Section 36 - Confidentiality

Challenge a refusal under FOISA section 36 - the authority says the information is confidential or legally privileged

What this exemption means#

The authority is saying the information is confidential. Section 36 contains two separate exemptions:

Section 36(1) - the information is subject to legal professional privilege (a claim to confidentiality of communications could be maintained in legal proceedings). This is a qualified exemption - the public interest test applies.
Section 36(2) - disclosing the information would constitute an actionable breach of confidence. This is an absolute exemption - the public interest test in FOISA does not apply, although the law of confidence itself includes a public interest defence.

Authorities often cite section 36 without specifying which subsection. This is an error - the two subsections have very different legal tests and one is qualified while the other is absolute.

What the authority must show#

For section 36(1) - legal professional privilege#

The authority must show:

The information relates to communications with a legal adviser (a qualified lawyer acting in a professional capacity)
The communication was made for the purpose of seeking or giving legal advice, or was created in contemplation of litigation
The information remains confidential - privilege may be lost if the advice has already been disclosed
The public interest in maintaining the exemption outweighs the public interest in disclosure

For section 36(2) - actionable breach of confidence#

The authority must show:

The information was obtained from another person (not created internally by the authority)
Disclosure would be an actionable breach of confidence - meaning: the information has the necessary quality of confidence, the authority received it in circumstances imposing an obligation of confidence, and disclosure would cause detriment to the person who communicated it

Things to check#

Did they specify which subsection? Citing section 36 generically is a common error. The two subsections have entirely different tests. If the authority hasn’t said whether it’s relying on 36(1) or 36(2), ask them to clarify.
For section 36(1) - is a lawyer actually involved? Legal professional privilege only covers communications with qualified legal advisers. It does not cover advice from non-lawyers, even if that advice is about legal matters. In-house solicitors are covered, but only when acting in their capacity as legal advisers.
For section 36(1) - has the privilege been waived? If the authority has already disclosed the advice or a comprehensive summary of it, the privilege may have been lost. Partial disclosure of advice may also weaken a claim to privilege over the rest.
For section 36(1) - is the whole file really privileged? Authorities should not withhold the entire contents of a legal file under section 36(1). Not everything in a legal file will be privileged - each document must be assessed individually.
For section 36(2) - was the information really obtained from another person? Internal documents created by the authority itself cannot be exempt under section 36(2), because they are not “obtained from another person.” A public authority is a single legal person - documents passing between departments are not obtained from another person.
For section 36(2) - does the information still have the quality of confidence? The passage of time is relevant. Information that was once confidential may have lost that quality - particularly if it is now common knowledge or can be ascertained from public sources.
For section 36(2) - is there actually an obligation of confidence? Just because information is marked “confidential” does not mean disclosing it would be actionable. The authority must show an actual obligation of confidence, either express or implied. The Commissioner expects authorities to have good reasons for accepting confidentiality clauses.
Was “commercial confidentiality” cited? There is no single exemption for “commercial confidentiality” in FOISA. If information is commercially sensitive, the authority may need to rely on section 33 (commercial interests) or section 36(2) (breach of confidence) - but the tests are different.

Use the interactive tool#

Answer the questions below to check whether section 36 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.

Sustained public interest in the topic Where a matter has attracted clear and ongoing public, media, or political attention, the case for transparency about legal advice is stronger
Scrutiny of decisions on public spending The public has a right to understand the legal basis for decisions that cost significant sums of public money
Accountability for how legal powers are used Public bodies should be open about the legal advice that shaped decisions affecting the public
Information not available elsewhere Where the public interest can only be satisfied by disclosure of the actual information, the case for maintaining the exemption is weaker
Transparency of statutory functions Where third parties guide how authorities exercise their statutory functions, the public has a right to scrutinise that guidance

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.

Inherent public interest in legal privilege Authorities argue there is a strong, built-in public interest in maintaining the confidentiality of communications between legal adviser and client
Quality of legal advice Lawyers must be free to give candid, comprehensive advice without fear it will be disclosed, otherwise advice becomes more cautious and less useful
Fully informed decision-making Public bodies need confidential legal advice to make well-informed decisions and discharge their functions effectively
Administration of justice Maintaining legal privilege serves the broader public interest in the proper administration of justice
Protecting the authority's legal position Disclosure could disadvantage the authority in current or future legal proceedings

Factors that tipped the balance

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

Sustained public interest outweighed privilege The Commissioner found the public interest in the specific topic was of sufficient substance to outweigh the inherent interest in maintaining legal privilege
Proceedings concluded Where legal proceedings had finished with no prospect of further appeal, the case for maintaining privilege was weakened
Information did not go to substance of advice Information such as dates, timelines, or factual context did not reveal the actual content of legal advice
Information was already publicly known Where the substance of the information was already in the public domain, maintaining privilege served little purpose
Authority failed to justify withholding The authority refused to provide information to the Commissioner or failed to substantiate its arguments for maintaining the exemption

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