Key Issue 1
Key Issue 1
Not a Class Apart – Why a Class-based Approach Cannot be Taken to Contents-based Exemptions
This chapter provides an overview of freedom of information as it is practiced in Scotland, with particular emphasis on the approach which could properly be taken to the exemptions protecting the free and frank provision of advice and exchange of information at s 30(b)(i) and (ii) of the Freedom of Information (Scotland) Act 2002 (FOISA). At issue was whether contents-based exemptions could be claimed in respect of all advice given by officials, almost irrespective of content. The Scottish Information Commissioner took the view that a quasi-class-based approach to a contents-based exemption was contrary to statute. The key decision which brought this issue to a head was Mr William Alexander and the Scottish Executive. This chapter analyses the case-by-case approach to the ‘harm’ test used to determine whether the harm claimed by authorities regarding contents-based vs class-based exemptions stands up to scrutiny.
Keywords: freedom of information, Scotland, exchange of information, Freedom of Information (Scotland) Act 2002, contents-based exemptions, Scottish Information Commissioner, Mr William Alexander and the Scottish Executive, harm test, class-based exemptions
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