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Scottish Executive Freedom of Information (Scotland) Act 2002 Open Learning Workbook

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

MODULE 20
FINAL REVIEW

20.1 CONTENT AND LEARNING OBJECTIVES

This module summarises what has been covered in the second part of the workbook. You may also wish to review Module 10 again now, as well as the self assessment questions and case studies from previous modules.

SUGGESTED TIME ALLOCATION: 50 minutes

20.2 LEARNING MATERIALS

20.2.1 Environmental Information

Requests for environmental information are a special case and will not be handled under FOISA, they will be dealt with under the new Environmental Information (Scotland) Regulations. Almost every public authority will hold some environmental information and so should be aware of the rules for handling requests for such information. Under current Environmental Information Regulations 1992 a request for environmental information does not have to be in writing and can be made orally. The authority currently has to respond to the request within 2 months (although this is expected to change under the new regulations which are to come into force to coincide with the FOISA i.e. January 2005) and a reasonable charge can be made for the information. Exemptions exist in relation to some information.

The FOISA provides for revised Environmental Information Regulations to be made. It is intended that once made the new regulations will mirror procedures as far as possible with those under FOISA.

20.2.2 Exemptions

The aim of FOISA is to provide access to information held by public authorities. However, some information will not necessarily have to be made available as it will be covered by an exemption. There are two types of exemptions: absolute and non-absolute. If an absolute exemption applies, the authority will not have to release the information. Absolute exemptions apply to information which is available via another route, for example if information is contained in an authority's publication scheme, as well as to information that is not available elsewhere, for example where there is a statutory basis to prevent disclosure. If a non-absolute exemption applies then the authority will have to apply a public interest test to establish whether the information should be disclosed or withheld.

There are 17 sections in the FOISA dealing with exemptions. Modules 13 and 14 detail each exemption in turn (Module 13 covers sections 25 - 33 and Module 14 covers sections 34 - 41) and explain whether the exemption is an absolute or a non-absolute one. These Modules also highlight to which exemptions the "substantial prejudice" test applies. As a detailed working knowledge of the exemptions is essential for public authority staff dealing with information requests, revise the relevant Modules and self-assessment questions as appropriate.

The Data Protection Act 1998 aims to secure individuals' right to privacy by protecting information that is held about them. Any authority that handles personal data must comply with the data protection principles which control how such data are processed. These principles require, amongst others, that personal data should be fairly and lawfully processed, accurate, not kept longer than necessary, held securely and processed in accordance with the data subject's rights. Individuals have the right to ask for a description of the personal data held about them, this is known as a subject access request, and to receive a copy of the information. The DPA only relates to information processed by a computer and to some manual files, such as files which relate to specific individuals.

20.2.3 Interface with Data Protection

When the Freedom of Information (Scotland) Act 2002 comes into force people will be able to make a request for all sorts of information from authorities, but a request by an individual for information about themselves will be exempt under freedom of information and will continue to be handled under data protection. However, certain amendments to the Data Protection Act will be made. At present the Data Protection Act only covers computerised information and some manual files. This will be changed so that all recorded information held by an authority concerning an individual will be covered by the right of access, including information in unstructured files. If individuals want access to unstructured data they must describe the information so that the authority can find it.

If someone makes a request for information about another living individual, this will be handled under the Freedom of Information (Scotland) Act, but data protection considerations will still apply. The authority will not have to provide the information:

  • if the disclosure would breach the data protection principles;
  • if the authority would not provide the information to the data subject themselves if they requested it or if the individual has lodged an objection under the Data Protection Act which has been accepted by the authority.

If the authority decides that it may wish to disclose the information after applying these considerations, it should consider notifying the individual and take account of their wishes. The authority does not have to be bound by the views of the individual.

20.2.4 Human rights

Public authorities have various powers over the lives of citizens and over businesses. In a democracy ordinary citizens and businesses are entitled to a number of rights and freedoms, like the right to free elections. The Human Rights Act 1998 (HRA) sets limits on how public authorities can behave when they are exercising those powers; another way of putting this is that it gives people a guarantee that their fundamental rights will be respected by the State.

20.2.5 Scottish Information Commissioner

The Scottish Information Commissioner is a fully independent public official. His duties and legal powers should ensure that people get the information from Scottish public authorities to which they are entitled.

Complaints concerning requests can only be made to the Scottish Information Commissioner once an applicant has exhausted the authority's review procedure. If an applicant is dissatisfied with an authority's response to a request, the applicant has 40 days in which to request that the authority reviews its decision. The authority must handle the requirement for review within 20 working days and must notify the applicant of any decisions or actions taken in response.

If an applicant is dissatisfied with the response from the authority, he or she can take their complaint to the Scottish Information Commissioner. The Commissioner will then decide whether to proceed with the complaint. In all cases the Commissioner will notify both the applicant and the authority of his decision.

On occasions the Commissioner will require more information before he can make a decision concerning a complaint and so he may issue the authority with an information notice. The notice will describe what further information is needed and the authority must respond within the deadline set out in the notice.

If the Commissioner becomes aware that an authority is not complying with its duties under the Act, such as the duty to provide advice and assistance, he can issue an enforcement notice, informing the authority which part of the Act it is failing to comply with and what it needs to do to put things right.

Although the Scottish Information Commissioner is responsible for overseeing the Act, there are a small number of occasions when the courts may become involved. It is a criminal offence for anyone to destroy or erase information after a request has been received. This offence can be committed by the authority or its employees. Such cases will be dealt with in the Sheriff court and the offence carries a fine of up to 5000.

If an authority fails to comply with any notice served by the Commissioner, he can bring the authority before the Court of Session. If the Court is satisfied that the authority has failed to comply it may deal with it as a contempt of court. The Court of Session will also deal with appeals made by authorities or applicants in relation to the Act.

In most cases the Commissioner will make the final decision regarding what information should be released, but there is one exception. The First Minister can overrule the Commissioner when it relates to certain decisions taken by the Scottish Administration.

20.3 SELF ASSESSMENT CHECKLIST

1. If an authority receives a request for environmental information under the FOISA which of the following should it NOT do :

  1. provide advice and assistance;
  2. review whether information that is exempt under the Environmental Information Regulations should still be disclosed under the FOISA;
  3. automatically make the information available; or
  4. advise the applicant how to word the request more appropriately?

2. Where a public authority claims or may claim an exemption :

  1. it must notify the applicant within 20 working days;
  2. it must notify the applicant within 40 working days;
  3. it must notify the applicant on request; or
  4. it is under no obligation to inform the applicant ?

3. Which of the following is an absolute exemption :

  1. information whose disclosure would prejudice the economic interests of the UK;
  2. information accessible to the applicant by other means;
  3. information whose disclosure would prejudice the defence of the British Isles; or
  4. information held by the Scottish Administration for the formulation of government policy ?

4. Which of the following is a non-absolute exemption :

  1. information accessible to the applicant by other means;
  2. information contained in any document created by a court;
  3. information whose disclosure would prejudice the commercial interests of any person; or
  4. information whose disclosure would constitute an actionable breach of confidence ?

5. A request for information is to be treated as a subject access request under the Data Protection Act 1998 if :

  1. it is a request for personal data about a third party;
  2. it is a request for personal data about the applicant;
  3. it is a request for non-personal data; or
  4. all of the above ?

6. If a public authority receives a subject access request for unstructured data :

  1. it must respond immediately with the information;
  2. it does not have to tell the applicant whether or not it holds the data;
  3. it is entitled to be given a description of the data; or
  4. it must seek advice from the Information Commissioner ?

7. If a public authority receives a request for disclosure of personal information under the FOISA, it should :

  1. consider the identity of the applicant;
  2. consider the applicant's reasons for making the request;
  3. respond to the request within 2 months; or
  4. notify the subject of the request and take account of his or her wishes ?

8. Which of the following is a Convention Right for the purposes of the Human Rights Act 1998 :

  1. the right to freedom of information;
  2. the right to freedom of expression;
  3. the right to privacy; or
  4. the right to freedom from racial discrimination ?

9. An enforcement notice must contain:

  1. details of the Commissioner's fees for issuing the notice;
  2. the name and address of the complainant;
  3. a 20 day notice period for compliance; or
  4. the relevant part of the Act with which the authority has failed to comply.

Click here for answers

20.4 WHAT THEY SAID

"…it is important to ensure there is proper coverage….there should be no gaps." (Gordon Jackson - MSP)

"…the Bill applies across the length and breadth of the Scottish public sector" (Jim Wallace - MSP)

"The Bill is an interesting document for finding out how many organisations in Scotland are public bodies. Public servants, ministers and quangos are listed in vast array." (Alastair Morgan - MSP)

"… commercial organisations and voluntary and community bodies should be open to scrutiny when they undertake public work and spend public money." (Roseanna Cunningham - MSP)

"Schemes that are to be built for the public and part-funded with public money should be open enough to ensure the beneficiaries are not mainly the shareholders in the private sector." (John Farquhar Munro - MSP)

20.5 CASE STUDY

Task

1. Review what you have learnt from the modules. Look through the self assessment questions that you have answered and consider whether there are any areas of the modules that you would benefit from re-reading.

2. Make a list for yourself of the 10 most important things you should remember about FOISA.

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Page updated: Wednesday, April 5, 2006