Scotland
Name of law: Freedom of Information (Scotland) Act 2002
First adopted: 2002
First adopted: 2002
Introduction
Colaborators
| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 2 | 6 |
| 2 | Scope | 25 | 30 |
| 3 | Requesting Procedures | 21 | 30 |
| 4 | Exceptions & Refusal | 13 | 30 |
| 5 | Appeals | 27 | 30 |
| 6 | Sanctions & Protections | 6 | 8 |
| 7 | Promotional Measures | 9 | 16 |
| ∑ = 103 | ∑ = 150 |
| Section | I | Description | Scoring instructions | Max score | Findings | Points | Article | Comments |
|---|---|---|---|---|---|---|---|---|
1. Right of Access |
1 | The legal framework (including jurisprudence) recognises a fundamental right of access to information. | Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information. | 2 | NO | 0 | Not mentioned | Scotland, like the rest of the United Kingdom, does not have a written constitution. To the extent that the Scotland Act 1998 could be considered to be quasi-constitutional, it does not refer to the right to information. |
1. Right of Access |
2 | The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions. | No=0, Partially=1, Yes=2 | 2 | YES | 2 | 1(1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority. | |
1. Right of Access |
3 | The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law. The legal framework emphasises the benefits of the right to information. | One point for each characteristic. | 2 | NO | 0 | Not mentioned | The Freedom of Information (Scotland) Act 2002 (Act) does not refer to the external the benefits of RTI or call for a broad interpretation of RTI. |
2. Scope |
4 | Everyone (including non-citizens and legal entities) has the right to file requests for information. | Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. | 2 | YES | 2 | Not mentioned | "Applicant" is not defined in the Act. However, according to a guide published by the Information Commissioner's Office (https://ico.org.uk/for-organisations/guide-to-freedom-of-information/what-is-the-foi-act/), any natural or legal person can make a request. |
2. Scope |
5 | The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it. | Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions. | 4 | YES | 4 | 73. In this Act, unless the context requires a different interpretation— “information” (subject to sections 50(9) and 64(2)) means information recorded in any form; 3(2) For the purposes of this Act but subject to subsection (4), information is held by an authority if it is held— (a) by the authority otherwise than— (i) on behalf of another person; or (ii) in confidence, having been supplied by a Minister of the Crown or bya department of the Government of the United Kingdom; or (b) by a person other than the authority, on behalf of the authority. | |
2. Scope |
6 | Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents). | Score 1 point for only documents, 1 point for information. | 2 | YES | 2 | 8(1)(c) Any reference in this Act to "requesting" information is a reference to making a request which - (c) describes the information requested. | Scotland does not distinguish between documents and information but you can make a request for either. |
2. Scope |
7 | The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and administration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above. | Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc). | 8 | Partially | 6 | 3(1) In this Act, "Scottish public authority" means -- (a) any body which, any other person who, or the holder of any office which -- (i) is listed in schedule 1; or (ii) is designated by order under section 5(1); or (b) a publicly-owned company, as defined by section 6. 4(1) The Scottish Ministers may by order amend schedule 1 by— (a) adding to that schedule a reference to— (i) any body which; or (ii) the holder of any office which, is not for the time being listed there and is either a part of the Scottish Administration or a Scottish public authority with mixed functions or no reserved functions; or (b) removing from that schedule an entry for the time being listed there. | Schedule 1 lists a broad range of public authoritties. Not clear if some private bodies which are controlled by public authorities are excluded but benefit of doubt given. However, points deducted because of power to remove public authorities. Power to add also suggests that not everything is currently covered. |
2. Scope |
8 | The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government | 4 | YES | 4 | Schedule 1, 1.The Scottish Ministers. 2. The Scottish Parliament. 3. The Scottish Parliamentary Corporate Body. | |
2. Scope |
9 | The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government | 4 | YES | 4 | Schedule 1, 18A. The Scottish Court Service, 62D. The Criminal Courts Rules Council, 68A. The Judicial Appointments Board for Scotland. | Seems pretty comprehensive. |
2. Scope |
10 | The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). | Score 1 point if some, 2 points if all | 2 | Partially | 1 | 3(1) In this Act, "Scottish public authority" means -- ... (b) a publicly-owned company, as defined by section 6. 6(1) A company is a "publicly-owned company" for the purposes of section 3(1)(b) if it is wholly owned -- (a) by the Scottish Ministers; or (b) by any other Scottish public authority listed in schedule 1, other than an authority so listed only in relation to information of a specified description. | Only wholly owned companies rather than companies which are controlled with less than full ownership. |
2. Scope |
11 | The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). | Score 1 point if some bodies, 2 points if all | 2 | YES | 2 | 3(1) In this Act, "Scottish public authority" means -- (a) any body which, any other person who, or the holder of any office which -- (i) is listed in schedule 1; or (ii) is designated by order under section 5(1); or (b) a publicly-owned company, as defined by section 6. See Schedule 1 Parts 2 and 7 for full list of bodies | This appears to be pretty comprehensive. |
2. Scope |
12 | The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. | 1 point for public functions, 1 point for public funding | 2 | NO | 0 | 5(1) The Scottish Ministers may by order designate as a Scottish public authority for the purposes of this Act any person mentioned in subsection (2) who -- (a) is neither for the time being listed in schedule 1 nor capable of being added to that schedule by order under section 4(1); and (b) is neither a public body nor the holder of any public office. 5(2) The persons are those who either -- (a) appear to the Scottish Ministers to exercise functions of a public nature; or (b) are providing, under a contract made with a Scottish public authority, any service whose provision is a function of that authority. | There is no right to information from bodies covered by either 5(2)(a) or (b), although the Scottish Ministers may designate such bodies as public authorities. Also, (b) does not cover all public funding, only that provided under a contract and which additionally is for a service that is a function of the funding authority. We note a positive trend towards extending coverage of the Act under 5(1) but this is not currently extensive enough to earn a point here. |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | YES | 2 | 8(1) Any reference in this Act to "requesting" information is a reference to making a request which -- (a) is in writing or in another form which, by reason of its having some permanency, is capable of being used for subsequent reference (as, for example, a recording made on audio or video tape); (b) states the name of the applicant and an address for correspondence; and (c) describes the information requested. | No requirement to provide reasons but no specific prohibition on it either, which is better practice. |
3. Requesting Procedures |
14 | Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery). | Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc. | 2 | Partially | 1 | 8(1) Any reference in this Act to "requesting" information is a reference to making a request which -- (a) is in writing or in another form which, by reason of its having some permanency, is capable of being used for subsequent reference (as, for example, a recording made on audio or video tape); (b) states the name of the applicant and an address for correspondence; and (c) describes the information requested. | You do need to provide your name, so one point deducted. While an address for correspondence is required, it does not need to be a residential address. The address can be "a postal or email address" (https://www.gov.scot/about/contact-information/how-to-request-information/). |
3. Requesting Procedures |
15 | There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law. | Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. | 2 | YES | 2 | 8(1) Any reference in this Act to "requesting" information is a reference to making a request which -- (a) is in writing or in another form which, by reason of its having some permanency, is capable of being used for subsequent reference (as, for example, a recording made on audio or video tape). 8(2) For the purposes of paragraph (a) of subsection (1) (and without prejudice to the generality of that paragraph), a request is to be treated as made in writing where the text of the request is -- (a) transmitted by electronic means; (b) received in legible form; and (c) capable of being used for subsequent reference. | The request may be made in both physical (s8(1)) and electronic (s8(2)) forms. The Scottish government also accepts requests via email, letters and voice calls (https://www.gov.scot/about/contact-information/how-to-request-information/). There is no official form for information requests. |
3. Requesting Procedures |
16 | Public officials are required to provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. | Score 1 point for help in formulation and 1 point for clarification procedures | 2 | YES | 2 | 15(1) A Scottish public authority must, so far as it is reasonable to expect it to do so, provide advice and assistance to a person who proposes to make, or has made, a request for information to it. Code of Practice on the Discharge of Functions by Scottish Public Authorities under the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004 Part 2, 4.1.1 It is good practice for authorities to provide guidance for the public which explains how to make a valid information request, and the procedure the authority will follow once a request has been received. Part 2, 4.1.2 Guidance for the public should include: *an address (including an email address where possible) to which applicants may direct their requests for information or ask for assistance; * where possible, the telephone number of someone who can provide advice and assistance; * procedures, and information about the authority's charging regine; * link to the Commissioner's guidance for requesters. Part 2, 5.1.1 Authorities have a duty to provide advice and assistance at all stages of a request. It can be given either before a request is made, or to clarify what information an applicant wants after a request has been made, whilst the authority is handling the request, or after it has responded. | Public authorities are under a duty to provide advice and assistance (s15(1)). The Code of Practice (https://www.gov.scot/binaries/content/documents/govscot/publications/advice-and-guidance/2016/12/foi-eir-section-60-code-of-practice/documents/foi-section-60-code-practice-pdf/foi-section-60-code-practice-pdf/govscot%3Adocument/FOI%2B-%2Bsection%2B60%2Bcode%2Bof%2Bpractice.pdf) also advises public authorities to issue guidance to the public (s4.1) in making a valid information request and to offer "advice and assistance at all stages of a request" (s5.1), including "to clarify what information an applicant wants after a request has been made." |
3. Requesting Procedures |
17 | Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled. | Score Yes=2 point, No=0 | 2 | Partially | 1 | Code of Practice on the Discharge of Functions by Scottish Public Authorities under the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004: 5.3.2: There will also be cases where requests are made by individuals who cannot be expected to express themselves with such precision and who need more support. Authorities should also have regard to their duties under the Equality Act 2010 in ensuring accessibility for all’ | The Code of Practice does reference the Equality Act but the reference is somewhat oblique, hence one point deducted. |
3. Requesting Procedures |
18 | Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working days. | Score 1 point for receipt, 1 point for max 5 working days | 2 | Partially | 1 | Code of Practice on the Discharge of Functions by Scottish Public Authorities under the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004 Part 2, 4.8.1 It is good practice to acknowledge receipt of the request, explaining who will be handling it and when a response will be provided. | Although the Code of Practice (https://www.gov.scot/binaries/content/documents/govscot/publications/advice-and-guidance/2016/12/foi-eir-section-60-code-of-practice/documents/foi-section-60-code-practice-pdf/foi-section-60-code-practice-pdf/govscot%3Adocument/FOI%2B-%2Bsection%2B60%2Bcode%2Bof%2Bpractice.pdf) mentions that it is "good practice to acknowledge receipt of the request, explaining who will be handling it and when a response will be provided," there is no hard requirement to do so or any timeframe for this. |
3. Requesting Procedures |
19 | Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held. | Score: 1 point for information not held, 1 for referrals or 2 for transfers | 2 | Partially | 1 | 17(1) Where -- (a) a Scottish public authority receives a request which would require it either (i) to comply with section 1(1); or (ii) to determine any question arising by virtue of paragraph (a) or (b) of section 2(1), if it held the information to which the request relates; but (b) the authority does not hold that information, it must, within the time allowed by or by virtue of section 10 for complying with the request, give the applicant notice in writing that it does not hold it. Code of Practice, para. 9.3.3: Where an authority does not hold the information but is aware that it is held by another public authority, it should in its refusal notice provide the applicant with contact details of the authority holding the information and suggest that the applicant makes a new information request to that authority. Where the two authorities are publicly perceived as linked, the differences between them should be explained to the applicant. | The Code of Practice creates a referral system. We note that the time limits under s. 17 of the Act are too long (same as to respond to a request whereas a rejection for not being held should be quicker). |
3. Requesting Procedures |
20 | Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record). | Score: 2 points for Yes, only 1 point if some limitations | 2 | Partially | 1 | 11(1) Where, in requesting information from a Scottish public authority, the applicant expresses a preference for receiving it by any one or more means mentioned in subsection (2), the authority must, so far as is reasonably practicable, give effect to that preference. (2) The means are— (a) the provision to the applicant, in permanent form or in another form acceptable to the applicant, of a copy of the information; (b) such provision to the applicant of a digest or summary of the information; and (c) the provision to the applicant of a reasonable opportunity to inspect a record containing the information. | 1 point given because this duty to provide information only applies in limited circumstances (under s11(2)) and the Act provides a vague definition of what is "reasonably practicable" (i.e., based on "all the circumstances") (s11(3)). |
3. Requesting Procedures |
21 | Public authorities are required to respond to requests as soon as possible. | Score: No=0, Yes=2 points | 2 | YES | 2 | 10(1) Subject to subsections (2) and (3), a Scottish public authority receiving a request which requires it to comply with section 1(1) must comply promptly Code of Practice on the Discharge of Functions by Scottish Public Authorities under the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004 Part 1, 2. Requests for information must be answered as soon as possible and within 20 working days. If a request is for environmental information and the information held is both complex and voluminous, the authority may extend this period up to a maximum of 40 working days | |
3. Requesting Procedures |
22 | There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication). | Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less. | 2 | Partially | 1 | 10(1) Subject to subsections (2) and (3), a Scottish public authority receiving a request which requires it to comply with section 1(1) must comply promptly; and in any event by not later than the twentieth working day after -- (a) in a case other than that mentioned in paragraph (b), the receipt by the authority of the request; or (b) in a case where section 1(3) applies, the receipt by it of the further information. | 20 working days |
3. Requesting Procedures |
23 | There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension. | - | 2 | YES | 2 | 10(4) The Scottish Ministers may by regulations provide that subsections (1) and (3) are to have effect as if references to the twentieth (or as the case may be the thirtieth) working day were references to such other working day, not later than the sixtieth, after receipt by the authority of the request as is specified in, or determined in accordance with, the regulations. | The Act allows Scottish Ministers, by regulations, to extend the time for compliance up to 60 days. This has been used only once, during COVID. Otherwise, the Act does not provide for extensions. |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | YES | 2 | 9(1) A Scottish public authority receiving a request which requires it to comply with section 1(1) may, within the time allowed by section 10 for so complying, give the applicant a notice in writing (in this Act referred to as a "fees notice") stating that a fee of an amount specified in the notice is to be charged by the authority for so complying. | It is free to make a request. |
3. Requesting Procedures |
25 | There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and that a certain initial number of pages (at least 20) are provided for free. | Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional | 2 | YES | 1 | 9(1) A Scottish public authority receiving a request which requires it to comply with section 1(1) may, within the time allowed by section 10 for so complying, give the applicant a notice in writing (in this Act referred to as a "fees notice") stating that a fee of an amount specified in the notice is to be charged by the authority for so complying. 12(1) Section 1(1) does not oblige a Scottish public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed such amount as may be prescribed in regulations made by the Scottish Ministers; and different amounts may be so prescribed in relation to different cases. | Charging for staff time is envisaged under the Act and the Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004 and there is no requirement to process requests which are too expensive. However, the Scottish Information Commissioner notes that "[i]f the cost to the authority is more than £100 but £600 or less, the authority can charge you 10% of the cost of providing the information, but the first £100 is always free." In practice, fees are rarely charged but the Rating focuses on the legal standards. |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | NO | 0 | Not mentioned | No fee waivers are mentioned in the Act nor Code of Practice. |
3. Requesting Procedures |
27 | There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. | Score: No=0, Yes=2 points | 2 | YES | 2 | See Re-use of Public Sector Information Regulations 2015 (RPSI) (https://www.legislation.gov.uk/uksi/2015/1415) | The law is silent on re-use but there is a specific regulation on this. |
4. Exceptions & Refusal |
28 | The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict. | Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. | 4 | NO | 0 | 26 Information is exempt if its disclosure by a Scottish public authority (otherwise than under this Act) -- (a) is prohibited by or under an enactment; (b) is incompatible with an EU obligation; or (c) would constitute, or be punishable as, a contempt of court. | There is a blanket ban on information that has been legislated to be kept confidential. |
4. Exceptions & Refusal |
29 | The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. | Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed | 10 | Partially | 4 | See Part 2 of the Act, ss. 25-41. | Exceptions which are either illegitimate or unduly broad: 25 - otherwise accessible (even if only because required by law and regardless of fees); 27(2) research (too broad as it covers any interests of those participating); 29 - advice (very broadly defined and also not harm tested); 32 - international relations (too broad as it covers any prejudice to "interests of the UK"); 33(2) - economy (too broad as covers economic and financial interests of UK); 38 - personal information (defined to include all personal data, which is too broad, although no point deducted); 41 - communications with Royal Family (not legitimate and no harm test as well) |
4. Exceptions & Refusal |
30 | A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. | Score 4 points and then deduct 1 point for each exception which is not subject to the harm test | 4 | Partially | 1 | See Part 2 of the Act, ss. 25-41. | Exceptions which are not harm tested: 31 - National security (because of power to issue certificates); 34 - investigations; 37 - court records |
4. Exceptions & Refusal |
31 | There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity. | Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory. | 4 | Partially | 1 | 2(1) To information which is exempt information by virtue of any provision of Part 2, section 1 applies only to the extent that -- (a) the provision does not confer absolute exemption; and (b) in all the circumstances of the case, the public interest in disclosing the information is not outweighed by that in maintaining the exemption. 2(2) For the purposes of paragraph (a) of subsection (1), the following provisions of Part 2 (and no others) are to be regarded as conferring absolute exemption -- (a) section 25; (b) section 26; (c) section 36(2); (d) section 37; and (e) in subsection (1) of section 38-- (i) paragraphs (a), (c) and (d); and (ii) paragraph (b) where the first condition referred to in that paragraph is satisfied. | This is a proper (mandatory) public interest override. However, there are broad exclusions from its application including, under s. 26, any information rendered secret by any other law. |
4. Exceptions & Refusal |
32 | Information must be released as soon as an exception ceases to apply (for example, after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old. | Score 1 point for each | 2 | Partially | 1 | 58(1) Information contained in a historical record cannot be exempt information by virtue of any of sections 28 to 30, 33(1), 36, 37, 40 and 41(a). 58(2) Information cannot be exempt information by virtue of -- (a) section 41(b) after the end of that period of sixty years; or (b) section 34(2)(b), 35 or 38(1)(c) or (d) after the end of that period of one hundred years, which commences at the beginning of the calendar year following that in which the record containing the information is created. | Only applies to some exceptions and the period is unduly long for some other exceptions. |
4. Exceptions & Refusal |
33 | Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information. | Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals. | 2 | YES | 2 | Code of Practice on the Discharge of Functions by Scottish Public Authorities under the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004 Part 2, 7.2.1 There is no definitive list of circumstances in which consultation would be appropriate, and much depends on the facts and circumstances of the particular case. Consultation is likely to be appropriate where a third party's interest in the handling of a request will be significant, for example because they are the primary focus of the information (e.g. as a business or an individual) or because disclosure would significantly affect them. Part 2, 7.2.2 Consultation is recommended in all cases where: * the views of the third party may help the authority to determine whether an exemption or exception applies to the information requested. For example, if disclosure would cause substantial prejudice to that third party's interests, or constitute a breach of confidentiality, the authority would need evidence to support that view; or * the views of the third party may help the authority determine where the public interest lies. Part 2, 7.4.1 Meeting the statutory deadline for responding to a request must always take priority over consulting third parties. This will often mean that an authority can only allow third parties a short time to respond; this time should not be extended if that will prevent authorities responding on time. If the authority does not identify the need to consult third parties until near the deadline, instead of consulting, they should just notify third parties at the same time as they respond to the applicant. | The Code of Practice allows authorities to consult with third parties (s7) and lists situations where consultation is likely to be appropriate (s7(2)). The Code also states that "[m]eeting the statutory deadline for responding to a request must always take priority over consulting third parties." (s7.4.1). Would be better if this were mandatory. |
4. Exceptions & Refusal |
34 | There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. | Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted | 2 | YES | 2 | Not mentioned | This is not mentioned in the Act. However, because the regime applies to information, the exceptions are automatically limited in scope to information which is exempt, such that a rule on severability is not needed. |
4. Exceptions & Refusal |
35 | When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures. | Score Y/N: 1 point for a and 1 point for b | 2 | YES | 2 | 16(1) Subject to section 18, a Scottish public authority which, in relation to a request for information which it holds, to any extent claims that, by virtue of any provision of Part 2, the information is exempt information must, within the time allowed by or by virtue of section 10 for complying with the request, give the applicant a notice in writing (in this Act referred to as a "refusal notice") which -- (a) discloses that it holds the information; (b) states that it so claims; (c) specifies the exemption in question; and (d) states (if not otherwise apparent) why the exemption applies. 19. A notice under section 9(1) or 16(1), (4) or (5) (including a refusal notice given by virtue of section 18(1)) or 17(1) must contain particulars— (a) of the procedure provided by the authority for dealing with complaints about the handling by it of requests for information; and (b) about the rights of application to the authority and the Commissioner conferred by sections 20(1) and 47(1). | |
5. Appeals |
36 | The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less). | Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals. | 2 | YES | 2 | 20(1) An applicant who is dissatisfied with the way in which a Scottish public authority has dealt with a request for information made under this Part of this Act may require the authority to review its actions and decisions in relation to that request. 20(3) A requirement for review must -- (a) be in writing or in another form which, by reason of its having some permanency is capable of being used for subsequent reference (as, for example, a recording made on audio or video tape); (b) state the name of the applicant and an address for correspondence; and (c) specify--(i) the request for information to which the requirement for review relates; and (ii) the matter which gives rise to the applicant's dissatisfaction mentioned in subsection (1). 21(1) Subject to subsection (2), a Scottish public authority receiving a requirement for review must (unless that requirement is withdrawn or is as mentioned in subsection (8)) comply promptly; and in any event by not later than the twentieth working day after receipt by it of the requirement. | |
5. Appeals |
37 | Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). | 1 for partial, 2 for yes | 2 | YES | 2 | 47(1) A person who is dissatisfied with--(a) a notice given under section 21(5) or (9); or (b) the failure of a Scottish public authority to which a requirement for review was made to give such a notice, may make application to the Commissioner for a decision whether, in any respect specified in that application, the request for information to which the requirement relates has been dealt with in accordance with Part 1 of this Act. | |
5. Appeals |
38 | The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so that they are protected against arbitrary dismissal (procedurally/substantively) once appointed. | Score: 1 point for appointment procedure, 1 point for security of tenure | 2 | YES | 2 | 42(1) For the purposes of this Act there is to be an officer known as the Scottish Information Commissioner (in this Act referred to as the "Commissioner") who is to be an individual appointed by Her Majesty on the nomination of the Parliament. 42(3) Subject to subsection (4), the Commissioner is to hold office for such period not exceeding [F27 eight ] years as the Parliamentary corporation, at the time of appointment, may determine. 42(4) The Commissioner--(c) may be removed from office by Her Majesty if subsection (4A) applies. 42(4A) This subsection applies if--(a) the Parliamentary corporation is satisfied that the Commissioner has breached the terms and conditions of office and the Parliament resolves that the Commissioner should be removed from office for that breach, or (b) the Parliament resolves that it has lost confidence in the Commissioner's willingness, suitability or ability to perform the functions of the Commissioner, and, in either case, the resolution is voted for by a number of members not fewer than two thirds of the total number of seats for members of the Parliament. 42(7) The Commissioner, in the exercise of that officer’s functions (except the function of preparing accounts), is not subject to the direction or control of the Parliamentary corporation, of any member of the Scottish Executive or of the Parliament; but this subsection is without prejudice to [F34 sections 42(9C) and 46(2A) and paragraphs3(4), 4A, 6(2), 7 and 8 ] of schedule 2. | Essentially an officer of parliament. |
5. Appeals |
39 | The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence. | Score 1 point for reports to parliament, 1 point for budget approved by parliament | 2 | YES | 2 | 46(1) The Commissioner must lay annually before the Parliament a general report on the exercise during the reporting year of the functions conferred on that officer under this Act. Schedule 2 paragraph 4A(1) The Commissioner must, before the start of each financial year, prepare proposals for the Commissioner's use of resources and expenditure during the year (a "budget") and, by such date as the Parliamentary corporation determines, send the budget to the Parliamentary corporation for approval. | |
5. Appeals |
40 | There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise. | Score 1 point for not politically connected, 1 point for professional expertise | 2 | Partially | 1 | 42(1A) A person is disqualified from appointment as the Commissioner if the person is, or holds office in, or is an employee or appointee of, another Scottish public authority. | The Act does not require Commissioners to have professional expertise. The prohibitions are very limited in nature - e.g. do not include more direct forms of political connections, such as party membership - but one point given nevertheless. |
5. Appeals |
41 | The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies. | Score 1 point for reviewing classified documents, 1 point for inspection powers | 2 | Partially | 1 | 50(1) Where the Commissioner--(a) has received an application under section 47(1); or (b) reasonably requires information--(i) for the purpose of determining whether a Scottish public authority has complied or is complying with the provisions of this Act; or (ii) for the purpose of determining whether the practice of a Scottish public authority conforms with the code of practice issued under section 60 or 61, that officer may give the authority notice in writing (referred to in this Act as "an information notice") requiring it, within such time as is specified in the notice, to give the officer, in such form as may be so specified, such information relating to the application, to compliance with this Act or to conformity with the code of practice as is so specified. 50(7) Subject to subsection (5), neither--(a) an obligation to maintain secrecy; nor (b) any other restriction on disclosure, however arising or imposed, affects the duty to comply with an information notice. Schedule 3 paragraph 1(1) If a sheriff is satisfied by evidence on oath supplied by the Commissioner that there are reasonable grounds for suspecting--(a) that a Scottish public authority has failed or is failing to comply with--(i) any of the requirements of Part 1 of this Act; (ii) so much of a notice given to it by the Commissioner under subsection (5) of section 49 as, by virtue of subsection (6)(b) of that section, requires steps to be taken; or (iii) an information notice or a enforcement notice; or (b) that an offence under section 65(1) has been or is being committed, and that evidence of such a failure to comply or of the commission of the offence is to be found on any premises specified as part of that evidence, the sheriff, subject to paragraph 2, may grant to the Commissioner such warrant as is mentioned in subparagraph (2). Schedule 3 paragraph 1(2) The warrant is one which authorises the Commissioner, or any member of the Commissioner's staff, at any time within seven days after the date of the warrant-- (a) to enter and search the premises; (b) to inspect and seize any documents or other material found there which may constitute the evidence in question; and (c) to inspect, examine, operate and test any equipment found there in which information held by the authority may be recorded. Schedule 3 paragraph 7 The powers of inspection and seizure conferred by the warrant are not exercisable in respect of information which is exempt information by virtue of section 31(1). | One point deducted because the inspection and seizure powers do not apply to documents concerning national security, nor that covered by an attorney-client privilege (schedule 3 paragraph 8). Similarly, the Commissioner's reviewing power is limited by the attorney-client privilege (s50(5)). Also, the Commissioner must go through a sheriff to inspect. |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | YES | 2 | 53(1) If a Scottish public authority has failed to comply with--(a) so much of a notice given to it by the Commissioner under subsection (5) of section 49 as, by virtue of subsection (6)(b) of that section, requires steps to be taken by the authoriy; (b) an information notice; or (c) an enforcement notice, the Commissioner may certify in writing to the court that the authority has failed to comply with the notice. 53(3) Where a failure to comply is certified under subsection (1), the court may inquire into the matter and, after hearing any witness who may be produced against or on behalf of the authority, and after hearing any statement that may be offered in defence, may deal with the authority as if it had committed a contempt of court. | Clearly binding powers however enforcement needs to go through a court so not as direct as it could be. |
5. Appeals |
43 | In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. | 1 for partial, 2 for fully | 2 | YES | 2 | 51(1) If the Commissioner is satisfied that a Scottish public authority has failed to comply with a provision of Part 1 of this Act the Commissioner may give the authority a notice (referred to this Act as "an enforcement notice") requiring the authority to take, within such time as is specified in the notice, such steps as are so specified for so complying. 52(2) A decision notice or enforcement notice to which this section applies ceases to have effect, in so far as it relates to the perceived failure, if, not later than the thirtieth working day following the effective date, the First Minister of the Scottish Executive, after consulting the other members of that Executive, signs and gives the Commissioner a certificate stating that the First Minister has on reasonable grounds formed, after such consultation, the opinion both that -- (a) there was no such failure; and (b) the information requested is of exceptional sensitivity. | While the Commissioner has the power to issue enforcement notices, this can be overridden, but only by the First Minister after consultation with other ministers and where the information is of exceptional sensitivity. We would prefer not to have any overrides, but no point deducted here. |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | YES | 2 | 56 An appeal, on a point of law, to the Court of Session may be made--(a) against a decision by the Commissioner under subsection (2) of section 49, by the person who applied for that decision; (b) against a decision by the Commissioner under subsection (3)(b) of that section --(i) by that person; or (ii) by the Scottish public authority in respect of which the decision was made; or (c) against the decision which resulted in the giving of--(i) an information notice; or (ii) an enforcement notice, to a Scottish public authority, by that authority. | |
5. Appeals |
45 | Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance. | 1 for free, 1 for no lawyer required. | 2 | YES | 2 | Not mentioned | The Act is silent on cost. However, the Commissioner's website states that an appeal can be made simply by filling in an application form, or by writing a letter with the requisite information (https://www.itspublicknowledge.info/appeal). It therefore seems to be free of charge and not to require legal assistance and this has been confirmed by the Commissioner's office. |
5. Appeals |
46 | The grounds for an external appeal are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.). | Score 1 point for appealing refusals, additional points for appealing other violations. | 4 | YES | 4 | 20(1) An applicant who is dissatisfied with the way in which a Scottish public authority has dealt with a request for information made under this Part of this Act may require the authority to review its actions and decisions in relation to that request. 47(1) A person who is dissatisfied with--(a) a notice given under section 21(5) or (9); or (b) the failure of a Scottish public authority to which a requirement for review was made to give such a notice, may make application to the Commissioner for a decision whether, in any respect specified in that application, the request for information to which the requirement relates has been dealt with in accordance with Part 1 of this Act. | Broad grounds but must go through the internal complaints system first. |
5. Appeals |
47 | Clear procedures, including timelines, are in place for dealing with external appeals. | Score 1 point for clear procedures, 1 point for timelines. | 2 | YES | 2 | 49(2) In a case where the Commissioner determines that subsection (1) does not require a decision to be made, that officer must give the applicant and the Scottish public authority in question notice in writing within one month of receipt of the application, or within such other period as is reasonable in the circumstances, specifying--(a) that no decision falls to be made in relation to the application; and (b) the reasons why that is the case. 49(3) In any other case, the Commissioner must--(a) give that authority notice in writing of the application and invite its comments; and (b) if no settlement has in the meantime been effected, reach a decision on the application before the expiry of four months after receiving it, or before the expiry of such other period as is reasonable in the circumstances. 49(6) Where the Commissioner decides that that authority has not dealt with a request for information in accordance with Part 1 of this Act, the notice under subsection (5) must specify--(a) the provision of that Part with which the authority has failed to comply and the respect in which it has so failed; (b) the steps which, in the opinion of the Commissioner, the authority must take to comply with the provision; and (c) the time within which those steps must be taken. | Reasonably detailed procedures but could be elaborated further. |
5. Appeals |
48 | In the appeal process, the government bears the burden of demonstrating that it did not operate in breach of the rules. | Score Y/N and award 2 points for yes. | 2 | YES | 2 | Code of Practice on the Discharge of Functions by Scottish Public Authorities under the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004 Part 2, 11.1.1 Where an appeal has been made to the Commissioner regarding an authority's handling of an information request, the Commissioner will provide the authority with an opportunity to comment on the application. This opportunity also allows the authority to present submissions on its handling of the request and to include additional reasoning in support, for example, of its position that the information requested is not held by the authority, or the arguments put forward in support of the decision to not disclose information. | The Act is silent on the burden of proof. However, section 11.1.1 of the Code of Practice states: "Where an appeal has been made to the Commissioner regarding an authority's handling of an information request, the Commissioner will provide the authority with an opportunity to comment on the application. This opportunity also allows the authority to present submissions on its handling of the request and to include additional reasoning in support, for example, of its position that the information requested is not held by the authority, or the arguments put forward in support of the decision to not disclose information." Section 11.1.2 of the Code states: "The burden of proof is always on the authority to demonstrate that the exemptions/exceptions apply, and the Commissioner is unlikely to agree that exemptions/exceptions apply where only generic reasons have been provided". |
5. Appeals |
49 | The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better records management) | 1 for partial, 2 for fully. | 2 | Partially | 1 | 44(1) If it appears to the Commissioner that the practice of a Scottish public authority in relation to the exercise of its functions under this Act does not conform with the code of practice issued under section 60 or 61, the Commissioner may give the authority a recommendation (in this Act referred to as a "practice recommendation"). 44(2) A practice recommendation must--(a) be in writing and specify the code and provisions of that code with which, in the Commissioner's opinion, the authority's practice does not conform; and (b) specify the steps which that officer considers the authority ought to take in order to conform. Schedule 2 paragraph 6(1) The Commissioner may do anything which appears necessary or expedient for the purpose of, or in connection with, or which appears conducive to, the exercise of that officer's functions; and without prejudice to that generality, may in particular--(a) acquire and dispose of land and other property; and (b) enter into contracts. | As explained by the Code, a practice recommendation "cannot be directly enforced by the Commissioner". However, "a failure to comply with a practice recommendation may lead to a failure to comply with the legislation which can result in an enforcement notice being issued by the Commissioner. A failure may also be the subject of specific comment in a report by the Commissioner to Parliament." (https://www.gov.scot/binaries/content/documents/govscot/publications/advice-and-guidance/2016/12/foi-eir-section-60-code-of-practice/documents/foi-section-60-code-practice-pdf/foi-section-60-code-practice-pdf/govscot%3Adocument/FOI%2B-%2Bsection%2B60%2Bcode%2Bof%2Bpractice.pdf) |
6. Sanctions & Protections |
50 | Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information. | Score 1 point for sanctions for underming right, 1 point for destruction of documents | 2 | YES | 2 | 65(1) Where--(a) a request for information is made to a Scottish public authority; and (b) the applicant is, under section 1, entitled to be given the information or any part of it, a person to whom this subsection applies who, with the intention of preventing the disclosure by the authority of the information, or part, to which the entitlement relates, alters, defaces, blocks, erases, destroys or conceals a record held by the authority is guilty of an offence. (2) Subsection (1) applies to the authority and to any person who is employed by, is an officer of, or is subject to the direction of, the authority. (3) A person guilty of an offence under subsection (1) is liable, on summary conviction, to a fine not exceeding level 5 on the standard scale. | Reasonably broad list of actions that may be sanctioned although it would be better to apply generally to wilful obstruction of access with these as examples. |
6. Sanctions & Protections |
51 | There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them). | Score 1 point for either remedial action or sanctions, 2 points for both | 2 | Partially | 1 | 53(1) If a Scottish public authority has failed to comply with--(a) so much of a notice given to it by the Commissioner under subsection (5) of section 49 as, by virtue of subsection (6)(b) of that section, requires steps to be taken by the authoriy; (b) an information notice; or (c) an enforcement notice, the Commissioner may certify in writing to the court that the authority has failed to comply with the notice. (2) For the purposes of this section, a Scottish public authority which, in purported compliance with an information notice--(a) makes a statement which it knows to be false in a material respect; or (b) recklessly makes a statement which is false in a material respect, is to be taken to have failed to comply with the notice. (3) Where a failure to comply is certified under subsection (1), the court may inquire into the matter and, after hearing any witness who may be produced against or on behalf of the authority, and after hearing any statement that may be offered in defence, may deal with the authority as if it had committed a contempt of court. 65(1) Where--(a) a request for information is made to a Scottish public authority; and (b) the applicant is, under section 1, entitled to be given the information or any part of it, a person to whom this subsection applies who, with the intention of preventing the disclosure by the authority of the information, or part, to which the entitlement relates, alters, defaces, blocks, erases, destroys or conceals a record held by the authority is guilty of an offence. (2) Subsection (1) applies to the authority and to any person who is employed by, is an officer of, or is subject to the direction of, the authority. (3) A person guilty of an offence under subsection (1) is liable, on summary conviction, to a fine not exceeding level 5 on the standard scale. | This is not really a system for imposing sanctions for systematic failures to respect the Act but it does provide for sanctions to be imposed on poublic authorities and there is also the system of codes of practice so one point given. |
6. Sanctions & Protections |
52 | The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law. | Score 1 for oversight body, 1 for immunity for others | 2 | Partially | 1 | 67 Where, in compliance with a request for information, information supplied to a Scottish public authority by a third party is communicated by the authority, under section 1, to the applicant, the publication to the applicant of any defamatory matter contained in the information so supplied is privileged unless that publication is shown to have been made with malice. | This only provides limited legal immunity to public authorities, not the Commissioner, only for information supplied by third parties and only against defamation. Better practice would provide for immunity for good faith disclosures against liability under any other law. |
6. Sanctions & Protections |
53 | There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers). | Score 2 for strong protections, 1 for moderate protections | 2 | YES | 2 | See Public Interest Disclosure Act 1998 2 After section 47A of the 1996 Act there is inserted-- 47B (1) A worker has the right not to be subjected to any detriment by any at, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. | Scotland has strong whistleblowing protections under the Public Interest Disclosure Act 1998. |
7. Promotional Measures |
54 | Public authorities are required to appoint officials (information officers) or units with dedicated responsibilities for ensuring that they comply with their information disclosure obligations. | Score Y/N, Y=2 points | 2 | Partially | 1 | Code of Practice on the Discharge of Functions by Scottish Public Authorities under the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004 Part 2, 1.2.2 It is good practice to have a designated senior member of staff with lead management responsibility for FOI within each authority. This lead role should be acknowledged formally within the organisation and reflected in its policies and procedures. Overall responsibility for the effective implementation and regular review of these should lie with the senior member of staff with lead responsibility for FOI. All staff should be aware of who has the lead management role for FOI. Part 2, 1.2.3 Senior managers should ensure that appropriate procedures and practices are established and embedded within the organisation to make sure staff are adequately trained and fully supported at all levels in carrying out their FOI duties. Senior managers should also take responsibility and be accountable for FOI in their areas. | IOs provided for but only as good practice and not as a mandatory measures. |
7. Promotional Measures |
55 | A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. | Score Y/N, Y=2 points | 2 | YES | 2 | 43(1) The Commissioner, with a view in particular to promoting the observance by Scottish public authorities of the provisions of--(a) this Act; and (b) the codes of practice issued under sections 60 and 61, is to promote the following of good practice by those authorities. | As explained by the Scottish Information Commissioner's website, the Commissioner "is responsible for the enforcement and promotion of Scotland's freedom of information laws." (https://www.itspublicknowledge.info/about-the-commissioner) |
7. Promotional Measures |
56 | Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. | Score Y/N, Y=2 points | 2 | Partially | 1 | 43(2) The Commissioner— (a) must determine what information it is expedient to give the public concerning the following matters— (i) the operation of this Act; (ii) good practice; (iii) other matters within the scope of that officer’s functions, and must secure the dissemination of that information in an appropriate form and manner; and (b) may give advice to any person as to any of those matters. | No real obligation to raise public awareness but at least a general authorisation to do so. |
7. Promotional Measures |
57 | A system is in place whereby minimum standards regarding the management of records are set and applied. | Score Y/N, Y=2 points | 2 | YES | 2 | 43(7) The Commissioner must from time to time consult the Keeper of the Records ofScotland about the promotion under subsection (1) of the observance by Scottishpublic authorities of the provisions of the code of practice issued under section 61. 44(1) If it appears to the Commissioner that the practice of a Scottish public authority inrelation to the exercise of its functions under this Act does not conform with the codeof practice issued under section 60 or 61, the Commissioner may give the authority arecommendation (in this Act referred to as a “practice recommendation”). (2) A practice recommendation must— (a) be in writing and specify the code and the provisions of that code with which,in the Commissioner’s opinion, the authority’s practice does not conform; and (b) specify the steps which that officer considers the authority ought to take inorder to conform. (3) The Commissioner must consult the Keeper of the Records of Scotland before giving a practice recommendation to a Scottish public authority (other than the Keeper) in relation to conformity with the code of practice issued under section 61. 61(1) The Scottish Ministers are to issue, and may from time to time revise, a code of practice providing guidance to Scottish public authorities as to the practice which it would, in the opinion of the Ministers, be desirable for the authorities to follow in connection with the keeping, management and destruction of the authorities’ records. | See also Code of Practice on Records Management by Scottish Public Authorities (https://www.gov.scot/binaries/content/documents/govscot/publications/advice-and-guidance/2011/12/code-of-practice-on-records-management/documents/section-61-code-practice-records-management-pdf/section-61-code-practice-records-management-pdf/govscot%3Adocument/Section%2B61%2Bcode%2Bof%2Bpractice%2Bon%2Brecords%2Bmanagement.pdf), Public Records (Scotland) Act 2011 (https://www.legislation.gov.uk/asp/2011/12/contents) |
7. Promotional Measures |
58 | Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. | Score Y/N, Y=2 points | 2 | NO | 0 | Code of Practice on the Discharge of Functions by Scottish Public Authorities under the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004 Part 2, 3.1.1 It is good practice to follow the Commissioner's recommendation that an authority adopts a Model Publication Scheme and create its own guide to the information it makes available under the model scheme, which forms part of its overall compliance with the publication scheme duty. | Neither the Act nor Code of Practice requires public authorities to create and update public lists of documents in their possession. However, according to section 3.1 of the Code, authorities are encouraged to adopt "a Model Publication Scheme and create its own guide to the information it makes available under the model scheme, which forms part of its overall compliance with the publication scheme duty." (https://www.gov.scot/binaries/content/documents/govscot/publications/advice-and-guidance/2016/12/foi-eir-section-60-code-of-practice/documents/foi-section-60-code-practice-pdf/foi-section-60-code-practice-pdf/govscot%3Adocument/FOI%2B-%2Bsection%2B60%2Bcode%2Bof%2Bpractice.pdf) |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | Partially | 1 | Code of Practice on the Discharge of Functions by Scottish Public Authorities under the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004 Part 2, 1.3.1 Authorities should provide training to ensure that all staff have sufficient knowledge of the regimes. | Not mandatory but at least some formal recommendation here. |
7. Promotional Measures |
60 | Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. | Score Y/N, Y=2 points | 2 | Partially | 1 | Code of Practice on the Discharge of Functions by Scottish Public Authorities under the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004 Part 2, 2.1.1 It is for each public authority to determine what information can most usefully be recorded under its administrative procedures, while satisfying itself that it is complying with the law (and is able to demonstrate this). Authorities must ensure that their systems provide adequate statistical information to monitor performance effectively. Part 2, 2.1.3 Monitoring activities should be proportionate to the volume of requests handled by an authority and aligned to its performance monitoring arrangements, but should include collecting information about: * the number of requests/requests for review received and whether they fall within FOISA or the EIRs; * the proportion of requests answered within statutory timescales (there may also be value in monitoring the length of time it takes to respond to overdue requests); * the number of requests that have been refused and the reasons for the refusal; * the number of times a fee has been charged; * the outcome of reviews including the number of times an initial decision has been upheld, partially upheld or overturned, or where there has been a failure to respond to the original request; and * the number of cases that are appealed to the Commissioner and the outcome of such appeals. | Not exactly a requirement to publish an annual report but at least to collect relevant information which would presumably itself be open. |
7. Promotional Measures |
61 | A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. | Score Y/N, Y=2 points | 2 | Partially | 1 | 46(1) The Commissioner must lay annually before the Parliament a general report on the exercise during the reporting year of the functions conferred on that officer under this Act. 46(3) The Commissioner may from time to time lay before the Parliament such other reports with respect to the functions conferred on that officer under this Act as that officer thinks fit. | The report only refers to the activities of the office of the Commissioner and not a consolidated report on what has been done under the Act by all public authorities. |
