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SCOTTISH EXECUTIVE FREEDOM OF INFORMATION (SCOTLAND) ACT 2002:OPEN LEARNING WORKBOOK

MODULE 8
DEALING WITH AND RESPONDING TO REQUESTS FOR INFORMATION; AND FEES - HOW SHOULD AN AUTHORITY HANDLE A REQUEST? PART 1

8.1 CONTENT AND LEARNING OBJECTIVES

This module and Module 9 discuss how an authority should handle a request for information, building on the information that you have already covered in Module 7. This module primarily covers the legal issues and general details from the code on handling requests. Module 9 concentrates on other aspects of the draft section 60 Code.

NB: At January 2004 the section 60 code is in draft form. It will be issued in finalised form in Spring 2004 following consultation with the Scottish Information Commissioner.

Once you have worked your way through this module you should understand:

• When public authorities can ask an applicant for more information
• The time limits for responding to requests
• The requirement for reviews
• The requirement to provide advice and assistance
• What formats requested information can be provided in
• That exemptions can be applied
• That a public interest test may apply
• What an authority has to tell an applicant when refusing a request
• What to do if the information is defamatory

SUGGESTED TIME ALLOCATION: 1 hour

8.2 LEARNING MATERIALS

8.2.1 Handling Requests

Scottish public authorities must comply with requests for information under the Act promptly. There is a deadline for compliance of 20 working days after receipt of the request, excluding any time between the point of asking the applicant for further information or for payment of a fee and the receipt of the further information or fee.

8.2.2 An authority can request further information from an applicant if it is reasonably required to identify and locate the information. The authority must tell the applicant that it requires further information and specify what this is.

Background to the Code

Section 60 of the Act requires the Scottish Ministers to issue guidance to public authorities on discharging their functions under the Act. A draft code of practice has been issued for public consultation and will be issued in final form by Ministers following consultation with the Scottish Information Commissioner. Complying with the Section 60 Code will mean that authorities will be taken to comply with their duty to provide advice and assistance and also should help them comply with their other obligations under the Act.

The Scottish Information Commissioner will be able to issue a practice recommendation if an authority fails to comply with the code. This in turn may lead to an authority failing to comply with the Act which could lead to enforcement action by the Commissioner. Practice recommendations and enforcement notices are discussed in Module 19.

8.2.3 Duty to provide advice and assistance

There is a duty on public authorities to provide advice and assistance to applicants and those wishing to make requests. An authority will comply with this duty if it complies with the Section 60 Code.

This is a summary of what the draft Section 60 Code says about providing advice and assistance:

• Be prepared to explain the key provisions of the Act to potential applicants.
• Consider appointing an Information Officer or unit that handles requests.
• Do not give applicants the impression that they must disclose reasons for making the request.
• Give particular consideration to those with a disability or with communication difficulties.
• Discuss the request with the applicant and provide practical advice.

For example, offer to take a note of the request over the telephone and send the note to the applicant for confirmation; once returned, this would constitute a valid request; make sure a stamped addressed envelope is provided.

If possible tape the call itself with the consent of the applicant; this would constitute a valid request as it would be capable of subsequent reference.

• Help the applicant to describe more clearly what information they require where they have provided insufficient information to enable the authority to identify and locate the information sought or where it is unclear; contact the applicant as soon as possible to clarify the request.
• Consider providing an outline of the different types of material that might meet the request.
• Provide access to catalogues and indexes.
• Provide a general response with further options.
• If the request would exceed the cost limit, tell the applicant what could be provided within the cost.

The overall theme of the advice is that authorities should be prepared to be flexible when dealing with requests for information.

8.2.4 Format

If, at the time of making the request, an applicant asks for information in a particular way, as discussed in Module 7, the authority must, so far as is reasonably practicable, give effect to that preference. The authority may take into account the cost of providing the information as well as any other relevant factors. If it decides that it is not reasonably practicable to meet the preference then it must notify the applicant why and still provide the material in another format. The Act specifically states that in considering the format, the authority must still have regard to its duties under the Disability Discrimination Act 1995. An Annex to the Section 60 code will provide an outline of the key responsibilities an authority has under that legislation.

8.2.5 Exemptions

Exemptions may apply under the Act which may mean that the information does not have to be disclosed. There are exemptions that are referred to as " absolute" and exemptions that are referred to as " non-absolute". If an exemption is absolute and the information requested fits the exemption, then the authority does not have to disclose the information under the Act. If an exemption is non-absolute then, even if the information requested fits the exemption, the authority must consider a public interest test. This involves looking at whether, in all the circumstances of the case, the public interest in disclosing the information is not outweighed by the public interest in maintaining the exemption. Modules 12, 13 and 14 deal with exemptions.

8.2.6 Refusals

If an authority decides that it will claim an exemption then it must give the applicant a written refusal notice. A refusal notice must generally state that the authority holds the information, that it is claiming an exemption, and why it applies. If it is a non-absolute exemption then the authority must explain why the public interest in maintaining the exemption outweighs the public interest in disclosing it. This notice must be served within the 20 working day period.

Similarly, if the authority estimates that the cost of complying with the request would exceed an upper cost limit set by the Fees Regulations then it is not obliged to comply with the request. The authority must write to the applicant and advise them of this within the 20 working day timescale.

A Scottish public authority does not have to comply with a request if it is vexatious and it does not have to comply with identical or substantially similar requests from the same person unless there has been a reasonable period of time between the making of the request and the subsequent request. Again, they must tell the applicant within the 20 working day period that this is the case unless they have previously dealt with such a repeat or vexatious request and it would be unreasonable to expect them to serve a further notice. This is what the draft Section 60 Code says about vexatious, repeated, multiple and campaign requests:

• It is for the authority to decide if a request is vexatious.
• Irritation or nuisance caused by the applicant is not sufficient for a request to be vexatious in the absence of something else.
• Use the power to refuse a request on vexatious grounds sparingly and do not abuse it simply to avoid dealing with a request.
• When considering a repeat request, what is a reasonable period of time involves an assessment by the authority in the particular circumstances of the case.
• Under the Fees Regulations an authority may not be required to comply with a number of related requests because the total cost would exceed the threshold. The authority should consider whether there is another more cost effective way of making the information available, for example by putting it on its website.
• Base decisions about vexatious, repeat and multiple requests on clear-cut reasoning and be able to justify these to the Scottish Information Commissioner if necessary.

If an authority does not hold the information then it must give the applicant written notice of this within the 20 working day period.

8.2.7 Reviews

Any refusal notice or notice stating that the fees would exceed the set amount must give details of the authority's complaints procedure, the right to request the authority to review its actions and decisions on a request and the right to complain to the Scottish Information Commissioner. A dissatisfied applicant can ask the authority to review its actions and decisions relating to a request. This is discussed further in Module 19.

8.2.8 Defamation

A person defames another if he publishes information about the individual which would make others think less of him. There may be some material which is held by authorities which contains derogatory or negative comments about individuals. If the authority provided such material in response to a FOISA request the individual could claim that the authority had defamed him and take the authority to court. The Act gives authorities some protection against this happening.

Authorities cannot refuse to answer a FOISA request because the response would disclose defamatory material but as long as the defamatory material was supplied by a third party the authority will not be liable for defamation.

If the defamatory material was written or created by the authority's own staff however the authority will be liable.

8.4 SUMMARY

The Act specifies how authorities should handle requests for information. Requests should be dealt with promptly and in any case within 20 working days. Authorities can ask for more information if necessary in order to identify the information requested. Exemptions may apply to some information, which means that the information does not have to be disclosed. If an exemption applies, the applicant should be given a written refusal notice. An authority is not obliged to comply with a request if the cost of doing so would exceed the amount set by the Fees Regulations or if the request is vexatious. If the information is not held by the authority, it must notify the applicant. If an applicant is dissatisfied with the way their request is dealt with, they can ask the authority for a formal review.

The draft section 60 Code gives advice on certain aspects of handling requests. The Code describes some of the different ways that authorities can fulfil their duty to provide advice and assistance to applicants. For example, they could explain the Act to potential applicants, they could help those with disabilities, they could help the applicant to describe what they want more clearly. The Code also discusses how vexatious and repeated requests could be handled.

8.5 KEYWORDS

8.6 REFERENCES

Section 1 FOISA General Entitlement
Section 2 FOISA Effect of Exemptions
Section 10 FOISA Time for Compliance
Section 11 FOISA Means of Providing Information
Section 12 FOISA Excessive Cost of Compliance
Section 14 FOISA Vexatious or repeated requests
Section 15 FOISA Duty to provide advice and assistance
Section 16 FOISA Refusal Notices
Section 17 FOISA Notice that information is not held
Section 20 FOISA Refusals
Section 21 FOISA Further review
Section 67 FOISA Protection from actions for defamation action

8.7 RESOURCES

Section 60 Code:
www.scotland.gov.uk/about/FCSD/MCG-NW/00018022/Code60.pdf

8.8 SELF-ASSESSMENT CHECKLIST

1. If an authority responds to a request for information within 20 working days this will satisfy the statutory requirement to be prompt. TRUE or FALSE?

2. If an authority considers that an absolute exemption applies in respect of the information requested, then before reaching its final decision the authority must apply the public interest test. TRUE or FALSE?

3. The public interest test involves looking at whether information that is covered by an exemption should nonetheless be disclosed because the public interest in disclosing the information outweighs the public interest in maintaining the exemption. TRUE or FALSE?

4. The following are all valid grounds for serving a refusal notice:

• the information requested is covered by an exemption and does not have to be disclosed;
• the cost of complying with the request would exceed the upper cost limit set by the Fees Regulations;
• the request is vexatious.

TRUE or FALSE?

5. If an authority fails to take account of the Code, the Scottish Information Commissioner may issue a practice recommendation specifying the steps that must be taken by the authority. TRUE or FALSE?

6. If an authority responds to a request for information and provides defamatory material, it will be only be liable where the defamatory material was supplied by a third party. TRUE or FALSE?

Click here for answers

8.9 WHAT THEY SAID

"Local authorities need to have information officers who will assist people who request information" (Maureen McMillan - MSP)

"Ordinary people want a courteous efficient service in which openness and an acknowledgment of their right to ask for and receive information is assured" (Maureen McMillan - MSP)

"There are issues for public authorities in respect of the costs of providing a freedom of information regime, but we should focus on the potential costs for individuals and ensure that those are not a barrier. (Pauline McNeil - MSP)

"…if Ministers can set fees by regulation, what is to stop them setting the fees at a level that would prevent the information being accessed by members of the public?" (Murdo Fraser - MSP)

"… the charging regime should neither discourage applicants nor impose unreasonable or limitless burdens on Scottish public authorities" (Minster for Justice letter to Justice 1 Committee)

8.10 CASE STUDY

Task

Consider the following possible requests made to the agency. For each one, do you think that the agency might be able to rely on a claim that the request is repeat, vexatious or multiple? For each one what might the agency take into account when deciding?

1. On 15 July 2005 Sabine Dupont makes a request for information about the number of enquiries about deer stalking received by the agency in 2004.

2. On 20 July 2005 Claire Cowan makes a request for information for the number of enquiries about deer stalking received by the agency in 2003 and 2004.

3. On 23 July 2005 Save Our Deer Stalking (a (fictitious) group that campaigns for the promotion of deer stalking in the UK) makes a request for any policies or information relating to the advertising or promotion of deer stalking in Scotland. The letter is signed Sabine Dupont, Chief Co-ordinator.

4. On 24 July 2005 the agency receives identical requests from a journalist from a country sports magazine in France, a journalist from a country sports magazine based in England but also sold in Scotland and a journalist from a Scottish tourism magazine all relating to this issue.

5. Between 5 August 2005 and the end of August 2005 the agency receives approximately 50 requests from 50 different individuals all in the same format and asking for information about the agency's policy on promoting deer stalking and related accommodation in Scotland. It transpires that campaigns have been run by several magazines to encourage their readers to write in and ask for this information.

6. On 15 August the agency receives a request from the same journalist from the Scottish tourism magazine about the amount of money the agency spends on promoting the whisky industry in Scotland. The letter states that this is required for an article about the good work put in by the agency in promoting this type of tourism.

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