Key Issue 2
Key Issue 2
Where is the Harm? – Applying Contents-based Exemptions and Exceptions
This chapter provides an overview of freedom of information as it is practiced in Scotland, with particular emphasis on the application of contents-based exemptions and exceptions. Many of the provisions in the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information Regulations (EIRs) which allow information to be withheld require authorities to demonstrate not only that the consequences of information being released into the public domain would be harmful, but that the nature and extent of the harm would be substantial. The question ‘Where is the harm in disclosure?’ has been at the core of many decisions. This chapter considers contents-based FOISA exemptions that apply only where disclosure ‘would or would be likely to prejudice substantially’. It also discusses the ‘harm’ test and the degree of harm that must be weighed against the likelihood of its occurrence, along with harm-based exemption in relation to ‘prejudice to the effective conduct of public affairs’.
Keywords: freedom of information, Scotland, contents-based exemptions, Freedom of Information (Scotland) Act 2002, Environmental Information Regulations, disclosure, harm test, prejudice, public affairs
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