Section 29: Formulation of Scottish Administration policy

Information relating to the development of Scottish Government policy - a class-based exemption with no harm test.

Government policy#

Section 29 of FOISA exempts information held by the Scottish Government that relates to the development of government policy. This exemption is only available to the Scottish Administration (which includes the core Scottish Government, executive agencies, and non-ministerial departments), not to councils, NHS boards, or other public authorities.

In plain terms#

The Scottish Government is saying: this information relates to policy we’re developing, or to discussions between ministers, or to legal advice from the Law Officers. They’re arguing they need space to consider options without every draft and internal discussion being made public while work is still in progress.

You ask the Scottish Government for briefing papers prepared for the Cabinet Secretary on options for reforming council tax. They refuse under section 29, arguing the papers relate to policy still being developed.

The legal detail#

Section 29(1) exempts information held by the Scottish Administration if it relates to:

(a) the formulation or development of government policy
(b) Ministerial communications (including Scottish Cabinet proceedings and discussions between ministers)
(c) the provision of advice by any of the Law Officers, or any request for such advice
(d) the operation of any Ministerial private office

These are class-based exemptions. If the information falls within one of these categories, the exemption applies without the authority needing to show that disclosure would cause harm.

Section 29(2) contains an important limit. Once a policy decision has been taken, statistical information used to inform that decision can no longer be treated as relating to policy formulation or Ministerial communications.

Section 29(3) applies only where the exemption is claimed under section 29(1)(a). It requires the Scottish Administration, when applying the public interest test, to have regard to the public interest in disclosing factual information that was used (or is intended to be used) to provide an informed background to a decision.

Absolute or qualified?#

This exemption is qualified. The public interest test applies to all four limbs. The Scottish Government must weigh the public interest in disclosure against the interest in withholding. The law specifically requires them to consider the value of releasing factual and statistical background material, even when they withhold policy advice and opinions.

See What can they refuse? for more on how the public interest test works.

How it’s used in practice#

Section 29 appears frequently in requests to the Scottish Government about policy development, draft legislation, and ministerial decision-making. Because it’s class-based, the Government doesn’t need to demonstrate harm - just that the information falls within the category. But this doesn’t make withholding automatic. The public interest test still applies, and it’s where most challenges succeed.

Once a policy decision is made, the arguments for withholding background material weaken significantly. The Commissioner has often ordered disclosure of policy papers, options appraisals, and briefings after the decision they relate to has been announced. The “space to think” has served its purpose once the thinking is done.

The Law Officers’ advice limb is worth noting. Section 29(1)(c) is broader than legal professional privilege under section 36. It covers any advice from the Lord Advocate, the Solicitor General for Scotland, or other Law Officers, regardless of whether it would attract privilege. But the public interest test still applies, and the Commissioner has ordered disclosure of Law Officers’ advice where the public interest was strong enough.

Only the Scottish Administration can use section 29. If a council or health board refuses your request and cites section 29, that’s wrong. They may mean to rely on section 30, which is a different exemption available to all authorities.

How to challenge it#

If the policy decision has been taken, say so. Argue that the purpose of the exemption - protecting live policy development - no longer applies. Point to any public announcement confirming the decision.

Ask whether the information includes factual or statistical material. Under section 29(2), statistics used to inform a completed decision can’t be withheld under this exemption. Under section 29(3), the Government must specifically consider the public interest in releasing factual background. If the refusal letter doesn’t address this, raise it in your review.

If the Government relies on the Ministerial communications limb, check whether the information actually consists of communications between ministers. Correspondence between a minister and an official, or between officials, doesn’t fall within section 29(1)(b).

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 29 generally cannot apply to information more than 15 years old. The Scottish Government can neither confirm nor deny whether it holds the information under this exemption. The First Minister has the power to overrule the Commissioner on section 29(1) decisions by issuing a certificate under section 52 of FOISA, but this power has never been used.