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This chapter reprints the full text of the Freedom of Information (Scotland) Act 2002, which was passed by the Scottish Parliament on 24 April 2002 and received Royal Assent on 28 May 2002. The Act includes provisions relating to access to information held by Scotland’s public authorities, exempt information (such as those concerning national security and defence, international relations, commercial interests and the economy, law enforcement, confidentiality, court records, and personal information), general functions of the Scottish Information Commissioner, enforcement, historical records, codes of practice, and miscellaneous and supplemental topics.

This chapter assesses the state of freedom of information (FOI) in Scotland since the passage of FOI laws, with the goal of taking stock, considering the country’s experience, reflecting on how far it has come compared with others, and anticipating the challenges that lie ahead. It first compares FOI in Scotland with that in the rest of the UK in terms of the ‘harm’ test, the time limit for responding to a request for information, and public authorities’ response to a requirement for review. It also compares the Freedom of Information (Scotland) Act 2002 (FOISA) with the UK’s Freedom of Information Act, the ministerial veto on disclosure and moves to curb the use of FOI rights in the UK, and proposed amendments to FOISA. Finally, the chapter considers FOISA within the context of international norms and principles, along with international attitudes to FOI.

This chapter provides an overview of freedom of information as it is practiced in Scotland, with particular emphasis on access to environmental information. Before the Freedom of Information (Scotland) Act 2002 (FOISA) was enacted, people already had certain statutory entitlements to environmental information. Comprehensive rights were delivered by the Environmental Information Regulations (EIRs) first introduced in 1992 and amended in 1998 which gave the public the right to ask for information which ‘relates to the environment’. Access to environmental regime advanced still further when the UK signed the Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters (the Aarhus Convention) in 1998. There are three ‘pillars’ which form the key principles behind the Aarhus Convention: the rights of access to information, public participation in decision-making, and access to justice in environmental matters. In Scotland, the Environmental Information (Scotland) Regulations 2004 give the public rights of access to environmental information held by public authorities. All of the exceptions under the EIRs are qualified by being subject to a ‘public interest’ test.

This chapter provides an overview of freedom of information (FOI) as it is practiced in Scotland, with particular emphasis on the issue of charging for information being requested. In Scotland, FOI laws and regulations which mandate up-front administrative fees or prohibitive charges for information can deter requests or exclude those with no capacity to pay. The fee-charging structure under the Freedom of Information (Scotland) Act 2002 (FOISA) is strongly regulated and reasonably generous to the applicant. This chapter considers the approach used to charge for environmental information under the Environmental Information Regulations (EIRs). It also discusses issues such as whether public authorities are entitled to charge, whether an authority has informed the public of its charging regime, or whether the charge is reasonable or excessive. Finally, it assesses the future of charging under FOISA, paying special attention to ‘deterrence’ charging, the likelihood that the cost of responding to a request for information would breach the upper limit, and the capacity to aggregate requests.

This chapter focuses on the publication of information by public authorities in Scotland as a statutory obligation under the Freedom of Information (Scotland) Act 2002 (FOISA). FOISA requires each Scottissh authority to publish information in accordance with a publication scheme that it must adopt and maintain and has to be approved by the Scottish Information Commissioner. Authorities are free to publish as they see fit, tailored to their own circumstances, in recognition of their varying size and public-facing functions. Whatever they choose to do, the law requires that publication schemes must specify: classes of information which the authority publishes or intends to publish; the manner in which information of each class is, or is intended to be, published; and whether the published information is, or is intended to be, available to the public free of charge or on payment. In 2010, the Commissioner proposed a significant change in approach by introducing, among others, a single Model Publication Scheme, a generic set of classes of information, a standard charging policy for published information, a notification procedure, and a guide to information.

This chapter provides an overview of freedom of information as it is practiced in Scotland, with particular emphasis on issues concerning third-party data. One of the most common and contentious disputes under the Freedom of Information (Scotland) Act 2002 (FOISA) has to do with third-party data and whether the exemption at s 38(1)(b) applies, an issue that pits the right to information against the right to privacy. The task is to reconcile the legal imperative to keep personal information safe and to prevent it being misused by those who have collected it. The courts have made it clear that the general presumption in favour of disclosure created by FOISA does not apply to personal data. Where disclosure of information would contravene the data protection principles, the exemption in FOISA is absolute, and the authority is not required to go on to consider where the balance of the public interest lies in relation to the information. In practice, the key issues to consider are whether the requested information constitutes personal data and, if so, whether disclosure would contravene any of the data protection principles.

This chapter provides an overview of freedom of information as it is practiced in Scotland, with particular emphasis on the application of contents-based exemptions and exceptions. Many of the provisions in the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information Regulations (EIRs) which allow information to be withheld require authorities to demonstrate not only that the consequences of information being released into the public domain would be harmful, but that the nature and extent of the harm would be substantial. The question ‘Where is the harm in disclosure?’ has been at the core of many decisions. This chapter considers contents-based FOISA exemptions that apply only where disclosure ‘would or would be likely to prejudice substantially’. It also discusses the ‘harm’ test and the degree of harm that must be weighed against the likelihood of its occurrence, along with harm-based exemption in relation to ‘prejudice to the effective conduct of public affairs’.

This chapter provides an overview of freedom of information as it is practiced in Scotland, with particular emphasis on issues concerning the identity of the individual requesting for information. In Scotland, a request for information simply has to state the name of the applicant and an address for correspondence. Such an ‘applicant and purpose blind’ approach aims to prevent authorities from providing information to some individuals or organisations but denying it to others because of who they are or the presumed motive for their request. However, there are circumstances where the identity of the applicant or the purpose of their request is deemed to be relevant. Indeed, there are a number of provisions in the Freedom of Information (Scotland) Act 2002 (FOISA) for which the identity of the applicant is relevant. Leaving aside personal information, in practice what matters most when determining what information should be provided is not the identity of the applicant but issues of whether information is held; how costly it would be to comply with the request; whether exemptions apply; and the public interest in disclosure.

This chapter provides an overview of how the Scottish Information Commissioner conducts investigations to determine whether the country’s public authorities have dealt with requests for information in accordance with the freedom of information laws. The investigation is initiated when a person who is dissatisfied with a response (or lack of response) from a public authority to a request makes an application to the Commissioner for a decision (also known as ‘appeals’). On rare occasions a third party may be contacted regarding a case which involves them. The Commissioner may ‘endeavour to effect a settlement’ of a case under the Freedom of Information (Scotland) Act 2002 (FOISA). No decision is required if the application is withdrawn, settled, abandoned, and frivolous or vexatious. This chapter discusses the key considerations when validating an application and how the Commissioner manages cases and conducts technical investigations as well as full investigations, how he comes to a conclusion, how decisions are approved, what a decision notice should contain, and compliance with the notice.

This chapter provides an overview of freedom of information as it is practiced in Scotland, with particular emphasis on the approach which could properly be taken to the exemptions protecting the free and frank provision of advice and exchange of information at s 30(b)(i) and (ii) of the Freedom of Information (Scotland) Act 2002 (FOISA). At issue was whether contents-based exemptions could be claimed in respect of all advice given by officials, almost irrespective of content. The Scottish Information Commissioner took the view that a quasi-class-based approach to a contents-based exemption was contrary to statute. The key decision which brought this issue to a head was Mr William Alexander and the Scottish Executive. This chapter analyses the case-by-case approach to the ‘harm’ test used to determine whether the harm claimed by authorities regarding contents-based vs class-based exemptions stands up to scrutiny.

This chapter provides an overview of freedom of information as it is practiced in Scotland, with particular emphasis on the extent of special protection afforded to government information. There are a number of specific exemptions in the Freedom of Information (Scotland) Act 2002 (FOISA) which apply only to information held by or concerning the interests of the Scottish Administration. There are also provisions in FOISA which apply to other authorities but not to the Scottish Administration or which can be overridden by powers available only to Ministers. The privileged provision in FOISA which is most commonly used by Ministers is that concerning the formulation or development of government policy. Once it has been established that information is within the scope of the exemption, then the issue is whether it is in the public interest to disclose or withhold all or some of the information.

This chapter provides an overview of how the Scottish Information Commissioner evaluates the country’s public authorities in terms of dealing with complaints from applicants requesting for information. The Commissioner may assess whether a public authority is following good practice; if not, he may give it a practice recommendation. An authority that fails to comply with the provisions in the Freedom of Information (Scotland) Act 2002 (FOISA), such as not responding on time or failing to inform the applicant of the right of appeal, may be cited in the decision notice, even if the authority is not required to take any action in respect of that specific failure. In such cases, the Commissioner may conduct ‘technical investigations’ and require the authority to remedy the failing by complying with the request for information. The revised Code of Practice includes good practice guidance on both FOISA and the Environmental Information Regulations. This chapter discusses the Commissioner’s programme of practice assessments, or performance audits, of public authorities.