Grounds for refusing to provide information

If the public authority has issued a fees notice, it is not required to provide information until the fee has been paid. [1]

A public authority is not obliged to fulfil a request for information if it estimates that the cost of complying with the information would exceed the prescribed amount. [2] The prescribed amount can be found on the Scottish Information Commissioner's website.

If the public authority believes that the cost of providing the information would exceed the prescribed amount, it must give the applicant notice within 20 working days of receiving the request. [3]

If the public authority does not hold the information, it must notify the applicant within 20 working days of receiving the request. [4] If the public authority is aware that another public authority holds the information, the Code of Guidance suggests that it would be good practice to transfer the request if requested to do so by the applicant. [5]

Some types of information are exempt from being disclosed under the Act.

Absolute exemption

A public authority has the absolute right not to disclose certain information including information:

• that is otherwise reasonably accessible (even if this involves having to pay for the information) [6]

• that the disclosure of which is forbidden by statute [7]

• used in connection with court, tribunal, arbitration or inquiry proceedings [8]

• containing personal data that the provision of which would contravene the Data Protection Act 1998 [9]

• being confidential information that was obtained by the public authority, and where the disclosure of which would equate to a breach of confidence. [10]

Qualified exemption

If information is subject to a qualified exemption the public authority must carry out a balancing exercise to establish if the public interest in disclosure of the information outweighs the public interest in not disclosing the information. [11] Public interest does not mean 'of interest to the public' but 'in the interest of the public'. [12]

Examples of information subject to qualified exemption include:

• information that is intended for future publication [13]

• information held by the Scottish Administration regarding the formation of policy, Ministerial communications and Law Officer advice [14]

• information that could be harmful to commercial interests and the economy [15]

• confidential information obtained during investigations carried out by an authority exercising its statutory duties. [16]

• information relating to confidential communications that could be maintained during legal proceedings (ie communications between a client and a solicitor) [17]

• information that could prejudice a public authority's functions. This does not include internal audits. [18]

If the public authority is refusing to provide the information because the information is exempt, the public authority must send out a notice stating:

• that it holds the information

• the information is exempt

• the reasons why the information is exempt if this is not apparent. [19]

If the information is not covered by an absolute exemption, the notice must specify why the public authority believes that the public's interest in maintaining the exemption should outweigh the disclosure of the information. [20] The public authority does not have to explain why the information is exempt if the process of explaining would disclose information that should itself be exempt. [21]

A public authority does not have to comply with a request if it is vexatious. [22] A vexatious request is one that appears to be not for the information itself but an attempt to disrupt the normal functions of the authority in making the request. Irritation and nuisance caused by receipt of the request should play no part in an authority's consideration of whether or not the application is vexatious. [23]

There is no requirement for a public authority to comply with a request for information, if it has already provided the applicant with information that is identical or substantially similar unless a reasonable amount of time has elapsed between requests. [24] A reasonable amount of time is not defined but the public authority must be prepared to justify its reasoning to the Scottish Information Commissioner. [25]

If the public authority believes that the request for information is vexatious or repeated, notice should be given to the applicant within 20 working days of the request being made. The public authority is not required to serve a notice if notice has already been given to an identical or substantially similar request and it would be unreasonable to expect the public authority to issue a further request. [26]

A refusal notice must contain:

• details of the public authority's complaints procedure

• details about the right to request that the public authority reviews its decision

• details about the right to appeal to the Scottish Information Commissioner. [27]