Section 29 - Formulation of Scottish Administration policy

Challenge a refusal under FOISA section 29 - the authority says the information relates to government policy-making

What this exemption means#

The authority is saying the information relates to the internal workings of Scottish Government policy-making. This covers things like policy options being considered, communications between ministers, advice from law officers, and the work of ministerial private offices.

This is a qualified exemption and a “class-based” exemption - it applies based on the category of information, not on demonstrating specific harm. But the authority must still pass the public interest test.

What the authority must show#

Section 29 has four separate limbs. The authority should say which one applies:

Section 29(1)(a) - formulation or development of government policy
Section 29(1)(b) - communications between Ministers
Section 29(1)(c) - advice from Law Officers (Lord Advocate, Solicitor General, etc.)
Section 29(1)(d) - operation of a Ministerial private office

For all four, the authority must also:

Confirm the information falls within one of these categories
Show the information is less than 15 years old
Carry out and explain a public interest test

Things to check#

Is the authority part of the Scottish Administration? Section 29 only applies to the Scottish Administration - the Scottish Government, its executive agencies, and non-ministerial departments. Local councils, health boards, and other public authorities cannot use this exemption.
Which limb did they cite? The authority should specify which part of section 29 they’re relying on. Simply citing “section 29” without specifying is vague and may not be sufficient.
Is the policy still being formulated? For section 29(1)(a), once a policy decision has been taken, the exemption is harder to sustain. In particular, statistical information used to support a policy decision that has already been taken cannot be withheld under this exemption.
Is the information over 15 years old? The exemption cannot apply to information more than 15 years old.
Public interest test? There is often a strong public interest in transparency around government policy-making. The authority must explain why withholding serves the public interest more than disclosure - and “avoiding embarrassment” or “it might be misunderstood” are not valid reasons.

Use the interactive tool#

Answer the questions below to check whether section 29 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 government policy is developed and to hold ministers accountable for their decisions
Informing public debate Disclosure enables the public to engage meaningfully in ongoing debates about policy issues that affect their lives
Reduced sensitivity over time Information that was once sensitive loses its sensitivity as time passes, policies are finalised, and the context changes
Understanding crisis decision-making There is an especially strong public interest in understanding how the government made decisions during emergencies and crises
Scrutiny of the policy process The public can examine the range of options considered and the basis for choosing one approach over another

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.

Private space for policy development Authorities argue that ministers and officials need space to discuss, test, and develop policy options without premature public scrutiny
Free and frank exchange of views Civil servants and ministers should be able to give honest, uninhibited advice without fear that it will later be disclosed
Collective responsibility The principle of collective cabinet responsibility requires that ministers can debate freely in private and present a united front
Risk of inhibiting future candour Disclosing internal discussions would make officials more guarded in future, reducing the quality of advice and decision-making
Risk of misleading the public Releasing provisional views, early options, or incomplete analysis could confuse the public about settled government policy

Factors that tipped the balance

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

Information was routine or anodyne The Commissioner found the information was not actually expressed in a way that would result in the substantial inhibition the authority claimed
Passage of time reduced the harm Enough time had passed that releasing the information would no longer cause the damage to policy-making the authority argued
Strong public interest outweighs claimed harm The specific public interest in the topic - such as pandemic decision-making or major policy changes - outweighed the general interest in private policy space
Authority overstated the harm The Commissioner found the authority's arguments about inhibition or damage to decision-making were not supported by the evidence
Information adds to what is already public The information adds valuable perspective to what is already in the public domain, and releasing it would not undermine private thinking space

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