Regulation 10(4)(e): Internal communications

When the information requested consists of internal communications of a Scottish public authority.

Internal communications#

Regulation 10(4)(e) of the EIR(S) allows an authority to withhold internal communications. Of all the EIR(S) exceptions, this is the broadest. It applies to any communication between officials within the same authority - regardless of content and regardless of whether releasing it would cause any harm at all.

In plain terms#

The authority is saying: this is an internal discussion and we don’t want to make it public. It might be emails between officers, notes from a meeting, a briefing paper for senior management, or a draft report circulated for comment.

A community group asks Scottish Ministers for internal emails discussing whether to approve a controversial wind farm application. The Ministers cite regulation 10(4)(e). The emails are internal communications - but whether the public interest justifies withholding them is a separate question, and often the harder one for the authority to answer.

The legal detail#

Regulation 10(4)(e) applies to the extent that the request involves making available internal communications. The word “communication” means more than information used by its author alone. An aide-memoire kept for the author’s own reference is not a communication; a note of a meeting shared with colleagues is.

Examples of internal communications include internal email exchanges, file notes prepared for internal use, minutes of meetings, and documents circulated within the authority. Drafts count as internal communications provided they haven’t been sent to a third party.

This is a class exception. If the information is an internal communication, the exception applies - no need to show harm. This makes it different from the nearest FOISA equivalent, section 30, which requires the authority to demonstrate that disclosure would cause substantial prejudice to the effective conduct of public affairs or would substantially inhibit the free and frank exchange of views.

The public interest test#

The breadth of this exception is balanced by the public interest test, which is where the real argument takes place. The authority must weigh the public interest in disclosure against the interest in maintaining the exception, with a presumption in favour of disclosure. The mere fact that something is an internal communication does not settle the question.

The Commissioner has consistently found that the balance shifts over time. While a decision is actively being considered, there may be a genuine interest in protecting the space for candid discussion. Once the decision has been taken, the interest in accountability grows and the case for withholding weakens.

See What can they refuse? for more on the public interest test under the EIR(S).

How it’s used in practice#

The definition of “internal” is potentially wide. Communications between an authority and its executive agencies can be internal. The Commissioner accepted that correspondence between Scottish Ministers and Historic Scotland was internal because Historic Scotland was an executive agency of the Scottish Government. But a contractual relationship with an outside company is not enough. Communications between East Dunbartonshire Council and a company carrying out asbestos sampling on its behalf were not “internal,” even though the company was working under contract.

In rare cases, communications between two separate public authorities can qualify as internal. The authority must demonstrate that the administrative and legal relationship between the two bodies is close enough to justify treating the communications as internal. This is exceptional, not routine.

Certain types of material should not be treated as internal communications even when found in internal records. The Aarhus Convention Implementation Guide says that factual materials - even in preliminary or draft form - should not be withheld under this exception. Nor should opinions expressed by bodies acting as statutory consultees during a decision-making process, or studies commissioned from related but independent entities. If the information has already been disclosed to a third party, it loses its internal character.

The Commissioner has also distinguished between factual content and deliberative content within the same set of documents. In a case involving sea lice at Scottish salmon farms, the Commissioner found that Scottish Ministers could withhold internal policy deliberations, but ordered disclosure of factual information and material that was already publicly known.

How to challenge it#

Has the decision been taken? This is your strongest argument. If the policy has been set, the contract awarded, the approval given, or the report published, argue that the deliberative process is over. The public has a legitimate interest in understanding how and why the decision was made.

Is the information factual? Internal records often contain a mix of factual data and opinion. Even where the authority can withhold the deliberative material, it should release the factual content. Ask for the facts to be separated out.

How old are the communications? The older the material, the harder it is for the authority to justify withholding. Communications from years ago about a decision long since taken are difficult to defend.

Did they apply the public interest test properly? Check the refusal letter for a genuine balancing exercise. If the authority simply asserted that the information is internal without explaining why the public interest favours withholding in this particular case, the test hasn’t been done properly.

See What to do if refused for the full process.

You can also use our interactive challenge tool for this exception to work through these questions step by step and draft a review request.

Good to know: This exception has no time limit - it can apply to internal communications regardless of their age. But age works against the authority in the public interest test, because the case for protecting internal deliberations weakens as time passes. Under FOISA, section 30 is the nearest equivalent, but section 30 requires showing substantial prejudice or inhibition. The EIR(S) exception is broader in scope - it covers all internal communications - but narrower in effect, because the public interest test and the presumption in favour of disclosure do the work that the harm test does under FOISA.