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Access to Information : Exemptions Detail

We are committed to being open and transparent. Our publication scheme contains details relating to our environmental, corporate and regulatory functions. We will aim to ensure that the scheme includes as much information as possible that is in the public interest. In the event of a complaint, SEPA must be able to demonstrate to the Scottish Information Commissioner that releasing information would be against the public interest.

If you request information from us, we will try to provide it in accordance with the letter and the spirit of the law.

The law specifies circumstances under which we are entitled - or obliged - to withhold some information. This will include (but is not limited to):

  • anything that may substantially prejudice or harm law enforcement, legal proceedings or our regulatory or enforcement activities
  • anything that may substantially prejudice or harm commercial interests or confidentiality of any person or organisation, or
  • information disclosure that is otherwise prohibited by law (for example, we hold information that is personal data under the Data Protection Act 1998).

Where an exemption does apply to requested information, we will try to make as much of the non-exempt information available as possible.

If we do withhold information, we will explain why. If you are not satisfied with our explanation, you can ask for a review of the decision and/or refer the matter to the Scottish Information Commissioner.

The detail given below is a guide to what the law says. It is not legally definitive.



Freedom of Information

Specific exemptions

Excessive Cost of Compliance
  • An information request that would cost most than £600 to process.


Vexatious/Prepared Requests
  • An information request (or requests) that is ‘vexatious’. (This is not defined, but guidance says that it is not merely a nuisance or irritation.)
  • Substantially similar information requests substantially similar requests from the same requestor (even over a period of time).


Information Not Held
  • Information not held by SEPA.


Information Otherwise Accessible
  • Information that is already available and reasonably obtainable.


Prohibitions on Disclosure
  • Information protected from disclosure because it is
    • prohibited by law
    • incompatible with a European Community obligation, or
    • would constitute (or be punishable as) contempt of court.


Information Intended for Future Publication
  • Information that will be published within 12 weeks of the request.
  • Information containing research which is intended to be published at a later date (need not be within 12 weeks) and the release of such research prior to its publication is likely to cause substantial prejudice.


Relations Within UK
  • Information that is likely to substantially prejudice relations between the executive administrations within the UK.


Government Policy/Ministerial Communications
  • Information that relates to the formulation or development of government policy or ministerial communications.


Prejudice to Effective Conduct of Public Affairs
  • Information that would

    • be likely to prejudice the maintenance of the convention of collective responsibility of the Scottish Ministers,
    • incompatible with a European Community obligation, or
    • otherwise likely to prejudice substantially the effective conduct of public affairs.


National Security & Defence
  • Information exempt for the purpose of safeguarding national security.
  • Information that would be likely to substantially prejudice the defence of UK/interests and any forces.


International Relations
  • Information that would be likely to substantially prejudice relations between the UK and other States, Organisations or Courts.


Commercial Interests/Economy
  • Information that constitutes a trade secret or would be likely to prejudice the commercial interests of any person/organisation or UK interest.


Investigations
  • Information held by SEPA, at any time, for the purposes of a criminal investigation.


Law Enforcement
  • Information that would be likely to substantially prejudice:
    • prevention/detection of crime
    • apprehension/prosecution of offenders, or
    • administration of justice.


Confidentiality
  • Information that may be legally privileged or could result in an actionable breach of confidence.


Court Records etc.
  • Information relating to court records/documents.


Personal Information
  • Information which concerns personal data.


Health, Safety & the Environment
  • Information that would be likely to endanger the physical/mental health of an individual.


Audit Function
  • Information which could substantially prejudice SEPA’s audit function or its review of its efficiency and effectiveness in discharging its function.


Communications with Her Majesty
  • Any communications with Her Majesty, the Royal Family and Royal Household.



Public Interest/Harm Test

In applying an exemption, SEPA needs to be able to show that the disclosure of information could cause harm of real, actual and significant substance.

Even if SEPA consider that substantial prejudice is likely, the public interest/harm test must still be applied.

Public interest does not mean “of interest to the public” but “in the interest of the public”.

Relevant questions to ask when deciding if an exemption applies, could include:

  • Would disclosure enhance scrutiny of decision making processes, so improvising accountability and participation?
  • Would disclosure contribute to the administration of justice or the enforcement of the law or prejudice the prevention/detection of crime or apprehension/prosecution of offenders?
  • Would disclosure affect the economics of the UK (whole or part)?
  • Would disclosure contribute to ensuring effective oversight of the expenditure of public funds and value for money?
  • Would disclosure keep the public adequately informed of any danger to public health/safety of the environment?
  • Would disclosure adversely affect the safeguarding of national security or international relations?
  • Would disclosure contribute to ensuring any regulatory body’s responsibilities are adequately discharged?
  • Would disclosure contribute to a debate on a matter of public interest?
  • Would disclosure prejudice an individual’s right of privacy?

Matters that should not be taken into account are:

  • Possible embarrassment of government/public officials.
  • Possible loss of confidence in government or other public body.
  • Seniority of persons involved in the matter.
  • Risk of requester misinterpreting information.

Environmental Information

Specific exemptions


Personal Data
  • Information which concerns personal data.


Information Not Held
  • Information not held by SEPA.


Unreasonable Requests
  • An information request which, despite SEPA’s attempts to provide advice and assistance, is “manifestly unreasonable”.


General Requests
  • An information request which, despite SEPA’s attempts to provide advice and assistance, is “formulated in too general a manner”.


Incomplete Data
  • Information which is incomplete or unfinished.


Internal Communications
  • An information request that can only be answered by making available SEPA internal communications.


Economic Interests
  • Information that would adversely affect the confidentiality of commercial or industrial information where such confidentiality is protected by law to safeguard a legitimate economic interest.


Security, Defence & Relations
  • Information that would adversely affect international relations, defence, national security or public safety.


Intellectual Property Rights
  • Information that would adversely affect intellectual property rights.


Intellectual Property Rights
  • Information that would adversely affect intellectual property rights.


Personal Interests
  • Information that would adversely affect the interests of the person who provided that information, where that person:
    • was not under, and could not have been under, any legal obligation to supply it to SEPA;
    • did not supply it in circumstances with a view to SEPA making it available; or
    • has not consented to its disclosure.


Environmental Interests
  • Any information that would adversely affect the protection of the environment to which the information relates.


Intellectual Property Rights
  • Information that would adversely affect the confidentiality of the proceedings of one or more Scottish public authorities where such confidentiality is provided in law.



Notes

Emissions data

SEPA may not refuse to disclose any information, even if some of the exemptions above apply.


Separating information

Some documents may contain exempt information along with non-exempt information. If SEPA is asked for the non-exempt information, and it is reasonably possible to separate them, then SEPA must do that.


Public Interest/Harm Test

If SEPA refuses a request, it must be able to show that applying an exemption is more in the public interest than releasing it. There is also a presumption that information wil be disclosed.
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