Freedom of Information in Scotland
The Freedom of Information (Scotland) Act 2002 (FOISA) delivers access to information held by Public Authorities in Scotland who are governed by the devolved powers of the Scottish Executive. Thus thousands of public sector bodies in Scotland, including the Scottish Executive, its Ministers, Non-Departmental Public Bodies, the NHS and Local Government as well as schools, universities and general practitioners are now required to make information about what they do and how they do it more available than it has ever been before.
The main provisions of FOISA in relation to the functions of public authorities in Scotland are
to adopt and maintain a scheme which relates to the publication of information by the authority and to publish information in accordance with that scheme. These are known as Publication Schemes;
to communicate requested information to an applicant to comply with the legislative requirements governing Individual Rights of Access which came into effect on 1 January 2005.
Further important benchmarks established by FOISA
- Public authorities are required to respond to Individual Requests for Information within 20 working days.
- Rights of access apply retrospectively as well as to newly created information
- The legislation is 'applicant blind' in that anyone from anywhere can apply and the status or intention of the applicant is irrelevant.
- There is no requirement to mention the Act when asking for information
- Applications for information need to be in permanent form. This would usually refer to written requests including email but may include email and answerphone if he authority has the facility to preserve the message in these formats in perpetuity.
FOISA is similar to the Freedom of Information Act which covers the rest of the United Kingdom - while there are some differences, the effect of those differences on practitioners in the first instance has been marginal even in relation to the impact of the different Fees Regulations. However, there has been a considerable difference in the attitude and effect of the Enforcement Authority. Kevin Dunion - who is the Scottish Information Commissioner - actively promoted the legislation, has been a very vocal voice in support of openness and accountability and has dealt quite harshly with public authorities who are perceived as not promoting transparency.
As with the legislation in the remainder of the United Kingdom, FOISA introduces Exemptions which identify those circumstances in which information may be protected from disclosure. There are 17 such clauses in FOISA and many are subject to the public interest test. This means that even if the information requested falls within the scope of the exemption, a public authority can only refuse to provide the information in response to an individual request for that information if the public interest in doing so outweighs the public interest in disclosure.
FOISA also provided for a number of Codes of Practice similar to the Codes enacted under S.45 and S.46 of the Freedom of Information Act 2000.
Section 60 (Scottish Ministers' Code of Practice on the discharge of functions by Public Authorities under the Freedom of Information (Scotland) Act 2002.)
Section 61 (Freedom of Information (Scotland) Act 2002 Code of Practice on Records Management)
Section 62 - there will also be a Code under Section 62, which will cover much of the same ground as the Section 60 Code, but will refer to the new Environmental Information (Scotland) Regulations.
The Codes provide guidance to public authorities on good practice in exercising their functions under the Act. They are not in themselves enforceable, but the Scottish Information Commissioner can issue practice recommendations if he considers that a public authority is not complying with the terms of the Codes.
The Scottish Executive have lead the policy implementation of FOISA and can provide further advice and guidance.
Useful Links
Freedom of Information (Scotland) Act 2002
Section 60 Code of Practice
Section 61 Code of Practice
Environmental Information (Scotland) Regulations
Section 62 Code of Practice
The Scottish Information Commissioner
Recent Disclosures by the Scottish Executive
