONTENT AND LEARNING OBJECTIVES

This module and the next module describe the exemptions in the Act and whether these are absolute or non-absolute. When you go through the exemptions in this module and the next module, remember the issues that were raised in Module 12.

Once you have worked through this module you should understand the exemptions for:

• Information otherwise accessible
• Prohibitions on disclosure
• Information intended for future publication
• Relations within the UK
• Formulation of Scottish Administration policy
• Prejudice to the effective conduct of public affairs
• National security and defence
• International relations
• Commercial interests and the economy

SUGGESTED TIME ALLOCATION: 1 hour

13.2 LEARNING MATERIALS

The following is a list of exemptions contained in FOISA. It is continued in the next module. Remember that information may also not need to be disclosed under FOISA because it is held by the authority on behalf of another person or it is held in confidence having been supplied by a Minister of the Crown or by a department of the Government of the UK. This relates to the definition of what is "held" by a public authority, as discussed in Module 2 rather than being an exemption but the effect is the same as information does not have to be released.

13.2.1 Section 25 - Information otherwise accessible

This is an absolute exemption. It relates to information which an applicant can reasonably obtain elsewhere, even if the applicant would have to pay a fee to obtain it. For example, information may already be available in a publication scheme, it may be available under other legislation or it may be available from the National Archives of Scotland.

13.2.2 Section 26 - Prohibitions on disclosure

This is an absolute exemption. It applies where disclosure of information is prohibited by other legislation, it would involve a contempt of court or it would be incompatible with a European Community obligation.

13.2.3 Section 27 - Information intended for future publication

This is a non-absolute exemption and so the public interest test must be applied. The exemption applies where a Scottish public authority holds information with a view to it being published, either by the authority itself or another person, within 12 weeks of the date of the request and it is reasonable in the circumstances to withhold disclosure until publication.

There is guidance on this in the draft section 60 Code as to what to do if an authority becomes aware of a delay in the publication date - it should contact the applicant and explain the reason for the delay and where possible the revised publication date.

There is also an exemption for programmes of research where it is intended that a report will be published and early disclosure would, or would be likely to, prejudice substantially either the programme itself or the interests of an individual participant or an authority.

13.2.4 Section 28 - Relations within the United Kingdom

This is a non-absolute exemption and so the public interest test must be applied. This applies to information which would, or would be likely to, prejudice substantially relations between any administration in the UK and any other such administration, for example the Scottish Executive and the Welsh Assembly.

13.2.5 Section 29 - Formulation of Scottish Administration policy etc.

This is a non-absolute exemption and so the public interest test must be applied. This applies to information held by the Scottish Administration which relates to the formulation and development of government policy, Ministerial communications, requests for or the provision of legal advice or the operation of any Ministerial private office. Once a decision has been taken, the statistical information used as background to inform the decision is no longer exempt under this section. When considering this exemption, the Scottish Administration must have regard to the public interest in the disclosure of factual information which has been used, or is intended to be used, to provide an informed background to the decision.

13.2.6 Section 30 - Prejudice to effective conduct of public affairs

This is a non-absolute exemption and so the public interest test must be applied. This exemption applies to information which would, or would be likely to, prejudice substantially the collective responsibility of the Scottish Ministers or inhibit substantially the exchange of views or provision of advice or would otherwise substantially prejudice the effective conduct of public affairs.

13.2.7 Section 31 - National security and defence

This is a non-absolute exemption and so the public interest test must be applied. Information which is required for the purpose of safeguarding national security is covered and a certificate signed by a member of the Scottish Executive in relation to any information or type of information is conclusive to satisfy this exemption. There is then no right of appeal to the Scottish Information Commissioner although it is possible that an action for judicial review could be taken and that a specific appeals procedure for such certificates will be introduced.

Information whose disclosure would or would be likely to prejudice substantially the defence of the British Isles or any colony or the capability and effectiveness of the armed forces or those co-operating with them is also covered.

13.2.8 Section 32 - International relations

This is a non-absolute exemption and so the public interest test must be applied. This exemption relates to information which would prejudice or be likely to prejudice substantially:

• Relations between the UK and any other State;
• Relations between the UK and any international organisation or international court;
• The interests of the UK abroad or the promotion or protection by the UK of its interests abroad;
• Confidential information obtained from a State other than the UK or an international organisation or international court.

13.2.9 Section 33 - Commercial interests and the economy

This is a non-absolute exemption and so the public interest test must be applied. This exemption covers:

• information which constitutes a trade secret (a trade secret is a business-related fact that the court will protect as being essential to an enterprise);
• information which would, or would be likely to, prejudice substantially the commercial interests of any person including those of a Scottish public authority;
• information whose disclosure would, or would be likely to, prejudice substantially the economic interests of the whole or part of the United Kingdom or the financial interests of an administration in the United Kingdom.

There is guidance in the draft section 60 Code on this exemption in relation to public sector contracts.

13.4 SUMMARY

There are 17 sections in the FOISA dealing with exemptions. The list in this module covers sections 25 - 33 and explains whether each is an absolute or a non-absolute exemption. It also highlights which exemptions the "substantial prejudice" test applies to.

13.5 KEY WORDS

13.6 REFERENCES

Section 25 FOISA Information otherwise accessible
Section 26 FOISA Prohibitions on disclosure
Section 27 FOISA Information intended for future publication
Section 28 FOISA Relations within the United Kingdom
Section 29 FOISA Formulation of Scottish Administration policy
Section 30 FOISA Prejudice to effective conduct of public affairs
Section 31 FOISA National security and defence
Section 32 FOISA International relations
Section 33 FOISA Commercial interests and the economy

13.7 RESOURCES

Section 60 Code:
www.scotland.gov.uk/about/FCSD/MCG-NW/00018022/Code60.pdf

13.8 SELF ASSESSMENT CHECKLIST

1. An exemption could apply to the following types of information :

• trade secrets;
• information disclosure of which would prejudice commercial interests;
• information prejudicial to the economic interests of any part of the UK; and
• information prejudicial to the financial interests of an administration in the UK.

TRUE or FALSE ?

2. A non-absolute exemption is available to prevent prejudice to the effective conduct of public affairs. This would cover information disclosure of which could cause personal embarrassment to ministers. TRUE or FALSE?

3. Where an applicant wants access to the Scottish Environmental Protection Agency's prosecution policy documentation, and makes a request under FOISA, the Agency should refuse because the information requested is exempt. TRUE or FALSE?

4. An exemption is available in respect of information which could substantially prejudice the defence of the British Isles but only where the public interest in withholding the information outweighs the public interest in disclosing it. TRUE or FALSE ?

Click here for answers

13.9 WHAT THEY SAID

"We need to encourage them not to take advantage of those exemptions but to have a culture of giving out as much information as possible". (Alastair Morgan - MSP)

"Authorities will be required to give serious consideration to the application of exemptions. It should not be a case of their saying, "How can we withhold this - do any of the exemptions apply?" Instead, the Commissioner will ensure that the default setting is disclosure". (Jim Wallace - MSP)

13.10 CASE STUDY

A specialist section of the NHS Scotland has become part of a consortium to carry out a specific piece of medical research. The aim of the research is to develop software which helps in assessing the likely success of different types of cancer treatment for patients with a different previous history. Other members of the consortium are private companies, research charities and academic institutions. The consortium is not a legal entity in its own right. If the research is successful, the NHS will be able to benefit by using the resulting software at a reduced licence fee.

The tests have been carried out by the NHS which has the possession and use of the software for this purpose. Interim results of the tests are very encouraging and the consortium is going forward with a plan to develop the software commercially. As the output of the research will be software it will not be possible to patent it. However as it is intended to exploit the software commercially the source code will not be made publicly available.

The product is complex and even someone who obtained access to the work carried out so far would not be able to replicate the product before the consortium's product is available in the marketplace.

The NHS organisation receives a request under FOISA for the software. The applicant states that he intends to develop an equivalent product which he will make available at no cost to the NHS.

Task

1. Are there any relevant exemptions which may apply to this situation?

2. Make a list of five key points that the authority may wish to take into account when deciding whether to disclose.