FOI qualified exemption responses where public interest favours publication: FOI release

Information requested

1) In March 2025, how many qualified exemption responses have the Scottish Government decided that the public interest lies in favour of publication compared to the public interest upholding the exemption to not release?

Response

By way of background, it might be helpful to provide an explanation of the Public Interest Test and when it’s applied.

Please note, there is no definition of the public interest within the legislation. The following has been drawn from the OSIC briefing guidance: “ …it has been described elsewhere as “something which is of serious concern and benefit to the public”, not merely something of individual interest.

It has also been described as “something that is “in the interest of the public”, not merely “of interest to the public.” In other words, it serves the interests of the public.

When applying the test, the public authority must decide whether it serves the interests of the public better to withhold or disclose information.”

Information should only be withheld where the interest in withholding it outweighs the interest of openness.

There are two kinds of exemptions within the legislation: absolute and qualified.

Absolute exemptions: these are exemptions which are not subject to the public interest test. Where an absolute exemption applies, a public authority is entitled to withhold the information without going on to consider the public interest.

Qualified exemptions: these exemptions are subject to the public interest test. The information must be disclosed unless the public interest in disclosing the information is outweighed by the public interest in maintaining the exemption.

You can read about this in greater detail from the OSIC website: PublicInterestTestFOISA_2023.pdf 

In answer to your request where the public interest is considered and it is argued that the information should be released, we are unable to provide this data. When the PI interest is argued in favour of release, the exemption is then removed from the information and not updated on our Micase response system, therefore it is not possible to capture this data.

Therefore, while our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. This is a formal notification under Section 17(1) - information not held.

We do capture the data of FOI and EIR cases where the public interest test was found to lie in favour of the withholding the information under the relevant exemption. I can advise that for March 2025 the number of cases is 102.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.