The Scottish Government

Absolute Exemptions

These are exemptions to which no public interest test applies. Where an absolute exemption applies the public authority does not have to consider whether there is any public interest in disclosing the information. Absolute exemptions include the following classes of exempt material:

Information otherwise accessible (Section 25 FOISA)
Prohibitions on disclosure (Section 26) i.e. information which is prevented from being disclosed by other legislation
Certain confidential material (Section 36(2) FOISA)
Court Records (Section 37 FOISA) and
Certain personal information (Section 38(1) FOISA).

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Accessible Records

These are health, education and some records about local authority tenancies and social services. (Section 68 DPA).

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Applicant

Applicant is defined in the Act as a person who makes a request for information from a Scottish public authority. (Section 1 FOISA).

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Article

The Convention Rights are set out in articles, for example, Article 8 deals with the right to respect for private and family life. In UK legislation we more usually refer to sections. (European Convention of Human Rights).

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Commercial Interests

This term is not defined. The interest must arise from trade or a relationship of a commercial nature whether contractual or not. A commercial interest does not necessarily have to be a financial one but there should be an interest in the sense that a party has invested something in the transaction or relationship which could be put at jeopardy.

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Confidential

Information is confidential if one party, usually the party who discloses the information, would be able to take the holder of the information to court to stop them telling anybody else. The circumstances in which an obligation of confidence can be overridden are where the person consents, where there is a legal obligation to disclose or where there is overriding public interest in the disclosure.

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Convention Rights

This term is defined in the Human Rights Act 1998. The Convention Rights mean the rights and fundamental freedoms set out at particular articles of the Convention on Human Rights and Fundamental Freedoms. These Rights cover the right to life, a prohibition on torture, a prohibition on slavery and forced labour, a right to liberty and security of person, a right to a fair trial, the right not to be punished without law, the right to respect for private and family life, the right to freedom of thought, conscience and religion, the right to freedom of expression, the right to freedom of assembly and association, the right to marry, the right to education, the right to free elections and rights to protection of property. (European Convention of Human Rights).

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Data Controller

This is a person who, whether on his own or jointly or in common with others, decides the purposes for which personal data are processed and the manner in which they are processed. (Section 1 DPA).

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Data Protection Principles

These are the standards of good information handling practice set out in Schedule 1 of the Data Protection Act 1998.

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Data Subject

This means an individual who is the subject of personal data. (Section 1 DPA).

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Decision Notice

The Commissioner has to make a decision about complaints of non-compliance with requests which are made to him. These are embodied in decision notices. (Section 49 FOISA).

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Directive

A Directive is a law passed by the European Union binding upon countries which are part of the European Union. It does not have direct effect in countries in the Union but each country has to pass a national law which meets the standards in the Directive.

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Enforcement Notice

This is the written notice which may be served by the Scottish Information Commissioner if he is satisfied that a Scottish public authority has failed to comply with relevant parts of the Act. The notice will require the authority to take specified steps in order to comply. (Section 51 FOISA).

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Environmental Information

This term is not defined in the Freedom of Information (Scotland) Act but has a wide definition in the Environmental Information Regulations and the Aarhus Convention.

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European Court of Human Rights

This court administers the European Convention on Human Rights. It sits in Strasbourg. It operates within the framework of the Council of Europe. It is different from the European Court of Justice which is the court of the European Union and is based in Luxembourg.

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Fees Notice

A Scottish public authority must serve a fees notice in writing if it wishes to charge an applicant for requested information. The notice must set out the charges. (Section 9 FOISA).

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Fees Regulations

Fees regulations will set out what Scottish public authorities can charge an applicant for the provision of information. As at January 2004 these are not yet available and are not expected to be finalised until Summer 2004 at the earliest. (Section 9 FOISA).

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Functions of a public nature

Functions are of a public nature where they are concerned with the actions of the State in ordering society rather than purely private rights.

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Held

The term is defined in the Act. Information is held by an authority if it is held by the authority otherwise than on behalf of another person - i.e. it holds the information in its own right or for its own purposes. Information is also held if it is held by another person on behalf of the authority, for example by a storage company or a consultant. Information is not held by an authority where it has been supplied in confidence by a Minister of the Crown or a department of the UK government. (Section 3 FOISA)

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Historical records

A record becomes an historical record at the end of a 30 year period which starts at the beginning of the calendar year after the record was created or, with a file, at the end of 30 years from the date on which the last document in a file becomes an historical record. (Section 57- 59 FOISA).

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Information

Where a request is made for information this means information recorded in any form including on CCTV or video. Where the Commissioner seeks information from an authority this can also include information which is not already recorded. (Section 73, Section 50 and Section 64 FOISA).

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Information Notice

This is a notice in writing which the Scottish Information Commissioner can give in certain circumstances where he requires information to deal with a complaint or check on compliance. (Section 50 FOISA).

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Keeper of the Records of Scotland

The Keeper is responsible for the preservation of historical records in Scotland.

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Legal Privilege

This describes the right to consult lawyers about ones legal position and to have the privacy of those consultations respected. Such information is privileged from disclosure or being seized by a law enforcement agency in most circumstances.

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Member States

These are those countries that belong to the European Union.

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National Archives of Scotland

The historical records of Scotland are kept in the national archive.

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Non-Absolute Exemptions

Even if one of these exemptions applies the public authority must still consider whether the public interest in providing the information outweighs the interest served by the application of the exemption. If this is the case the information should still be given.

Examples of non-absolute exemptions are information intended for future publication (Section 27 FOISA) and national security and defence (Section 31 FOISA).

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Non-statutory

This means a rule or code which is not found in a law but which is adopted by an organisation. Non-statutory arrangements may still have enforcement mechanisms attached to them, which may in some cases lead ultimately to the courts.

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Order

An order is a term for secondary legislation made by the Scottish Parliament to give effect to more detailed areas under the law.

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Personal Census Information

This is information collected under the Census which relates to an identifiable person or household. (Section 38 FOISA).

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Personal Data

This is defined in the Data Protection Act 1998 and means information which relates to a living individual who can be identified from that information or other information in the possession of or likely to come into the possession of the holder of the data. (Section 1 DPA)

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Practice Recommendation

This is a recommendation as to good practice which the Scottish Information Commissioner may give to a public authority if it considers the authority is not following the Codes of Practice. (Section 44 FOISA).

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Prejudice

Prejudice is not defined but means a real negative impact upon a circumstance or on an individual. Prejudice is more than mere inconvenience or embarrassment and would amount to a potential interference with properly carrying out a public function or a proper specified interest.

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Public Authorities

These are organisations which carry out public functions. A public function is something which is carried out by or on behalf of the State, for example the provision of publicly-funded health care.

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Public Interest

There is no exhaustive list of what is in the public interest. However it may include factors such as ensuring the efficient and effective running of public services and an interest in ensuring the administration of justice. (See, for example, draft section 60 code).

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Publication

The term is not defined but means making information available by publishing it. Information is published if an individual is able to find that information without going through an intermediary. Publication may be on the internet as well as in other forms.

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Publication Scheme

This is a scheme which relates to the proactive publication of information by the authority. The scheme has to be approved by the Scottish Information Commissioner. If an authority makes information available via its publication scheme, it does not have to provide such information in response to a specific request because the information is already available, although advice and assistance should still be provided. (Sections 23 and 24 FOISA).

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Refusal Notice

This is the notice which a Scottish public authority must give to an applicant if it is claiming that information requested is exempt. (Section 16 FOISA).

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Relevant Filing System

This is the term which defines those sets of manual information which are covered by the Data Protection Act 1998. (Section 1 DPA).

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Requirement for Review

This occurs where an applicant who is not happy with the way in which a Scottish public authority has dealt with a request for information may require the authority to review its actions and decisions. (Section 20 FOISA).

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Scottish Information Commissioner

The Scottish Information Commissioner is responsible for enforcing the Act and also for providing guidance on good practice. (Part 3 FOISA).

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Scottish Ministers

Scottish Ministers is the collective term used for the Scottish Executive which is the devolved government for Scotland and is accountable to the Scottish Parliament. It is responsible for most of the issues of day-to-day concern to the people of Scotland, including health, education, justice, rural affairs, transport and local government.

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Scottish public authority

The Act contains a detailed list of who is to be considered as a Scottish public authority. This list is extensive and includes amongst others the Scottish Executive, local authorities, NHS Scotland, colleges, universities and the police. (Sections 3-7 and Schedule 1 FOISA).

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Section 60 Code

This is a code of practice issued by the Scottish Ministers which deals with handling requests for information. At January 2004 the code is still in draft form. It will be issued in finalised form in Spring 2004 following consultation with the Scottish Information Commissioner. (Section 60 FOISA).

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Section 61 Code

This is a code of practice issued by the Scottish Ministers which deals with records management. (Section 61 FOISA).

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State

This is not defined in the Human Rights Act or the Freedom of Information (Scotland) Act. It is a general term used for the organisations that exercise public powers. It does not only cover central government; any public authority is part of the State. The action of any public authority is an action of the State.

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Substantial Prejudice

This is not defined in the Act but would mean a serious interference with a matter of public interest. (See Section 60 Code).

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Trade Secret

This term is not defined but the characteristics for a trade secret are generally that:

• it must be used in the course of a trade or business;
• the owner must limit the widespread dissemination of it or discourage widespread publication, that is, must make his or her own efforts to protect it;
• there must be an economic advantage or value from the fact that it is not generally known;

It can include not only secret formulae, patents, techniques, processes or technological secrets but also business information such as marketing studies or lists of customers;

The amount of money or effort spent developing the subject matter of a secret and the ease or difficult with which it could be duplicated by others will be considered.

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UK Information Commissioner

The UK Information Commissioner is different from the Scottish Information Commissioner. The UK Information Commissioner has responsibility throughout the UK for data protection and has responsibility for freedom of information in England, Wales and Northern Ireland and for cross-border public authorities. One of his Assistant Commissioners specifically deals with data protection as it relates to Scotland. The Scottish Information Commissioner only has responsibility for freedom of information in Scotland, not for data protection, although he will liaise closely with the UK Information Commissioner. (See (UK) Freedom of Information Act 2000).

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Vexatious

A public authority does not have to comply with requests for information if the request is vexatious. The term is not defined but generally it is expected this would set a high threshold and authorities should not regard a request as vexatious merely because it is inconvenient or troublesome. (Section 14 FOISA)

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Warrant

A warrant is an order of the court entitling named or specified individuals to access premises and carry out searches without the consent of the occupier.

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