Briefings and Guidance

FOISA

Under section 1(1) of FOISA, a person who requests information from a Scottish public authority which holds it is entitled to be given the information by the authority.

The definition of "information" in FOISA is wide. It means information recorded in any form. The information to be given to a requester is the information which the authority holds at the time the request is received (section 1(4) of FOISA).

However, some information an authority has in its possession may not be "held" by it for the purposes of FOISA. This applies to:

• information which the authority holds on behalf of another person (section 3(2)(a)(i) of FOISA) 
• information which was supplied by a Minister of the Crown or a department of the UK Government and is held in confidence by the authority (section 3(2)(a)(ii) of FOISA)

Information which another person holds on behalf of the authority is "held" by the authority (section 3(2)(b) of FOISA). Good records management is required in order to be sure what information is held within an authority.

Download the briefing here: Information not held - Section 17.

EIRs

Regulation 10(4)(a) of the EIRs allows public authorities to refuse to make environmental information available if they don't hold the information when the request is received.

"Held" is defined in regulation 2(2) of the EIRs. Environmental information is held by a Scottish public authority if it is:

• in its possession and it has been produced or received by that authority; or
• held by another person on that authority's behalf

Regulation 2(2) also makes it clear that information will not be "held" by a public authority for the purposes of the EIRs if it was supplied by a Minister of the Crown or department of the UK Government and is held in confidence.

In common with other exceptions in the EIRs, the exception is subject to the public interest test in regulation 10(1). It is not clear how the public interest test is intended to work where a public authority does not hold information, given that authorities are not required to create new information in order to respond to a request. This point is addressed in more detail below.

Good records management is required in order to be sure what information is held within an authority.

Regulation 10(4)(a) is, in many respects, similar to Section 17 of the Freedom of Information (Scotland) Act 2002 (FOISA) which makes it clear that a public authority does not have to comply with a request if it does not hold the information. The briefing also provides links to a wider range of decisions on whether information is - or isn't - held by a public authority.

Download the briefing here: EIR Briefing - Regulation 10(4)(a): Information not held.

FOISA

FOISA allows Scottish public authorities to charge for responding to information requests in certain circumstances.

Authorities do not have to charge fees. Many authorities choose not to charge for responding to requests even where they are entitled to do so.

There are strict rules on what can and cannot be charged for, how much an authority can charge and an upper limit (currently £600) beyond which an authority does not have to comply with a request. These rules are set out in the Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004 (the Fees Regulations).

A public authority can, with the agreement of the requester, respond to an information request which costs more than £600 to comply with. There are rules about how much the authority can charge a requester for doing this. These are set out in section 13 of FOISA and in the Freedom of Information (Fees for Disclosure under Section 13) (Scotland) Regulations 2004 (the Section 13 Regulations).

Download the briefing here: Briefing - Fees and Excessive Cost of Compliance.

EIRs

Regulation 8 of the EIRs allows public authorities to charge a "reasonable amount" for making environmental information available. Any fee charged must not exceed the costs to the authority of making that information available.

A charge can be made for providing a relatively small amount of information because there is no lower fees limit under the EIRs. This is different to FOISA. However, given that the charge must be reasonable and must not exceed the actual costs to the authority of providing the information, the charge for a small amount of information is likely to be low.

There is no upper fees limit under the EIRs. A public authority can, however, refuse to comply with a request if the request is manifestly unreasonable (regulation 10(4)(b)).

Download the briefing here: EIRs Guidance - Charging for environmental information.

FOISA

Under section 1(1) of FOISA, a person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.

This right is not absolute. In some cases, information is exempt from disclosure. The exemptions are contained in Part 2 of FOISA. Most of these exemptions are subject to the public interest test. These are known as "qualified exemptions".

Where a qualified exemption applies, the information must be disclosed unless the public interest in disclosing the information is outweighed by the public interest in maintaining the exemption. Where the competing public interests are evenly balanced, the information should be disclosed.

Exemptions which are not subject to the public interest test are known as "absolute exemptions". Where an absolute exemption applies, a public authority is entitled to withhold the information without going on to consider the public interest.

This guidance tells public authorities how to address the public interest test. It gives examples of the factors they should take into account when deciding where the public interest lies. Requesters may also find the guidance helpful when a public authority refuses to disclose information because it is subject to a qualified exemption under FOISA.

Download the briefing here: The Public Interest Test FOISA.

EIRs

Under regulation 5(1) of the EIRs, a Scottish public authority that holds environmental information must make it available when requested to do so.

This duty is not absolute. In some cases, information is excepted from disclosure, under regulations 10 and 11 of the EIRs. However, all of the exceptions in regulation 10 (and parts of regulation 11) are subject to a public interest test.

This means that, even if an exception applies, the public authority must still disclose the information unless the public interest in making the information available is outweighed by that in maintaining the exception.

This guidance gives advice to public authorities on how to address the public interest test. It gives examples of the factors they should take into account when deciding where the public interest lies. Requesters may also find the guidance helpful when a public authority refuses to disclose information under the EIRs.

Download the briefing here: The Public Interest Test - EIRs. 

Under section 14(1) of FOISA, Scottish public authorities do not have to comply with requests that are vexatious.

Under section 14(2) of FOISA, Scottish public authorities do not have to comply with requests that are repeated.

Although public authorities do not have to comply with vexatious or repeated requests, they cannot simply ignore the requests. In most cases, the authority must notify the requester that their request is being treated as vexatious or repeated.

This briefing also looks at the Commissioner's general approach to frivolous or vexatious applications. Under section 49(1) FOISA, the Commissioner is not required to reach a decision on an application which the Commissioner considers to be frivolous or vexatious.

The provisions in section 14 and 49(1) aim to protect the credibility and effectiveness of freedom of information laws. Most requesters exercise their rights to information responsibly, but there are rare occasions when this is not the case. These provisions provide a way of dealing with the few cases that:

• are unreasonable;
• would impose a significant burden on the financial and human resources of public authorities; or
• are deemed to be vexatious because of other impacts on the authority.

Public authorities should not use the provisions in section 14 lightly. They should consider all the relevant circumstances in order to reach a balanced conclusion as to whether a request is vexatious or repeated.

Requesters must not be unjustly denied the opportunity to make a genuine information request. Requests may be inconvenient, and meeting them may at times stretch an authority's resources, but these factors, on their own, are not sufficient grounds for an authority to deem a request vexatious or repeated.

Download the briefing here: Vexatious or repeated requests.

Regulation 10(4)(b) of the EIRs allows a Scottish public authority to refuse to disclose environmental information if the request is manifestly unreasonable.

This is very similar, but not identical, to the vexatious provision in section 14 of the Freedom of Information (Scotland) Act 2002 (FOISA). 

The exception in regulation 10(4)(b) is subject to the public interest test in regulation 10(1) of the EIRs. This means that, even if the exception applies, the information should still be disclosed if the public interest in making the information available is outweighed by the public interest in maintaining the exception.

As with all of the exceptions in the EIRs, the exception can be relied on regardless of the age of the information.

This exception aims to protect the credibility and effectiveness of the EIRs. Most requesters exercise their rights to information responsibly, but there are rare occasions when this is not the case. This exception provides a way of dealing with the few cases that are unreasonable, would impose a significant burden on the financial and human resources of public authorities or are otherwise manifestly unreasonable because of their impact on the authority.

Public authorities should not use this exception lightly. They should consider all the relevant circumstances in order to reach a balanced conclusion as to whether a request is manifestly unreasonable. Requesters must not be unjustly denied the opportunity to make a genuine information request. Requests may be inconvenient, and meeting them may at times stretch an authority's resources, but these factors are not on their own sufficient to deem a request manifestly unreasonable.

Download the briefing here: Regulation 10(4)(b): Manifestly unreasonable requests.

FOISA gives everyone the right to ask Scottish public authorities for the information they hold, subject to various provisions and exemptions.

It's important to note that the right applies to information, not to documents. This guidance looks at whether requests for copies of documents are valid requests under FOISA and tells public authorities how they should respond to this type of request.

Download the full briefing here: Does FOI law give a right to information or to copies of documents?

Under FOISA, an information request must contain the name of the person making the request (sometimes known as the "true applicant" or "true requester"). This means that FOISA requests cannot be made anonymously and pseudonyms (fake names) cannot be used.

It also means that, if someone is making a request on behalf of another person, the person on whose behalf it is being made must be identified in the request.

It's also important to note that the name - which could be a first name and surname, first initial and surname, or title and surname - must be included in the main text of the request. It's not enough, for example, for the name to be visible in an email address or even as the sender of an email.

The situation is slightly different under the EIRs. To find out more, read our briefing: Name of requester or applicant

FOISA states that requests must be:

• in writing (email, fax, etc.), or
• in another form which, by reason of its having some permanency, is capable of being used for subsequent reference (recording made on audio or video tape, etc.)

However, under the EIRs, a request for environmental information may be made in any form, including verbally.

Our briefing provides guidance to public authorities on responding to information requests which are left on voicemail or which are otherwise recorded during telephone calls.

Download the briefing: Are verbal requests valid?

FOISA specifies certain information that must be included in Scottish public authorities' responses to information requests and requests for review. There are also some additional points to be considered under the EIRs.

We have produced a quick reference guide, which should be read in conjunction with our other guidance on FOI law in Scotland and the Scottish Ministers' Section 60 Code of Practice.

We also have further guidance on the EIRs, including how to decide whether a request is for environmental information.

Download the briefing: Content of notices

It is a criminal offence for a public authority (or authority employee) to alter, deface, block, erase, destroy or conceal a record with the intention of preventing information being disclosed. 

For an offence to be committed:

• a (valid) information request must have been made for information in the record 
• the alteration, defacement, blocking, etc. must have taken place after the authority received the request 
• the alteration, defacement, blocking, etc. must have been done with the intention of preventing information being disclosed: this would have to be proved in the courts beyond reasonable doubt 
• the offence must have taken place less than three years ago

There are lots of reasons why an authority may lawfully refuse to disclose information. FOI law allows an authority to refuse to comply with a request if, for example:

• it does not hold the information;
• it would cost too much to comply with the request;
• the request is vexatious or repeated; or
• the information is exempt from disclosure.

(Where an authority acknowledges that it holds information, but refuses to disclose it, it is very unlikely that the refusal, in itself, will amount to an offence.)

In general, if you are unhappy with the way an authority responded to your request, you should ask the authority to review its response and then, if you're unhappy with the review, ask us to decide if the information should have been disclosed to you.

If you believe an offence has been committed, you will need to explain to us, in as much detail as possible, why you believe an offence has been committed.  If we conclude there is evidence that an offence may have been, we can refer the matter to Police Scotland. (You can also refer the matter direct to Police Scotland yourself.)

If we don't believe there is enough evidence to refer the matter to Police Scotland, we will advise you of the options open to you. 

If you make an allegation to the Commissioner and we are already dealing with an application from you, we are likely to need to stop work on the application until a decision has been made on the allegation. Otherwise, we risk prejudicing the criminal investigation. 

Download our Get FOI Right First Time infographic, designed to support organisations to get their FOI responses right first time, every time.