Section 28: Relations within the United Kingdom

When disclosure would prejudice relations between the Scottish Government and other UK administrations.

Relations within the United Kingdom#

Section 28 of FOISA exempts information where disclosure would, or would be likely to, substantially prejudice relations between the Scottish Government and other UK administrations.

In plain terms#

The authority is saying: releasing this would seriously damage the working relationship between the Scottish Government and Westminster (or the Welsh or Northern Irish governments). This comes up when Scottish and UK ministers or officials have been communicating about shared policy areas, and one side would rather those discussions stayed private.

You ask for correspondence between the Scottish Government and the UK Government about funding arrangements. The Scottish Government refuses under section 28, arguing that releasing candid discussions about money would harm future negotiations between the two governments.

The legal detail#

Section 28(1) exempts information if its disclosure would, or would be likely to, prejudice substantially relations between any administration in the United Kingdom and any other such administration.

Section 28(2) defines those administrations as the UK Government, the Scottish Administration, the Executive Committee of the Northern Ireland Assembly, and the Welsh Government (referred to in the Act as the National Assembly for Wales, now the Senedd Cymru).

The harm test is substantial prejudice. Political awkwardness or embarrassment isn’t enough. The authority must show that disclosure would cause real damage to intergovernmental relations.

Absolute or qualified?#

This exemption is qualified. The public interest test applies. Even if the authority can show substantial prejudice, they must still weigh whether the public interest in disclosure outweighs the interest in protecting intergovernmental relations. See What can they refuse? for more on how the public interest test works.

How it’s used in practice#

Section 28 appears mainly in requests to the Scottish Government rather than to councils or NHS boards. It covers intergovernmental correspondence, joint policy discussions, and negotiations between administrations on areas like funding, constitutional matters, or shared powers.

The substantial prejudice test sets a high bar. The authority can’t rely on a general claim that governments need to communicate in confidence. They must explain how disclosure of the specific information you asked for would damage the relationship. The Commissioner has rejected arguments based on speculative or generalised harm.

Timing matters. If the policy discussion has concluded and the decision has been taken, arguments for withholding lose force. Ongoing negotiations are treated differently from completed ones.

How to challenge it#

Check whether the refusal letter explains the specific prejudice. A generic claim that intergovernmental relations would be harmed isn’t sufficient. The authority should describe the nature of the harm and why it would be substantial.

If the discussion or negotiation is over, argue that the sensitivity has reduced. The Commissioner has repeatedly found that the passage of time and the conclusion of negotiations weaken the case for withholding.

Look at the public interest arguments. Intergovernmental dealings on matters of public concern - such as how public money is allocated between Scotland and the UK - carry a strong public interest in transparency.

See What to do if refused for the full process.

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

Good to know: Section 28 generally cannot be applied to information more than 15 years old. The authority can also use section 28 to neither confirm nor deny whether it holds the information, but only if the information (if held) would be exempt under section 28 and revealing whether it exists would be contrary to the public interest (section 18).