EIR exceptions

If your request was for environmental information, it falls under the Environmental Information (Scotland) Regulations 2004 (EIRs), not FOISA.

The EIRs have a different set of exceptions from FOISA’s exemptions. There are some important differences:

• All EIR exceptions under regulation 10 are subject to a public interest test - there are no absolute exceptions
• There is a stronger presumption of disclosure under the EIRs than under FOISA
• The authority must interpret exceptions restrictively
• Environmental information includes a wide range of topics: pollution, planning, land use, energy, waste, water quality, and anything that affects or is likely to affect the environment

Exceptions under the EIRs#

Select the exception cited in your refusal letter:

Regulation 10(4) - procedural exceptions:

• Regulation 10(4)(a) - Information not held
• Regulation 10(4)(b) - Manifestly unreasonable requests
• Regulation 10(4)(c) - Requests which are too general
• Regulation 10(4)(d) - Material in the course of completion
• Regulation 10(4)(e) - Internal communications

Regulation 10(5) - substantive exceptions:

• Regulation 10(5)(a) - International relations, defence, national security, public safety
• Regulation 10(5)(b) - Course of justice and inquiries
• Regulation 10(5)(c) - Intellectual property rights
• Regulation 10(5)(d) - Confidentiality of proceedings
• Regulation 10(5)(e) - Commercial or industrial confidentiality
• Regulation 10(5)(f) - Interests of the information provider
• Regulation 10(5)(g) - Protection of the environment

Regulation 11:

• Regulation 11 - Personal data

What to look for in any EIR refusal#

Regardless of which exception is cited, the authority must:

1. Identify the specific exception being relied on
2. Explain why the exception applies to your information
3. Carry out a public interest test - applying the presumption in favour of disclosure
4. Consider whether partial disclosure is possible
5. Tell you about your right to request a review