The public interest test

What is the public interest test?#

When a Scottish public authority refuses to disclose information under a qualified exemption (FOISA) or any exception (the EIRs), it must go further than simply showing the exemption applies. It must also consider whether the public interest in disclosing the information outweighs the public interest in withholding it.

This is the public interest test. It is usually the most important battleground in FOI disputes. Even where an exemption clearly applies, the authority must still release the information if the balance of public interest favours disclosure.

When does it apply?#

The public interest test applies to:

• All qualified exemptions under FOISA. These include sections 27–35 (future publication, UK relations, government policy, public affairs, national security, international relations, commercial interests, investigations, and law enforcement), section 36(1) (legal privilege), and sections 39–41 (health and safety, audit functions, and royal communications).
• All exceptions under the Environmental Information (Scotland) Regulations 2004 (the EIRs).

It does not apply to the absolute exemptions under FOISA: section 25 (information otherwise accessible), section 26 (prohibitions on disclosure), section 36(2) (breach of confidence), and section 37 (court records). Section 38 (personal information) is mostly absolute, but in two specific situations involving third-party personal data, the public interest test does apply.

The burden falls on the authority, not you. You do not have to prove that the public interest favours disclosure. The authority has to justify why it doesn’t.

Under the EIRs, there is an additional presumption: all exceptions must be interpreted restrictively, with a presumption in favour of disclosure. This makes the EIRs public interest test stronger for requesters than the FOISA equivalent.

How the Commissioner applies it#

The Scottish Information Commissioner applies the test by weighing the competing interests:

1. Identifying the public interest in disclosure: transparency, accountability, informed public debate, scrutiny of decision-making, public safety, environmental protection.
2. Identifying the public interest in withholding: the interests the exemption is designed to protect (not the authority’s private interests).
3. Weighing the balance: considering the specific circumstances, not applying a blanket rule.

The Commissioner has repeatedly held that:

• The public interest is not the same as what interests the public. It is about the common good.
• The passage of time generally weakens the case for withholding, especially once decisions have been taken.
• There is an inherent public interest in transparency that always carries some weight.
• Embarrassment, political sensitivity, or administrative inconvenience are never valid public interest arguments for withholding.

How to make your argument#

When challenging a refusal, your public interest argument should be:

1. Specific to your request. Explain why disclosing this particular information serves the public interest, not just why transparency is generally good.
2. Focused on the common good. Frame your argument in terms of public benefit: accountability, informed debate, safety, scrutiny of spending, environmental protection.
3. Concrete. Link your argument to current events, ongoing debates, or specific concerns. “This information would help the public understand why [specific decision] was made” is stronger than “transparency is important.”
4. Aware of the exemption’s purpose. Acknowledge what interest the exemption protects, and explain why disclosure is still justified despite that interest.

You do not need to be a lawyer. The Commissioner regularly finds in favour of requesters who make clear, common-sense arguments about why the information matters to the public.

Arguments that work in practice#

The Commissioner’s decisions show consistent themes. These are the arguments that most often tip the balance towards disclosure.

Public money#

Where public money is involved, the Commissioner consistently finds a strong interest in disclosure. This is sometimes called “following the public pound.” If your request relates to how money was spent, what a contract costs, or whether a financial decision represented value for money, say so clearly. This argument is especially effective against commercial confidentiality exemptions (section 33), but carries weight across all qualified exemptions.

Accountability for decisions#

The public has a right to understand how and why decisions were made, especially decisions that affect people’s lives. This argument is strongest where a decision was controversial, affected many people, or had significant consequences. The Commissioner has found this decisive in cases involving government policy (section 29), the conduct of public affairs (section 30), and internal communications under the EIRs.

Informing public debate#

If the information relates to an issue being debated publicly, whether in the media, in parliament, or in communities, the Commissioner recognises that people need information to participate meaningfully in that debate. You don’t need to show the debate is settled or that the information would change minds. You just need to show it would contribute to informed discussion.

Environmental protection#

Under the EIRs, there is an especially strong presumption in favour of disclosure. Arguments about environmental harm, public safety, or the right to participate in environmental decisions carry significant weight. The Aarhus Convention, which underpins the EIRs, specifically recognises that access to environmental information is a fundamental right.

Time has passed#

Information that was once sensitive often loses its sensitivity. If the decision has been made, the contract signed, or the policy announced, the case for keeping the background information secret is much weaker. The Commissioner regularly finds this decisive, particularly against claims of harm to policy development (section 29) and the conduct of public affairs (section 30).

The authority’s arguments were vague#

Authorities often claim that disclosure would cause harm but fail to explain specifically how. The Commissioner frequently finds against authorities whose arguments are generic rather than tied to the actual information requested. If the refusal notice doesn’t explain the specific harm that disclosure would cause, point that out. Phrases like “could prejudice” or “might inhibit” without further explanation are often not enough.

Trust and confidence#

Secrecy can itself undermine public trust, even where the underlying decisions were sound. The Commissioner has recognised that openness helps maintain confidence in public institutions, and that a refusal to disclose can do more reputational damage than the information itself.

What doesn’t carry weight#

Not every argument helps your case. The Commissioner has been clear that:

• Personal interest is not the same as public interest. The test is about the common good, not why the information matters to you personally.
• “Transparency is important” on its own is too vague. You need to explain why disclosure of this specific information would serve the public interest.
• Accusations of secrecy without engaging with the exemption the authority relied on are unlikely to persuade. Address their reasoning, then explain why disclosure is still justified.
• Concerns about misuse don’t help the authority either. FOI is disclosure to the world. The authority can’t refuse because it thinks the requester might misunderstand or misuse the information. If the authority has raised this, point out that the Commissioner consistently rejects it.

Arguments for each exemption#

Each exemption page in the challenge tool sets out the public interest arguments that appear in practice — what has supported disclosure, what authorities typically argue, and the factors that have tipped the balance.