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Consultation with Third Parties
51. Scottish public authorities must always remember that they will be obliged to disclose information in response to a request unless the duty under regulation 5 is disapplied by regulation 11(1) (personal information) or unless an exception provided for under regulation 10 applies in relation to any particular information.
52. All of the exceptions in regulation 10 are subject to the public interest test. Moreover, lack of consent of a third party does not necessarily preclude disclosure under EISRs. If the public interest in making information available outweighs the public interest in withholding it, the information must be made available.
53. A Scottish public authority may consider that consultation is not appropriate where the cost of consulting with third parties would be disproportionate (for example, because many third parties are involved) or where there has been earlier consultation on the status and sensitivity of the information. In this context, 'third party' is a person or body affected by the information that is subject of the consultation. In such cases, the authority should consider what is the most reasonable course of action for it to take in light of the requirements of the EISRs, the potential effects of disclosure and the public interest.
54. Where the consent of a number of third parties may be relevant and those parties have a representative organisation that can express views on behalf of those parties, the Scottish public authority may, if it considers consultation appropriate, consider that it would be sufficient to consult that representative organisation. If there is no representative organisation, the authority may consider that it would be sufficient to consult a representative sample of the third parties in question.
55. The fact that the third party has not responded to consultation does not relieve the Scottish public authority of its duty to make information available under the EISRs, or its duty to reply within the time specified in the EISRs.
56. In all cases, it is for the Scottish public authority that received the request, not the third party (or representative of the third party), to weigh the public interest and determine whether or not information should be disclosed under the EISRs. A refusal by a third party to consent to disclosure does not, in itself, mean information should be withheld. In each case the public interest must be balanced. If the public interest in making the information available outweighs the public interest in withholding it, the information should be disclosed.
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