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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.

Chapter 23 describes the regimes created by Scottish legislation to provide access to information held by Scottish public authorities. These regimes are those established by the Freedom of Information (Scotland) Act 2002 and also the Environmental Information (Scotland) Regulations 2004. The devolved system of government is then described. The chapter notes that the UK and Scottish Acts share a similar structure, but identifies the points of difference and covers the application of the UK regimes in Scotland. A detailed analysis of the provisions of the Scottish Act, Environmental Information (Scotland) Regulations, codes of practice, and the roles of the Scottish Information Commissoner and the Keeper of the Records of Scotland follows. Finally the chapter considers the enforcement of the Scottish Act and other methods of obtaining official information.

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 No decision is required if the application is withdrawn, settled, abandoned, and frivolous or vexatious.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 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 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 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.