Regulation 10(5)(f): Interests of the information provider

When disclosure of environmental information would substantially prejudice the interests of a person who provided the information voluntarily.

Interests of the information provider#

Regulation 10(5)(f) of the EIR(S) allows an authority to refuse your request if disclosure would, or would be likely to, substantially prejudice the interests of a person who provided the information voluntarily. This exception exists to encourage the flow of information to public authorities from people who are not obliged to provide it.

In plain terms#

The authority is saying that someone gave them the information freely, without being required to do so by law, and that releasing it would cause serious harm to that person’s interests. The person did not consent to disclosure. This might involve voluntary environmental data submitted by a business, research contributed by an academic, or information shared by a whistleblower.

Scottish Natural Heritage (now NatureScot) received data from a local Area Management Group about salmon farming in a sea loch. The group was not legally obliged to share this data. SNH argued that releasing it would harm the group’s interests and damage the trust that allows voluntary cooperation with the regulator.

The legal detail#

Three conditions must all be met before this exception can apply:

The person who provided the information was not under, and could not have been put under, any legal obligation to supply it. If the authority had a statutory power to compel the information - whether or not it actually used that power - this condition fails.
The person did not supply it in circumstances such that it could otherwise be made available. Internal communications and jointly negotiated contract wording are not covered - the information must have genuinely come from the third party.
The person has not consented to disclosure. The Aarhus Convention Implementation Guide indicates that it is not enough that the provider simply provided the information voluntarily - the provider must have denied consent for disclosure before the exception can apply. In Decision 056/2023, the Commissioner found that specific refusal of consent was fundamental to the application of this exception.

Even where all three conditions are met, the authority must still show that disclosure would cause substantial prejudice to the provider’s interests. This is a separate requirement - the conditions are gateways, not the end of the analysis.

The public interest test#

The public interest test applies. The fact that someone provided information voluntarily is a relevant factor in the balance, but it does not override the public interest in disclosure where the information concerns environmental harm or public health. The authority must apply the presumption in favour of disclosure.

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

How it’s used in practice#

This exception protects the voluntary flow of environmental information to regulators. SEPA, NatureScot, and local authorities all rely on voluntary cooperation from businesses, landowners, researchers, and communities. If people feared that anything they shared voluntarily would be released publicly, they might stop sharing - and the regulators’ picture of the environment would suffer.

In Decision 046/2010, Scottish Natural Heritage withheld information provided voluntarily by an Area Management Group about salmon farming in Loch Ewe. The Commissioner recognised the need to maintain trust between the group and SNH, but also ordered disclosure of information that was already in the public domain.

In Decision 076/2016, Scottish Ministers withheld correspondence between King Charles, then Prince of Wales, and the First Minister. There was no evidence that he had refused consent to disclosure or that disclosure would cause substantial prejudice to his interests.

The Commissioner applies the exception strictly. In Decision 032/2016, Aberdeenshire Council tried to argue that the exception could apply to internal communications. The Commissioner disagreed - the Aarhus Convention makes clear that this exception applies only to information from third parties.

How to challenge it#

Could the authority have compelled the information? This is often the decisive question. If the authority had any statutory power to require the information - even if it chose not to use it - the first condition fails and the exception cannot apply.

Did the provider actually refuse consent? Ask whether the authority consulted the provider and received a specific refusal. If the authority did not ask, or the provider has not objected, the exception is much harder to sustain.

Is the information already public? If the information (or the substance of it) is available through other channels, the exception does not apply. The provider’s interest in confidentiality is only relevant if the information is not otherwise accessible.

What are the provider’s specific interests? The authority must show substantial prejudice to identifiable interests - not just assert that the provider might be upset or inconvenienced by disclosure.

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: The emissions carve-out applies. Under regulation 10(6), this exception cannot be used to withhold information that relates to emissions. In Decision 191/2017, the Commissioner found that information about anti-parasitic medicinal compounds used against sea-lice was information about emissions under regulation 10(6), meaning regulation 10(5)(f) could not apply. This is important in practice - businesses that voluntarily report emissions-related data to regulators cannot then rely on this exception to prevent its release. There is no direct FOISA equivalent to this exception.