As PhD theses contain information which is held by the institution, in general, they will be subject to FOI requests as with any other information held. In order for the information to be withheld, one of the exemptions must apply. Certainly, the mere fact of there being an embargo does not, in itself, amount to an exemption under the Freedom of Information (Scotland) Act 2002.
There are two main possibilities:
S.33 - Commercially sensitive information
If the thesis contains commercially sensitive information, then s.33 FOISA 2002 might apply. This states that where the information constitutes a trade secret (s.33(1)(a))or its disclosure under this Act would, or would be likely to, prejudice substantially the commercial interests of any person (s.33(1)(b)). The Scottish Information provides guidance on what amounts to a trade secret and a commercial interest in his guidance paper at http://www.itspublicknowledge.info/Law/FOISA-EIRsGuidance/section33/Section33.asp.
We would suggest that a reasonably firm argument as to the research's commercial value would have to be made in order for this exemption to apply. However, where release of the information would preclude a patent application, or where there is a clear realisable commercial value in the information, the exemption could apply. Consideration would have to be given first, as to whether any public interest considerations would still point in favour of release, and second, as to whether the whole thesis benefited from the exemption, or merely parts of the thesis.
S.27(2) - Research programme information
The second possibility is the use of s.27(2)(b) FOISA 2002, which states:
(2) information obtained in the course of, or derived from, a programme of research is exempt information if -
(b) disclosure of the information before the date of publication would, or would be likely to, prejudice substantially -
(i) the programme; [or]
(ii) the interests of any individual participating in the programme;
It could be argued that the date on which the embargo ends is the publication date for the purposes of s.27. There has to be a certain date, and there needs to be publication (making available to the public). Availability in a public library (perhaps one to which the public have access) may be sufficient, and it could be argued that the fact the thesis is then available through inter-library loan makes it a 'publication' at the end of the embargo.
As to whether a PhD can be considered a programme of research, the Scottish Information Commissioner states of the Parliamentary Committee: The comment was also made that a programme of research includes a one-off piece of finite research, which implies that authorities claiming this exemption will be required to make clear the point at which the research would be considered complete. This exemption is not restricted to any particular type of research or institution and may cover research relating to social issues, the arts and humanities, as well as science and technology.
In this case, the thesis may be exempt if the PhD candidate can show that disclosure would be of substantial prejudice either to the ongoing research programme (if the PhD was a part of a bigger research programme) or to the interests of any individual participating in the programme. This last possibility is ambiguous - it could refer only to the 'subjects' of the research programme, or to all those involved in the research programme (including the PhD student). The Scottish Information Commissioner's guidance points to the wider meaning, stating Section 27(2) of the Act now exempts information that forms part of a research project, if releasing the information would substantially prejudice the programme of research or the interests of anyone involved in commissioning it or carrying it out.
Other Exemptions
As with any other information held by an institution, if there is confidential information which meets the somewhat restricted tests in s.36 FOISA, or personal information meeting the tests in s.38 FOISA, this will be exempt information.
Consequences
It is suggested that the request of an embargo by a student will not in itself preclude disclosure under the Act. Institutions may wish to ask students to specify why an embargo is requested, and for the student to state whether the reason amounts to commercial sensitivity under s.33, substantial prejudice in a research programme under s.27, confidential information under s.36, or personal data under s.38. Upon a request for information, the institution will nevertheless need to review whether the information meets one of the exemptions, and whether parts of the thesis may nonetheless be disclosed.