Section 28 - Relations within the United Kingdom

Challenge a refusal under FOISA section 28 - the authority says disclosure would harm relations between UK administrations

What this exemption means#

The authority is saying that releasing the information would damage - or would be likely to damage - the relationship between the Scottish Government and another UK administration (the UK Government, the Executive Committee of the Northern Ireland Assembly, or the Welsh Government).

This is a qualified exemption, so the authority must also show that the public interest in withholding outweighs the public interest in disclosing.

What the authority must show#

For this exemption to be validly applied, the authority must demonstrate that:

Disclosure would, or would be likely to, prejudice substantially relations between the Scottish Administration and another UK administration
The prejudice is real and demonstrable - not speculative or theoretical
The information is less than 15 years old (the exemption cannot apply to information over 15 years old)
The public interest in withholding outweighs the public interest in disclosing

Things to check#

Which relationship? The authority should explain which specific intergovernmental relationship would be affected - for example, between the Scottish Government and the UK Government on a particular policy area.
What harm, specifically? “Substantial prejudice” means real, significant harm - not just mild discomfort or embarrassment. The authority must explain the specific mechanism by which disclosure would damage the relationship.
Is the harm realistic? Vague assertions that disclosure “could damage relations” are not enough. The prejudice must be more than merely possible - there must be a significant probability of real harm. The Scottish Information Commissioner has rejected speculative or generic claims.
How old is the information? Section 28 cannot be applied to information that is more than 15 years old. If the information dates from before that, the exemption has expired.
Public interest test? Even if the exemption applies, there may be a stronger public interest in transparency - for example, where the information relates to a matter of significant public concern.

Use the interactive tool#

Answer the questions below to check whether section 28 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.

Presumption of disclosure There is a general presumption in favour of releasing information held by Scottish public authorities
Public safety and protection The public has a right to know about measures taken to protect them and the details of how those measures work

What authorities typically argue

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

Maintaining intergovernmental trust Authorities argue that the Scottish and UK governments depend on being able to exchange sensitive information confidentially
Private space for cross-government work Officials and ministers need space to discuss complex and sensitive policy issues between administrations without fear of disclosure
Risk of prejudice to relations Releasing information could damage the quality of engagement between the Scottish and UK governments on matters affecting public services
Protecting formal intergovernmental processes Certain formal processes, such as the honours system, are said to rely on absolute confidentiality between administrations to function properly

Factors that tipped the balance

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

Failure to justify withholding The Commissioner found the authority did not adequately explain why the information should be withheld at the time of review
Specific public benefit outweighs harm Where the information directly serves an identifiable public interest, such as public safety, that can outweigh the case for maintaining the exemption

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