Regulation 10(4)(e) - Internal communications

Challenge a refusal under EIR regulation 10(4)(e) - the authority says the information is an internal communication

What this exception means#

The authority is saying the information is an internal communication - for example, internal emails, meeting notes, or documents circulated within the organisation. This is a class-based exception, meaning the authority doesn’t need to show that disclosure would cause harm. But it still must pass the public interest test.

This exception is frequently overused. It is the EIR equivalent of section 30 of FOISA, and authorities misuse it in similar ways - applying it too broadly without genuinely engaging with the public interest test.

Unlike FOISA, all EIR exceptions are subject to a public interest test and must be interpreted restrictively. There is a presumption in favour of disclosure.

What the authority must show#

For this exception to apply, the authority must demonstrate that:

The information is genuinely an internal communication - sent or shared within the organisation
It has considered whether partial disclosure is possible - separating internal communications from factual information
The public interest in withholding outweighs the public interest in disclosure - and there is a presumption in favour of disclosure (regulation 10(2)(b))

Things to check#

Is the information genuinely an internal communication? The exception only covers communications exchanged within the authority. If the information was sent to or received from an external party - a contractor, consultant, member of the public, or another authority - it is not an internal communication.
Factual information is not protected. Even if factual data is included in an internal communication, the factual content itself may not be covered by this exception. The Commissioner has held that factual materials - such as data, statistics, or measurements - are not internal communications just because they appear in internal documents.
Opinions as a statutory consultee are not protected. If the authority expressed views as part of a statutory consultation process - for example, as a consultee on a planning application - those views are not internal communications, even if they were prepared internally before being shared.
Did they consider partial disclosure? The authority should consider whether it can separate internal opinions from factual information and release the factual content. Refusing everything because some elements are internal communications is likely a misapplication of the exception.
The public interest test is crucial. Because this is class-based (no harm needs to be shown), the public interest test does all the heavy lifting. The authority must demonstrate that the public interest in withholding genuinely outweighs the public interest in disclosing environmental information, with the presumption in favour of disclosure applied. The public interest in transparency of environmental decision-making is very strong.
Is this being used as a blanket refusal? If the authority has applied this exception to everything that’s internal without assessing each document, that’s a misapplication. Each piece of information should be individually considered.

Use the interactive tool#

Answer the questions below to check whether regulation 10(4)(e) has been properly applied to your request.

What the evidence shows

Arguments that have supported disclosure

In cases where the public interest test favoured disclosure, these themes appeared most often.

Transparency and accountability The public has a right to see how public authorities make decisions, especially on matters that affect their community or environment
Scrutiny of planning and development There is a strong public interest in understanding the process behind planning decisions, particularly for large-scale or controversial developments
Public spending and value for money Where significant public money is spent, or lost, the public has a right to understand why and how decisions were made
Environmental impact and protection The public has a right to scrutinise how authorities handle environmental issues, from species protection to pollution enforcement
Informed public participation People can participate more effectively in environmental decisions when they understand the internal reasoning of authorities
Presumption in favour of disclosure The EIRs carry a strong presumption in favour of making environmental information available, and the internal communications exception is to be interpreted restrictively

What authorities typically argue

These are the arguments authorities most commonly make when withholding information under this exception. Knowing them helps you prepare a stronger case.

Private space for policy deliberation Authorities argue that officials need a protected space to discuss, debate, and develop options without public scrutiny of every stage
Free and frank exchange of views Internal discussions must be candid and uninhibited, which would be undermined if officials feared premature disclosure
Protecting confidential legal advice Legal advice exchanged internally must remain confidential to ensure authorities receive comprehensive guidance
Risk of prejudicing ongoing processes Disclosure could disrupt current planning processes, commercial negotiations, or enforcement action
Avoiding confusion from incomplete information Releasing draft or preliminary internal views could mislead the public about the authority's actual position

Factors that tipped the balance

In decisions where the Commissioner ordered disclosure, these factors were decisive.

Information was factual or routine The Commissioner found the information was factual, background, or routine rather than the kind of frank internal deliberation the exception was designed to protect
Authority failed to demonstrate harm The authority's arguments about inhibition or harm were generic, unsubstantiated, or hypothetical rather than based on evidence
Decision had already been taken Where the relevant decision had been made and implemented, the case for protecting ongoing deliberation fell away
Information was already public Some or all of the information was already in the public domain, undermining the case for withholding
Strong specific public interest The Commissioner found the public interest in the particular environmental issue was particularly strong, given factors like public spending, community impact, or controversy
Restrictive interpretation required The EIRs require exceptions to be interpreted restrictively, and the Commissioner applied this principle in finding the exception did not justify withholding

Based on published decisions of the Scottish Information Commissioner. You can browse the decisions on the Commissioner's website.