Regulation 10(5)(d) - Confidentiality of proceedings

Challenge a refusal under EIR regulation 10(5)(d) - the authority says the information relates to confidential proceedings

What this exception means#

The authority is saying that disclosing the information would, or would be likely to, cause substantial prejudice to the confidentiality of proceedings where such confidentiality is provided for by law.

The key phrase is “provided for by law” - there must be a legal basis for the confidentiality, not just an internal policy or convention. The authority must also show that disclosure would cause substantial prejudice, not merely that the proceedings are confidential.

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.

Important: This exception cannot be used to withhold information about emissions - regulation 10(6) specifically prohibits this.

What the authority must show#

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

There are specific proceedings to which the information relates
The confidentiality of those proceedings is provided for by law - not just convention or policy
Disclosure would cause substantial prejudice to that confidentiality
The information is not about emissions (which cannot be withheld under this exception)
Even if the exception applies, the public interest in withholding outweighs the public interest in disclosure, applying the presumption in favour of disclosure

Things to check#

Is the confidentiality provided for by law? This is the critical test. The authority must identify the specific law, statute, or regulation that creates the confidentiality requirement. Internal policies, confidentiality agreements, or mere convention are not sufficient. If the authority cannot name the law, the exception does not apply.
What proceedings are involved? The authority should identify the specific proceedings. General references to “confidential proceedings” without identifying what they are is insufficient.
Is the information actually about the proceedings? The exception covers information about confidential proceedings - not information that is only incidentally related. If the information is about environmental conditions that happen to have been discussed in confidential proceedings, it may not be covered.
Does the information relate to emissions? Under regulation 10(6), information about emissions cannot be withheld under this exception. Emissions includes the direct or indirect release of substances, vibrations, heat, or noise into air, water, or land. This is interpreted broadly.
Has the confidentiality already been lost? If the information from the proceedings has already been disclosed, published, or become publicly known, the confidentiality cannot be maintained.
The public interest test is essential. Even if the exception applies, the authority must demonstrate that the public interest in withholding outweighs the public interest in disclosure, applying the EIRs’ presumption in favour of disclosure.

Use the interactive tool#

Answer the questions below to check whether regulation 10(5)(d) 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.

Accountability in decision-making The public has a right to understand how authorities make decisions, including the formal processes they follow
Transparency of the planning process There is a strong public interest in understanding the planning process, especially for significant or controversial projects
Confidentiality should not conceal errors Authorities cannot use confidentiality claims to hide embarrassing oversights or failures in process
Promoting proper record-keeping Disclosure sends a signal to public bodies that they should properly document their decision-making

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.

Maintaining legal professional privilege Authorities argue that the confidentiality of legal advice must be maintained to ensure they receive candid and comprehensive guidance
Confidentiality of constituent communications Communications between constituents and elected members carry an expectation of privacy that should be respected
Protecting the authority's legal position Disclosure of legal advice could disadvantage the authority in current or future legal proceedings
Preventing inhibition of frank legal advice If legal advice could be disclosed, lawyers might become more cautious, reducing the quality of advice

Factors that tipped the balance

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

Formal information separated from substance Disclosure of formal or procedural aspects of a process could be achieved without revealing the substance of confidential advice
Significant project with public impact Where the project had significant impact, such as affecting a UNESCO world heritage site, the public interest in understanding the process was especially strong
Privilege was lost Where the substance of the advice had already been made public by the authority, privilege could no longer be maintained
Blanket approach not accepted A blanket approach to withholding all pre-planning application advice was not accepted by the Commissioner

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