Commercial interests and the economy
Section 33 of the Freedom of Information (Scotland) Act 2002 (FOISA) contains four distinct exemptions. Information may be withheld if:
- it is a trade secret (section 33(1)(a));
- disclosure would (or would be likely to) prejudice substantially the commercial interests of any person or organisation (section 33(1)(b));
- disclosure would (or would be likely to) prejudice substantially the economic interests of the whole or part of the UK (section 33(2)(a)); or
- disclosure would (or would be likely to) prejudice substantially the financial interests of an administration in the UK (section 33(2)(b)).
All of the exemptions in section 33 are subject to the public interest test. This means that, even if the exemption applies, the information must be disclosed unless the public interest in withholding it outweighs the public interest in disclosing the information.
The exemptions in section 33(1) don’t last forever. In general, they can’t be applied to information that is more than 15 years old. However, the exemptions in section 33(2) can be applied to information regardless of how old it is.
With all of the section 33 exemptions, a public authority can refuse to confirm or deny whether it holds the information, provided the authority is satisfied that revealing whether the information exists or is held would be contrary to the public interest (section 18 of FOISA).
Information which is commercially sensitive is often described as being “commercially confidential.” However, there is no single exemption in FOISA covering “commercial confidentiality”. FOISA draws a distinction between information where disclosure would have a detrimental effect on commercial interests, and information which is “confidential” under Scots law.
This briefing deals with FOISA’s “commercial interests” exemption only. A separate briefing considers the “confidentiality” exemption under section 36 of FOISA (see Appendix 1: Resources).
Section 33 exemption briefing
Briefing last updated May 2015.
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