Access to Environmental Information: A Consultation

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Access to Environmental Information: A Consultation

Draft
SCOTTISH MINISTERS CODE OF PRACTICE ON THE DISCHARGE OF FUNCTIONS BY PUBLIC AUTHORITIES UNDER THE ENVIRONMENTAL INFORMATION (SCOTLAND) REGULATIONS 2004

Laid before the Scottish Parliament on [ ] pursuant to section 62 of the Freedom of Information (Scotland) Act 2002
Prepared in consultation with the Scottish Information Commissioner

CODE OF PRACTICE - draft

On the Discharge of the Functions of Scottish Public Authorities under the Environmental Information (Scotland) Regulations 2004

Scottish Ministers, after consulting the Scottish Information Commissioner, issue the following Code of Practice pursuant to Regulation 16 of the Environmental Information (Scotland) Regulations 2004.

Laid before the Scottish Parliament on [ date XXXX ] pursuant to Regulation 16 of the Environmental Information (Scotland) Regulations.

Introduction

1. This code of practice outlines to Scottish public authorities the practice which it would, in the opinion of Scottish Ministers, be desirable for them to follow in connection with the discharge of their functions under the Environmental Information (Scotland) Regulations [2004] (EI(S)R).

2. This Code of Practice aims to:

  • facilitate the disclosure of information under the EI(S)Rs by setting out good administrative practice that it is desirable for Scottish public authorities to follow when handling requests for information, including, where appropriate, the transfer of a request to a different authority
  • protect the interests of applicants by setting out standards for the provision of advice that it would be good practice to make available to them and to encourage the development of effective means of complaining about decisions taken under the EI(S)R
  • ensure that Scottish public authorities consider the implications for access to environmental information before agreeing to confidentiality provisions in contracts and accepting information in confidence from a third party more generally.

3. Although there is a power under EI(S)Rs for Scottish Ministers to issue the Code, the provisions of the Code are not legislation. However, Scottish authorities are expected to abide by the Code unless there are good reasons, capable of being justified to the Scottish Information Commissioner, why it would be inappropriate to do so. The requirements for dealing with requests for environmental information are contained in the EI(S)Rs and Scottish public authorities must comply with these provisions at all times. However, section 43 of the FOI(S)A places a duty on the Scottish Information Commissioner to promote the following of good practice by Scottish public authorities ("good practice" includes compliance with the provisions of the Code), and section 44 of the FOI(S)A enables the Scottish Information Commissioner to issue a "practice recommendation" to a Scottish public authority if it appears to him that the practice of the authority does not conform with that proposed in the Code. Further, Regulation 9 of the EI(S)Rs places a duty on Scottish public authorities to provide advice and assistance to applicants and potential applicants. The Scottish Information Commissioner will determine whether or not Scottish authorities will have complied with this duty in any particular case if they have conformed with the Code

Information Notices

4. Regulation 14 of the EI(S)Rs applies the enforcement and appeal provisions of FOI(S)A to environmental information. The Scottish Information Commissioner determines whether the practice of a Scottish public authority conforms to the Code. Where an application has been received under section 47 of the FOI(S)A, the Commissioner may serve an information notice on the authority under section 50 of the FOI(S)A, requiring it to provide information relating to its conformity with the Code.

5. Under the provisions of section 53 of the FOI(S)A, if a public authority fails to comply with an information notice, the Commissioner may certify in writing to the court that the public authority has failed to comply with that notice. The court may then inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of, the public authority, and after hearing any statement that may be offered in defence, deal with the authority as if it had committed a contempt of court.

Duty of Scottish Public Authorities to provide advice and assistance

6. Regulation 9 of the EI(S)Rs places a duty on Scottish public authorities to provide advice and assistance to applicants. A public authority is deemed to have complied with this duty in any particular case if it has conformed with the Code in relation to the provision of advice and assistance in that case. The duty to assist and advise is enforceable by the Scottish Information Commissioner. If a Scottish public authority fails in its statutory duty, the Commissioner may issue a practice recommendation under section 44, or an enforcement notice under section 51 of the FOI(S)A.

7. Scottish public authorities should keep in mind that other Acts of Parliament may be relevant to the way in which authorities provide advice and assistance to applicants or potential applicants, e.g. the Disability Discrimination Act 1995 and the Race Relations Act 1976 (as amended by the Race Relations (Amendment) Act 2000).

Copyright

8. Scottish public authorities should be aware that information that is disclosed under the EIR might be subject to copyright protection. If an applicant wishes to use any such information in a way that would infringe copyright, for example by making multiple copies, or issuing copies to the public, he or she would require a licence from the copyright holder.

9. Reports on the environment may be commissioned by Scottish public authorities from outside organisations. In general, Scottish public authorities should seek to ensure that the copyright of any such reports rests with them. If not, it should be made clear to the outside organisation that under the terms of the EI(S)R, the public authority may be obliged to make copies of their reports, or parts thereof, available to the public in response to EI(S)R applications.

Training

10. All communications to a Scottish public authority, including those not in writing and those transmitted by electronic means, potentially amount to a request for information within the meaning of the EI(S)Rs, and if they do, they must be dealt with in accordance with the provisions of the EI(S)Rs. It is therefore essential that everyone working in a Scottish public authority who deals with correspondence, or who otherwise may be required to provide information, is familiar with the requirements of the EI(S)Rs and this Code, in addition to the FOI(S)A and the other Codes of Practice issued under its provisions, and takes account of any relevant guidance on good practice issued by the Scottish Information Commissioner. Authorities should also ensure that proper training is provided.

11. In planning and delivering training, Scottish public authorities should be aware of other provisions affecting the disclosure of information such as the FOI(S)A, the Data Protection Act 1998, and anti-discrimination legislation (such as the Disability Discrimination Act) or the Local Government (Access to Information) Act 1985.

The Provision of Advice and Assistance to Persons Making Requests for Information

12. The provision of advice and assistance to persons making requests for environmental information differs from that provided to those making general requests for information under FOI(S)A:

  • requests for environmental information need not be in writing
  • EI(S)Rs contain no equivalent to the 'appropriate limit' exemption under section 9 of the FOI(S)A
  • the duty to provide advice and assistance under EI(S)Rs requires a Scottish public authority, within 20 working days of a request, to ask the applicant to provide more particulars where further information is needed.

13. Every Scottish public authority should be ready to provide advice and assistance, including but not necessarily limited to the steps set out below, to those who propose to make, or have made requests to it, in order to facilitate their use of the Regulations. The duty on the Scottish public authority is to provide advice and assistance "so far as it would be reasonable to expect the authority to do so". Any Scottish public authority which conforms with this Code in relation to the provision of advice and assistance in any case will be taken to have complied with this duty in relation to that case.

14. Scottish public authorities should publish their procedures for dealing with requests for information. These procedures may include what the Scottish public authority's usual procedure will be where it does not hold the information requested - see also regulation 11 "transferring requests for information". Such published procedures may also alert potential applicants to the fact that the Scottish public authority may want or may be required to consult other public authorities and/or third parties in order to reach a decision on whether the requested information can be released. Potential applicants may wish to be notified before any transfer of request or consultation is made. If this is the case, the published procedure may alert them that they should say so in their applications - see section on "consultation with third parties" below. The procedures should include an address or addresses (including an e-mail address where possible) to which applicants may direct requests for information or for assistance. A telephone number should also be provided, where possible that of a named individual who can provide assistance. These procedures should be referred to in the authority's publication scheme where it has one.

15. Staff working in Scottish public authorities in contact with the public should bear in mind that not everyone will be aware of the EI(S)Rs or the FOI(S)A, and they may need to draw these to the attention of potential applicants who appear unaware of them.

16. Where a person finds it difficult to specify very clearly the nature of their request, the Scottish public authority should ensure that appropriate assistance is given to enable that person to make a request for information. In particular, if a request is formulated in too general a manner, the authority shall, as soon as possible and not later than 20 working days after receipt of the request, ask the applicant to provide more particulars and shall assist them in doing so. Scottish public authorities should be flexible in offering advice and assistance most appropriate to the circumstances.

17. Where the applicant does not describe the information sought in a way which would enable a Scottish public authority to identify or locate it, or the request is ambiguous, the authority should, as far as practicable, provide assistance to the applicant to enable him or her to describe more clearly the information requested. Authorities should be aware that the aim of providing assistance is to clarify the nature of the information sought, not to determine the aims or motivation of the applicant. Care should be taken not to give the applicant the impression that he or she is obliged to disclose the nature of his or her interest or that he or she will be treated differently if he or she does. It is important that the applicant is contacted as soon as possible, preferably by telephone, fax or e-mail, where more information is needed to clarify what is sought.

18. Appropriate assistance might include:

  • providing the outline of the different kinds of information that might meet the terms of the request
  • providing access to detailed catalogues and indexes, where these are available, to help the applicant ascertain the nature and extent of the information held by the authority;
  • providing a general response to the request setting out options for further information that could be provided on request.
  • advising the person that another person or agency (such as a Citizens Advice Bureau) may be able to assist them with the application, or make the application on their behalf.

This list is not exhaustive, and Scottish public authorities should be flexible in offering advice and assistance most appropriate to the circumstances of the applicant.

19. In seeking to clarify what is sought, Scottish public authorities should bear in mind that applicants cannot reasonably be expected to possess identifiers such as a file reference number, or a description of a particular record, unless this information is made available by the authority for the use of applicants.

20. If, following the provision of such assistance, the applicant still fails to describe the information requested in a way that would enable a Scottish authority to identify and locate the information, the authority is not expected to seek further clarification. The authority should disclose any information relating to the application that has been successfully identified and found for which it does not wish to claim an exception. It should also explain to the applicant why it cannot take the request any further and provide details of the authority's complaints procedure and, where applicable, the applicant's rights under section 47 of the FOI(S)A - see "complaints procedure" below.

21. Once a Scottish authority has provided advice and assistance to applicants whose request is unclear, where the request continues to be formulated in too general a manner to enable any relevant information to be identified, that request may be refused.

22. Where the applicant indicates that he or she is not prepared to pay any charge requested, the authority should consider whether there is any information that may be of interest to the applicant that is available free of charge.

23. There is no EI(S)Rs equivalent to the 'appropriate limit' under section 9 of the FOI(S)A. A Scottish public authority is expected to deal with all requests for environmental information regardless of the potential cost or charge to be made. Similarly there are no special provisions for dealing with requests that appear to be part of an organised campaign as under FOI(S)A. Such requests are to be expected and dealt with in the usual way. Where the applicant makes a request which is clear but which is too large to be reasonable, or where the applicant specifies a cost ceiling the authority should consider providing an indication of what information could be provided within reason or within the cost ceiling.

Timeliness in Dealing with Requests for Information

24. Under EI(S)Rs there are stricter time limits than under FOI(S)A, for cases where the public interest has to be balanced.

25. Scottish public authorities are required to comply with all requests for information as soon as possible and they should not delay responding until the end of the 20 working day period under regulation 4(2)(b) if the information could reasonably have been provided earlier.

26. Scottish public authorities should aim to make all decisions as soon as possible and in any case within 20 working days, including in cases where a public authority needs to consider where the public interest lies. However, there may be some instances where, because of the complexity or volume of the information requested, it will not be possible to deal with an application within 20 working days. In such cases a Scottish public authority is expected to inform the applicant of this as soon as possible and within 20 working days, and must in any case comply with or refuse the request within 40 working days. Scottish authorities may find it helpful to formulate a policy about how to apply the provision on making a time extension. Where the Keeper of Records of Scotland sends a Scottish public authority a copy of a request for information contained in a record which he holds, the authority must inform the Keeper of its decision within such time as will make it practicable for him to respond to the applicant.

27. It is for the body receiving a request to meet the timetable. Monitoring the timeliness of responses is easiest where requests for information are in writing. Where requests for environmental information are made other than in writing, for example by telephone or in person, Scottish public authorities will need a system for recording the request. This may, for example, involve making a written note of the request and asking the applicant to confirm its accuracy.

Charges

28. The EI(S)Rs does not require charges to be made, but Scottish public authorities have discretion to make a reasonable charge for environmental information, unless they are providing access to a public register or if the applicant examines the information in situ, for example, at the offices of the Scottish public authority or a drop in library provided by the public authority. In these cases, access to the information shall be free of charge. When making a charge, whether for information that is proactively disseminated or provided on request, that charge must not exceed the cost of providing the information unless that public authority is entitled to levy a market-based charge for the information.

29. Many of the Scottish public authorities subject to these regulations will become subject to the Fees Regulations made under sections 9 of the FOI(S)A. In these cases, it may be appropriate for them to apply the same fee structure up to the 'appropriate limit' to requests to provide environmental information taking into account all the circumstances of the request so long as that fee would, in their view, be reasonable for the supply of that information. The procedure for 'stopping the clock' while waiting for the fee to be paid will not be appropriate. The authority will also need to set out its charges for any environmental information above the "appropriate limit." A schedule of charges should be made available in the same way as for FOI(S)A requests.

30. Scottish public authorities should ensure that any charges they make in cases falling outside those covered by the Fees Regulations are reasonable, and in accordance with EI(S)Rs.

Transferring Requests for Information

31. A request can only be transferred where a Scottish public authority receives a request for environmental information that it does not itself hold and which is not held by any other person on its behalf. If a Scottish public authority in receipt of a request holds some of the information requested, a transfer can only be made in respect of the information it does not hold but is held by another public authority.

32. Scottish public authorities should bear in mind that "holding" environmental information under the EI(S)Rs includes holding a copy of a record produced or supplied by another person or body. Where information is held on behalf of another person or body it will generally be appropriate to consult on whether the environmental information requested should be supplied - see also section on 'consultation with third parties'. Special provisions apply to the National Archives and other public record holding bodies under regulation 12.

33. The Scottish authority receiving the initial request must always deal with it in accordance with the EI(S)Rs in respect of such information relating to the request that it holds. The authority should also advise the applicant that it does not hold part of the requested information, or all of it, whichever applies. But before doing this, the authority must be certain as to the extent of the information relating to the request that it holds itself.

34. If the Scottish authority to whom the initial request was made believes that some or all of the information requested is held by another Scottish public authority, the authority should consider what would be the most helpful and expeditious way of assisting the applicant with his or her request. In most cases this is likely to involve:

  • contacting the applicant and informing him or her that the information requested may be held by another Scottish public authority;
  • suggesting that the applicant re-applies to the authority which the original authority believes to hold the information;
  • providing him or her with contact details for that authority.

35. However, in some cases the Scottish authority to whom the original request is made may consider it to be more appropriate to transfer the request to another authority in respect of the information which it does not hold. In such cases, the Scottish authority should consult if necessary the other authority with a view to ascertaining whether it does hold the information and, if so, consider whether it should transfer the request to it. A request, or part of a request should not be transferred if there is any reason to doubt that the second authority holds the information. When consulting a second authority the identity of the person requesting the information should not be disclosed unless that person has agreed to this.

36. Before transferring a request for information to another authority, the Scottish authority should consider:

  • whether the transfer is appropriate, and if so
  • whether the applicant is content for the request to be transferred

The Scottish authority should only transfer the request to another authority with the applicant's consent.

37. Where a request or part of a request is transferred from one Scottish public authority to another, the receiving authority must comply with its obligations under the EI(S)Rs in the same way as it would for a request which is received direct from an applicant. The time for complying with such a request will be measured from the day that the receiving authority receives the request.

38. All transfers of requests should take place as soon as is practicable, and the applicant should be notified as soon as possible once this has been done by issuing a refusal letter under regulation 6.

39. Where a Scottish public authority is unable either to advise the applicant which public authority holds, or may hold, the requested information or to facilitate the transfer of the request to another authority (or considers it inappropriate to do so) it should consider what advice, if any, it can provide to the applicant to enable him or her to pursue his or her request. In this event the public authority should also issue a refusal letter in accordance with regulation 6. The refusal letter should explain that the public authority does not hold the information.

Consultation with Third Parties

40. Scottish public authorities must always remember that unless an exception provided for in the EI(S)Rs applies in relation to any particular information, they will be obliged to disclose that information in response to a request.

41. Unlike FOI(S)A, the EI(S)R contains no 'absolute' exceptions. Moreover, lack of consent of a third party does not necessarily preclude disclosure under EI(S)R.

42. A Scottish public authority may consider that consultation is not appropriate where the cost of consulting with third parties would be disproportionate because, for example, many third parties are involved or there has been earlier consultation on the status and sensitivity of the information. In such cases, the authority should consider what is the most reasonable course of action for it to take in light of the requirements of the EI(S)Rs and the individual circumstances of the request.

43. Where the consent of a number of third parties may be relevant and those parties have a representative organisation that can express views on behalf of those parties, the Scottish authority may, if it considers consultation appropriate, consider that it would be sufficient to consult that representative organisation. If there is no representative organisation, the authority may consider that it would be sufficient to consult a representative sample of the third parties in question.

44. The fact that the third party has not responded to consultation does not relieve the Scottish authority of its duty to disclose information under the EI(S)Rs, or its duty to reply within the time specified in the EI(S)Rs.

45. In all cases, it is for the Scottish public authority that received the request, not the third party (or representative of the third party) to determine whether or not information should be disclosed under the EI(S)Rs. A refusal to consent to disclosure by a third party does not, in itself, mean information should be withheld. In each case the public interest must be balanced. If the public interest in making the information available outweighs the public interest in withholding it, the information should be disclosed.

Environmental Information Regulations and Public Sector Contracts

46. When entering into contracts Scottish public authorities should refuse to include contractual terms that purport to restrict the disclosure of environmental information held by the authority and relating to the contract beyond the restrictions permitted by the EI(S)Rs. Scottish public authorities cannot "contract out" of their obligations under the regulations. This means that they cannot sign a contract that gives an undertaking to a private firm (or anyone else) that they will not comply with their obligations under the regulations. Unless an exception provided for under the EI(S)Rs is applicable in relation to any particular information and the balancing of public interest favours refusal, a Scottish public authority will be obliged to disclose that information in response to a request, regardless of the terms of any contract.

47. When entering into contracts with non-public authority contractors, Scottish public authorities may be under pressure to accept confidentiality clauses so that information relating to the terms of the contract, its value and performance will be exempt from disclosure. Scottish public authorities should reject such clauses wherever possible. Where, exceptionally, it is necessary to include non-disclosure provisions in a contract, an option could be to agree with the contractor a schedule to the contract that clearly identifies information that should not be disclosed. Scottish public authorities will need to take care when drawing up any such schedule, and be aware that any restrictions on disclosure provided for could potentially be overridden by their obligations under the EI(S)Rs, as described above.

48. In any event, Scottish public authorities should not agree to hold information 'in confidence' which is not in fact confidential in nature. Scottish authorities should be aware that certain exceptions including those for commercial confidentiality, personal data, and voluntarily supplied data, are not available when the information requested is about emissions into the environment.

49. Any acceptance of confidentiality provisions must be for good reasons and capable of being justified to the Scottish Information Commissioner.

50. It is for the Scottish public authority to disclose information pursuant to the EI(S)Rs, and not the non-public authority contractor unless that contractor is itself a body subject to the EI(S)Rs. However, the Scottish public authority may wish to protect from disclosure by the contractor, by appropriate contractual terms, information which the authority has provided to the contractor that in their view may be excepted from disclosure under the EI(S)Rs, by appropriate contractual terms. In these cases, contracts or other working arrangements should be made to ensure appropriate consultation about the handling of requests for information exchanged between the parties. Any such constraints should be drawn as narrowly as possible, and according to the individual circumstances of the case. Scottish public authorities should not impose terms of secrecy on contractors.

51. Under the EI(S)Rs, some contractors including Scottish public utilities that have been privatised are subject to the requirements of the EI(S)Rs.

Accepting Information in Confidence From Third Parties

52. A Scottish public authority should only accept information from third parties in confidence if it is necessary to obtain that information in connection with the exercise of any of the Scottish authority's functions and it would not otherwise be provided. Even in these circumstances it will be necessary to explain the relevance of the public interest test and the fact that there could be circumstances in which the public interest in responding to a request outweighs the desire for confidentiality of a third party. In addition, Scottish public authorities should not agree to hold information received from third parties "in confidence" which is not confidential in nature. Again, acceptance of any confidentiality provisions must be for good reasons, capable of being justified to the Scottish Information Commissioner.

Consultation with Other Administrations

53. Scottish public authorities should consult with any relevant public administrations before disclosing information provided by or directly concerning that administration, except where:

  • the views of the other administration can have no effect on the decision of the Scottish authority, for example, where there is no applicable exception so the information must be disclosed under EI(S)Rs;
  • in the circumstances, consultation would be too costly or time consuming.

54. Similarly, the other administrations should consult with the relevant Scottish public authority before disclosing information provided by or directly concerning that authority, except where the views of the Scottish public authority can have no effect on the decision whether to disclose, or where consultation would be disproportionate in the circumstances.

Refusal of Request

55. Where a request for information is refused due to an exception, the EI(S)Rs requires that the Scottish authority notifies the applicant which exception has been claimed, and why that exception applies. Scottish public authorities should not, unless the statement would involve the disclosure of information which would itself be withheld in accordance with the EI(S)Rs, merely paraphrase the wording of the exception. The authority should state clearly in the decision letter why they have decided to apply that exception in the case in question. The EI(S)Rs also requires Scottish authorities, when withholding information, to state the reasons for claiming that the public interest in maintaining the exception outweighs the public interest in disclosure. Scottish public authorities should specify the public interest factors - for and against disclosure - that they have taken into account before reaching the decision, unless the statement would involve the disclosure of information which would itself be withheld in accordance with the EI(S)Rs.

56. For monitoring purposes Scottish public authorities should keep a record of all applications where either all or part of the requested information is withheld. In addition to a record of the numbers of applications where information is withheld, senior managers in each Scottish public authority need information on each case to determine whether cases are being properly considered, and whether the reasons for refusals are sound. This could be done by requiring all staff that refuse a request for information to forward the details to a central point in the organisation for collation. Details of information on complaints about applications which have been refused - see next section on "complaints procedure" - could be collected at the same central point.

Complaints Procedure

57. Each Scottish public authority must have a complaints procedure in place from the date the EI(S)Rs come into force. The complaints procedure may then be used by any person who considers that their request has not been properly handled, or who are otherwise dissatisfied with the outcome of the consideration of their request, and where the issue is such that it cannot be resolved informally in discussion with the official dealing with the request. Under regulation 14, the enforcement and appeal provisions of the FOI(S)A will apply in respect of a complaint made after 1st January 2005.

58. When communicating any decision made in relation to a request under the EI(S)Rs which contains a refusal, Scottish public authorities are obliged, under regulations 6(e) to notify the applicant of his or her right of complaint. The Scottish public authority should provide details of its own complaints procedure, including how to make a complaint and inform the applicant of the right to appeal to the Scottish Information Commissioner under regulation 14 and section 47 of the FOI(S)A if he or she is still dissatisfied following the Scottish authority's review.

59. Any written reply from the applicant, including one transmitted by electronic means, expressing dissatisfaction with a Scottish authority's response to a valid request for information should be treated as a complaint, as should any written communication from a person who perceives the Scottish authority is not complying with its publication scheme where it has one. These communications should be handled in accordance with the authority's reconsideration procedure pursuant to regulation 13, even if the applicant does not state his or her desire for the Scottish authority to review their decision or their handling of the application.

60. The review procedure should be a fair and impartial means of dealing with handling problems and reviewing decisions taken pursuant to the EI(S)Rs, including decisions taken about where the public interest lies. It should be possible to reverse or otherwise amend decisions previously taken. Complaints procedures should be clear and not unnecessarily bureaucratic. They should be capable of producing a prompt determination of the complaint.

61. The review should be handled by a person who was not a party to the original decision, where this is practicable. If this is not possible, for example in a very small Scottish public authority, the need for impartiality and fairness should be particularly in mind and the circumstances should be explained to the applicant when the review decision is notified. Where the decision on the application was taken by someone in a position where it is suggested that a review cannot realistically be undertaken, the Scottish public authority should still consider how best to conduct the internal review procedure, and inform the applicant that, whatever is decided, the applicant will be free to approach the Scottish Information Commissioner.

62. In all cases, complaints should be acknowledged and the complainant should be informed of the Scottish authority's target date for determining the complaint. Where it is apparent that determination of the representations will take longer than the target time, for example because of the complexity of the particular case, the Scottish authority should inform the applicant and explain the reason for the delay. The complainant should always be informed of the outcome of his or her complaint.

63. Scottish authorities must consider each complaint and decide whether they have complied with their requirements under EI(S)Rs and respond to the complainant within 40 working days from the time when the complaint was received.

64. Records should be kept of all complaints and of their outcome. Scottish authorities should have procedures in place for monitoring complaints and for reviewing, and, if necessary, amending, procedures for dealing with requests for information where such action is indicated by more than occasional reversals of initial decisions.

65. Where the outcome of a complaint is that information should be disclosed which was previously withheld, the information in question should be disclosed as soon as practicable and the applicant should be informed how soon this will be.

66. Where the outcome of a complaint is that the procedures within a Scottish authority have not been properly followed by the authority's staff, the authority should apologise to the applicant. The Scottish authority should also take appropriate steps to prevent similar errors occurring in future.

67. Where the outcome of a complaint is that an initial decision to withhold information is upheld, or is otherwise in the Scottish authority's favour, the applicant should be informed of his or her right to apply to the Scottish Information Commissioner, and be given details of how to make an application, for a decision on whether the request for information has been dealt with in accordance with the requirements of the EI(S)Rs.

General

Scottish Information Commissioner - Practice Recommendations

68. Regulation 16 of the EI(S)Rs provides that the general function of the Scottish Information Commissioner under the FOI(S)A shall apply under EI(S)Rs. The Scottish Information Commissioner has a responsibility under section 43 of the FOI(S)A to promote the observance of this Code by Scottish public authorities. If the Commissioner is of the opinion that the practice of a Scottish public authority in relation to the exercise of its functions under the EI(S)Rs does not conform to that proposed in this Code of Practice, the Commissioner may under section 44 of the Act serve the public authority with a recommendation practice. The notice will specify the steps which the Commissioner considers need to be taken by the public authority to conform with the Code.

69. A practice recommendation must be given in writing and must refer to the particular provisions of the Code of Practice with which, in the Commissioner's opinion, the public authority's practice does not conform. A practice recommendation is simply a recommendation and cannot be directly enforced by the Scottish Information Commissioner. However, a failure to comply with a practice recommendation may lead to a failure to comply with the EI(S)Rs. Further, a failure to take account of a practice recommendation may lead to reference to a court under section 53 of FOI(S)A or to an adverse comment in a report to Parliament by the Commissioner.

70. It should be noted that the provisions of the EI(S)Rs updating the duty to make environmental information available and the Commissioner's powers to issue practice recommendations in relation to the handling of individual requests for information under the FOI(S)A right of access will take effect on [1 st January 2005].

Page updated: Thursday, May 25, 2006