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PUBLICATION SCHEME Section 5 Exemptions and confidentiality We may not be able to provide information where it falls under one of the categories of exemptions under the Freedom of Information ( Scotland) Act 2002. Where we refuse to give out information, we will say why we are withholding it. If you wish to complain about us withholding information from you, please read Section 10, Publication Scheme - feedback, review and complaints.
Exemptions under the Freedom of Information ( Scotland) Act 2002 Sometimes, we will withhold information because it is exempt under this Act. The FOI Act provides 17 categories of exempt information under two types of exemption: absolute and non-absolute. If an absolute exemption applies, we will not have to release the information. Examples of areas covered by absolute exemptions are national security, confidentiality, where disclosure of the information is prohibited under an enactment, or where the information is otherwise accessible, for example if contained in the Publication Scheme. Examples of areas covered by non-absolute exemptions are commercial interests, audit functions and the formulation or development of government policy. If a non-absolute exemption applies, we still have to consider whether to release the information in view of the public interest; the exemption applies only if the public interest in maintaining the exemption outweighs that in disclosing the information. The FOI Act sets out one exemption category where the law forbids disclosure. People entrust us with sensitive personal information and details about cases. Our governing legislation therefore says we may not pass on information provided to us without the consent of the person who gave it to us, with some limited exceptions. A Board Member or employee who passed on information in breach of this section could be guilty of a criminal offence. Where the law forbids us to pass on information, the Freedom of Information ( Scotland) Act disclosure rules do not apply. We are getting further legal advice about this. Once we have this advice, we will explain on our website how we balance what we have to pass on under the new Freedom of Information Act and what we have to keep confidential under the legal aid legislation. Prohibited by legal professional privilege Some solicitors employed by the Board directly provide legal services to clients. These are solicitors working in the Public Defence Solicitors' Office (PDSO) and the Part V pilots. These solicitors are bound by the rules the legal profession, including the rules of legal professional privilege. See section J of this document for further information about the PDSO and the Part V pilots. We may also withhold information that is personal information under the Data Protection Act 1998. The Data Protection Act 1998 aims to secure individuals’ rights to privacy by protecting information that is held about them. Any authority that handles personal data, such as the Board, must comply with the data protection principles which control how they handle such data. These include, among others, the principle that personal data should be fairly and lawfully processed. Individuals have the right to ask for a description of the personal data held about them (this is known as a subject access request) and to get a copy of the information. If you wish to make a subject access request (in other words you want some details about the personal data we hold about on you), you should write to our Data Protection Officer, whose details we give below. Please supply your full name and contact details, and be as specific as possible about the personal data that you seek. We also publish a leaflet giving more details about getting information - read it now.
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