Freedom of Information
Right of access to information
The Freedom of Information (Scotland) Act 2002 (the “Act”) gives individuals and organisations (whether or not they are based in Scotland) rights of access to recorded information held by Scottish public authorities.
Who are the Scottish public authorities?
A list of Scottish public authorities can be found in Schedule 1 to the Act. It includes:
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The list in the Act is not exhaustive, as other bodies can from time to time be designated as “Scottish public authorities” by separate order. A list of the Scottish public authorities can be found on the Scottish Information Commissioner’s website. The Act also applies to companies which are wholly-owned by Scottish public authorities. If you want information regarding a service provided by a public authority through a private company, the Scottish Information Commissioner advises that you should ask the public authority for this information.
The Freedom of Information Act 2000 gives broadly the same rights as the Act in respect of equivalent public bodies within England & Wales. It also applies to certain UK public authorities which work in Scotland. These include:
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The Information Commissioner’s Office, and not the Scottish Information Commissioner, is responsible for compliance with the Freedom of Information Act 2000.
(For the sake of completeness, please note that environmental information requests are dealt with under separate environmental information rules, called the Environmental Information (Scotland) Regulations.)
Publication scheme
Under the Act, each public authority must maintain a publication scheme. The publication scheme sets out details of information that the public authority routinely makes available to the public. It also specifies how this information can be accessed and provides contact information which may be of assistance in requesting any information not covered by the scheme. It is therefore worth checking the publication scheme for the organisation in question before making a request under the Act, in case the information you want has already been published.
How do I request information?
A request for information under the Act must:
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A request doesn’t have to:
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(although addressing these points in the request may assist the authority to process the request more easily.)
A request can be made to any person within the organisation and may request that information is provided in a specific way (e.g. by e-mail); the public authority is required to provide information in the requested format where it is reasonable to do so.
Response
The public authority is required to respond to the request for information as soon as possible, and must respond within 20 working days. Authorities do not have to comply with repeated or vexatious requests and may require the person requesting the information to supply further information to enable them to find the information requested.
Fee
Most requests should be dealt with free of charge and where a fee is charged it is likely to be small (usually no more than £50). If a fee is being charged, the authority must issue a ‘fees notice’ specifying the fee that it will charge and it does not have to comply with the request until the fee is paid.
Are public authorities obliged to disclose all information they hold?
No. Certain exemptions do exist and may enable public authorities to deny disclosure. These exemptions can be “absolute” or “non-absolute”:
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The exemptions are as follows:
Absolute exemptions:
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Non-absolute exemptions:
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Information:
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Disclosure of your information by public authorities
If you are an individual, the restrictions in the Data Protection Act 1998 apply to any disclosure of your personal data. If you provide goods or services to a public authority, you should bear in mind, however, that commercial information about that contract could be disclosed by the authority in response to a Freedom of Information request. If you fulfil a public function under a contract with a public authority, it is also possible that you could be designated as a “public authority” under the Act. At the time of writing, the Scottish Government is considering whether to extend the coverage of the Act to registered social landlords and contractors who provide public services that are a function of a public authority (for example, contractors providing prison services).
One method of trying to restrict the disclosure of information about contracts with public authorities is to place the public authority under a contractual obligation of confidentiality covering any confidential commercial information about the contract. However, public authorities will usually resist giving such obligations of confidentiality, particularly if the obligation is drafted to apply on a blanket basis to all information about the contract. An alternative is to include a clause in the contract which requires the public authority to notify and consult with you about any information requests that it receives about contract. This gives an opportunity to make representations which would not arise under the Act alone.
How can we help?
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For further information please contact Austin Flynn by emailing austin.flynn@morton-fraser.com or by calling 0131 247 1260 or contact Callum Murray by emailing callum.murray@morton-fraser.com or by calling 0131 247 1237
