The Scottish Government

Main Features of the Freedom of Information (Scotland) Act 2002

1. The main features of the Act are:

Act Ref.

• the establishment of a general right of access to recorded information of any age held by a wide range of bodies across the public sector in Scotland, subject to certain conditions and exemptions;

1

• in relation to most exempt information, the information should only be withheld if the public interest in withholding it is greater than the public interest in releasing it;

2(1)(b)

• the creation of a new office of Scottish Information Commissioner (the Commissioner), with wide powers to promote good practice and to enforce the rights created in the Act;

42

• a duty on each Scottish public authority to adopt and maintain a publication scheme, approved by the Scottish Information Commissioner. Publication schemes must specify the classes and manner in which information is, or is intended to be, published, together with an indication of whether the information will be available free of charge or on payment of a fee;

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Duty to provide advice and assistance

2. The Act places a duty on public authorities to provide advice and assistance to applicants and potential applicants as far as it is reasonable to expect the authority to do so. An authority following the guidance in this Code in this respect will be deemed to have complied with its duty to provide advice and assistance. This is dealt with in more detail in Part II.

3. Staff working in public authorities in contact with the public should be aware that many applicants may be unaware of their rights or unfamiliar with the legislation and staff should be prepared to explain the key provisions of the Act to potential applicants who might benefit from assistance. Staff should also be able to explain the procedures which the authority has put in place for complying with the Act (and to provide guidance on access to records for which the authority knows there is particular demand). Authorities may find it helpful to establish a "disclosure log", i.e. a publicly available description of some or all of the information which the authority has previously released under the Act. Staff should be familiar with any such log and be able to provide guidance to potential applicants on how to make use of it.

4. Authorities may wish to consider designating a specific individual as Information Officer, through whom all requests for information could be channelled, or, if appropriate, setting up a discrete unit to handle requests. (Larger or more devolved or complex authorities may wish to consider designating a number of specific individuals to cover the scope of the organisation.) This does not detract in any way from the responsibility of staff generally to provide advice and assistance to applicants.

5. Staff should also be aware that, in giving assistance, an applicant's reasons for requesting the information are not relevant. Applicants should not be given the impression that they are obliged to disclose the nature of their interest or that they will be treated differently if they do so.

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6. Where an authority falls short of the Code's guidance on providing advice and assistance, it should be prepared to explain to the Commissioner why it considered the level of advice and assistance provided to be reasonable in the circumstances. Authorities should note that where there is a significant departure from the approach to the provision of advice and assistance, as set out in this code, they may be breaching their statutory duties under section 15.

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Means of providing information - Equality Issues

7. Equality issues have an impact on the provision of information under the Act. The Act specifically mentions disability and authorities should also bear in mind their duties - statutory or otherwise - to groups with particular needs. Authorities should note, when considering the means of providing requested information, that whereas in almost all circumstances a written response will be appropriate, they should have due regard to their existing duties under the Disability Discrimination Act 1995 (DDA) and other legislation. These duties are summarised at Annex 2. Authorities should be flexible in their approach, interpreting broadly the provisions of the DDA. They should also ensure that, as a matter of practice, disabled applicants are provided with information in the format or means they prefer, except in exceptional and extreme circumstances. The cost of responding to any FOI request in an alternative format should not, however, be passed on to the applicant.

8. Authorities are obliged to deal with FOI requests in the same way as they discharge any of their other statutory duties. For example, where a local authority decides to disseminate information in an area with a high proportion of residents from a particular ethnic community, that authority, under existing equality legislation, should consider translating the information into the language of that community. Different considerations may apply where it is a question of disclosing information to an individual; the Act does not require information to be translated before release but authorities will want to consider their obligations under race relations and other legislation.

9. Many people who use the web have disabilities of one form or another, which could be sensory or motor disabilities. It is very important that any web page produced by public sector bodies is as available to these users as to any other.

It is now mandatory that government websites comply with the minimum level of the World Wide Web Consortium's Web Accessibility Initiative. More information about access technology can be found at:

http://e-government.cabinetoffice.gov.uk/Resources/WebGuidelines/fs/en

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Publication Schemes

10. All Scottish public authorities must adopt and maintain a "publication scheme", publish information in accordance with it and review the scheme from time to time. The Commissioner will approve a scheme covering each public authority, and has published Guidance on the preparation, submission and maintenance of such schemes at:

http://www.itspublicknowledge.info/pscheme.htm

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The publication scheme will set down:

• the classes of information which are published or will be published;
• the manner in which the information of each class is, or is intended to be published; and,
• whether the information is, or is intended to be, available free of charge or on payment of a fee.

23(2)

11. The routine publication of more information is likely, over time, to lead to a reduction in the number of individual requests for specific pieces of information due to the operation of the exemption applicable in cases where the information is otherwise accessible. Authorities, therefore, have an incentive to include more information in their publication schemes as this will obviate the need to provide that information in response to a request under section 1. However, it would be good practice for authorities to keep a log of requests made for information which is not currently included in their publication schemes. Authorities could then consider the need to add that class of information as a new class to be covered by the scheme.

12. The publication scheme should also include details of the authority's procedures for handling requests for information. The procedures should include an address or addresses (including an e-mail address where possible) to which applicants may direct their request. A telephone number and fax number should also be provided and, where appropriate, the name of an individual who can provide assistance.

Copyright

13. Public authorities should be aware that information provided under the Act may be subject to copyright protection. Supplying information under the Act does not convey a right to re-use that information in a way that would infringe copyright, for example by making multiple copies or issuing copies to the public or for inclusion in commercial publications. These activities will often involve obtaining the permission of the authority that provided the material. Permission is generally granted in the form of a copyright licence. HMSO and the Office of the Queen's Printer for Scotland (OQPS) have issued guidance which explains the distinction between access and re-use in more detail.

14. Copyright works made by central government qualify for Crown copyright protection; however, various categories of Crown copyright material can be reproduced without a formal licence. Where a formal licence is required then in the majority of cases this can be obtained by applying for a Click-Use licence online. OQPS website provides details of categories of Crown copyright material where this applies, including examples of information where the copyright has been asserted but waived. Such information can be copied or reproduced without formal permission provided it is copied accurately, is not used within a misleading context and provided that the source of the material is identified and the copyright status acknowledged. This includes the following: government press notices, legislation, ministerial speeches, consultation documents, documents featured on official websites (except where expressly indicated otherwise), headline statistics and unpublished public records. More details of these categories and the Click Use licensing arrangements can be found at: http://www.oqps.gov.uk/copyright/pubcopyright_gn.htm

Training

15. All written (and electronic) requests for information submitted to Scottish public authorities should be dealt with in accordance with the provisions of the Act. It is, therefore, essential that all relevant personnel are familiar with its provisions, the associated Codes of Practice and any guidance on good practice issued by the Scottish Information Commissioner. Authorities should ensure that appropriate staff training is provided. In planning and delivering training authorities should be aware of other provisions affecting the disclosure of information such as Environmental Information Regulations and the interaction between the Act and the Data Protection Act. (See also Annex 1)

16. The Executive has commissioned the production of a training package which is capable of being adapted by Scottish public authorities to meet their specific needs. This is available at:

http://www.scotland.gov.uk/about/LPS/LPS-CPS/00018775/introduction.aspx

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Provision of advice to persons making requests for information

17. Every public authority must be prepared to provide advice and assistance to those making requests for information. The guidance set out below should not be regarded as exhaustive.

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18. Any request for information must be made in writing or any other format capable of being used for subsequent reference (this includes requests transmitted by electronic means, including by fax or e-mail or through an authority's web-site). Where someone is unable to frame his or her request in such a way, the authority should ensure that appropriate assistance is given to enable that person to make a request for information. While there is a general duty to provide advice and assistance to those making requests for information, particular consideration should be given to those with a disability or with communication difficulties.

19. In considering what assistance would be appropriate in the circumstances, the request should be discussed with the applicant and practical advice offered. This might include, for example, offering to take a note of the request over the telephone and then sending the note to the applicant in their preferred format for confirmation. In this case, the written note of the telephone request, once verified by the applicant, would constitute the request for information. In such instances the authority should ensure that the applicant is also supplied with a stamped addressed envelope to assist in lodging the request. The statutory time period for compliance would begin upon receipt of the verified note or of alternative confirmation from the applicant. Where facilities are available, the call itself could be taped, with the applicant's consent, which would then constitute the request for information. Alternatively, the authority may suggest that the request is recorded and forwarded or that another person or agency may be able either to assist them with the application or to make the application on their behalf. The key issue for authorities is the need to respond flexibly to requests for information, and to provide the necessary level of advice and assistance to all applicants.

8(1)(a)

20. Where the applicant has provided insufficient information to enable the authority to identify and locate the information sought, or where the request is unclear, the authority should help the applicant to describe more clearly and particularly what information they require. Authorities should be aware that the aim of providing assistance is to clarify the nature of the information being sought not to determine the applicant's aims or motivation. Where more information is needed to clarify the request, it is important that the applicant is contacted as soon as possible, preferably by telephone, fax or e-mail. The 20 day period will run from the date of clarification but authorities should note that the Commissioner will take a hard stance against any authority that uses clarification as a means of delaying dealing with an application. Appropriate help could include:

• providing an outline of different kinds of information which might meet the terms of the request;
• providing access to detailed catalogues and indexes, where these are available, to help the applicant to see the nature and extent of the information held by the authority;
• providing a general response to the request setting out options for further information which could be provided on request; or
• an indication of what information could be provided within the cost ceiling, in instances where a request would be refused on cost grounds.

This list is not exhaustive and authorities should always be flexible in offering advice and assistance taking into account the circumstances of each individual case.

21. In seeking to clarify what is sought, authorities should always 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.

22. If, after all reasonable assistance has been given, the applicant still cannot describe the information requested in a way which enables the authority to identify and locate it, then the authority is not expected to ask for further clarification. However, it must disclose any information relating to the application which has been found and which can be disclosed under the provisions of the Act (i.e. is not subject to any exemption). In these circumstances, the authority should explain why it cannot take the request any further and provide details of its own review procedure and the applicant's rights to apply to the Commissioner for a decision.

10(1)(b)

Vexatious Requests

23. An authority is not obliged to comply with a vexatious request. The Act does not define the term vexatious and, in the first instance, it will be for the authority to decide whether requests are vexatious. However, irritation or nuisance caused by the applicant or by receipt of the request should play no part in an authority's consideration of whether or not an application is vexatious. Authorities should be prepared to provide justification for their approach to the Commissioner, and their decisions in this respect should, therefore, be based on clear-cut reasoning. Factors which an authority might take into account could include:

• whether the request has already been rejected on appeal to the Commissioner and the applicant knows this;
• whether there has been unreasonable refusal or failure to identify sufficiently clearly the information required;
• whether there has been unreasonable refusal or failure to accept documented evidence that the information is not held;
• whether the request can be shown to be clearly intended to disrupt the authority's work rather than for the purpose of obtaining information.

24. This list is not exhaustive but the power to refuse to respond to a request on the grounds contained in section 14 of the Act should be used sparingly, and should not be abused simply to avoid dealing with a request for information.

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Repeated Requests

25. Under the same section, the Act also provides that an authority, which has already complied with a request for information from a person, can refuse to comply with a subsequent request from that person which is identical or substantially similar unless there has been a reasonable period of time between the making of the request complied with and the making of the subsequent request. If the information has changed between applications, this is unlikely to be viewed as a repeated request. For example, requests could be made once per week for up to date figures. Public authorities who receive what they consider to be repeat requests have the option of making the information available in their publication schemes. What constitutes a "reasonable period of time" will depend on the circumstances of the case but, as with decisions about vexatious requests, authorities should be prepared to justify their reasoning to the Commissioner.

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26. Where an authority considers a request to be vexatious or repeated, it is not required to comply with a request. Neither is it obliged to conduct a review if the grounds for the initial refusal were made under section 14. However, in either case, notice must be given to the applicant of the rights of application to the Commissioner and of appeal.

21(9)

47(1), 56

Timeliness in dealing with requests for information

27. Public authorities should comply with a request for information as soon as possible but must, in any event, comply not later than 20 working days after receipt of the request. It is essential that authorities respond to requests in good time. This is particularly important where it is clear that the requested information is not held by them and the applicant needs to direct the enquiry elsewhere, or if the applicant has a disability and requests information in an alternative format or by alternative means.

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Handling multiple requests for information or requests which appear to be part of an organised campaign

28. Where an authority is not required to comply with a number of related requests because the cumulative cost of meeting these requests would exceed the cost threshold (as set out in Fees Regulations: see also paras 59-61 and Annex 3) and where the information could have been disclosed had the cost not exceeded this limit, the authority should consider whether the information can be disclosed in another, more cost-effective way. For example, the authority should consider whether the information is such that publication on the authority's web-site, and a brief note of the web-site reference to each applicant, would bring the cost within the limit.

29. Where an authority does not disclose the information in another, more cost-effective way, it should be able to justify its approach to the Commissioner.

12(1)

12(4)

Transferring requests for information

30. The Act does not include procedures for the transfer of requests from one authority to another, and it will not generally be appropriate for authorities to do so. Where a request has been made for information which is not held by an authority, that authority should inform the applicant promptly that it is unable to provide the information sought. The most appropriate means of doing this will be by a notice under section 17 of the Act (i.e. notice that information is not held).

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31. Where a public authority does not hold the requested information but is aware that it is held by another public authority, consideration should be given as to the most helpful way of assisting the applicant. It may be sufficient simply to provide the applicant with contact details of the authority holding the information and to suggest that the applicant re-applies to that authority. However, applicants should only be redirected in this way if the authority receiving the original request has confirmed that the information sought is, indeed, held by another public authority, and if securing that confirmation does not unreasonably delay a response (under s.17) to the applicant. An authority should bear in mind that where it possesses a copy of a record produced by another authority it "holds" it for the purposes for the Act and should deal with the request itself and not transfer it to the originating authority.

1(4)

32. When an applicant has made clear that the request for information should be forwarded to another authority if all or part of the material sought is not held by the public authority to which the request has been made, it will normally be of assistance to transfer the request:-

• having confirmed that another authority holds the relevant information; and
• having advised the applicant in writing of the transfer, the revised contact details and that the statutory period for dealing with the request will run from receipt of the transferred request.

33. In instances where an authority holds most of the information requested of it, and can establish that another public authority holds the remainder of the requested information, consideration should be given as to whether that additional information can be supplied and included in one response to the applicant. This is only likely to be of assistance to an applicant where there is no significant delay in responding as a result, and where no additional costs are involved.

34. The transfer of requests from one authority to another may be difficult to administer and may also have implications for authorities' responsibilities under the Data Protection Act 1998. In particular, an applicant who makes a request to one authority may have reasons for not wishing the request to be circulated to other authorities; the request may contain personal information and the identity of the applicant may itself be personal information. Further, it is important that applicants are aware who is dealing with their request for information, when the statutory timescale for responding to their request begins, and what their rights are under the Act. In most instances, therefore, the guidance provided at paragraphs 30 to 32 above should form the framework for responses where information sought is not held.

Information provided in Confidence

35. By virtue of sections 36(2) and 2(2)(c) of the Act any information the disclosure of which would constitute an actionable breach of confidence attracts an absolute exemption. The Act does not require that the exemption be subject to the public interest test but it is generally accepted in common law that an obligation of confidence cannot apply to information the disclosure of which is necessary in the public interest.

What is confidentiality?

36. A duty of confidence will arise when one person imparts information to another in the expectation that the information will only be used or disclosed in accordance with his or her wishes. If there is a breach of confidence the person who provided the information or any other person affected by the breach may be able to take action in the courts.

37. There are three requirements for an action for breach of confidence:-

• that the information must have the necessary quality of confidence;
• that it must have been communicated in circumstances imposing a duty of confidence; and
• that there must be unauthorised use of the information to the detriment of the party communicating it.

38. In order to decide whether an obligation of confidence has arisen in a particular case, authorities will need to consider both the nature of the information itself and the circumstances under which the information was given. There are essentially two circumstances in which an obligation of confidence can arise:-

• where there is an express term in a contract or agreement, whether written or verbal, that confidentiality will apply; or

where the nature and circumstances of the dealings between parties imply confidentiality, such as advice between a patient and health practitioner, or client and social worker.

36(2)

2(2)(c)

39. The duty of confidence, however, is not absolute and the courts recognise three broad circumstances where confidential information can be disclosed: disclosures with consent; disclosures required by law and disclosures where there is an overriding public interest.

40. Authorities should always consider carefully any request to hold information in confidence and should make clear that they cannot guarantee that information will not be disclosed unless the requirements of section 36(2) (or some other exemption) are met.

2(1)(b)

Public Sector Contracts

41. When entering into contracts (in this context "contract" should be read as including any other form of agreement or undertaking) public authorities should refuse to include terms which restrict the disclosure of information held by the authority and relating to the contract beyond the restriction permitted in the Act i.e. the information constitutes a trade secret or its disclosure under the Act would, or would be likely to, prejudice substantially the commercial interests of any person.

42. Particular care is needed in the treatment of the above. Companies will need to be confident that an authority will apply its general commitment to openness in a way which does not damage their legitimate interests. Public authorities should, ideally before accepting information regarded by the company as commercially sensitive, take steps to ensure that the company understands the possible implications of the Act. Provisions included in the contract could make clear the need to comply with the Act and to account for public expenditure.

43. When entering into a contract, pressure may be put on authorities to accept confidentiality clauses so that information relating to particular terms of the contract will be exempt; for example, its value and performance, arrangements for monitoring progress and performance under the contract, incentives for early completion or penalty clauses for failing to meet targets. Public authorities should consider carefully whether the information is, in fact, confidential and also the public interest in disclosing any or all of the terms. Public authorities should therefore resist such clauses, wherever possible.

44. Where, exceptionally, it is necessary to include non-disclosure provisions in a contract, the public authority could agree with the contractor a schedule of the contract which clearly identifies both information which should not be disclosed and information which will be released. Any acceptance of such confidentiality provisions must be for a good reason, be capable of being justified to the Commissioner and include the proviso that information which is not, in fact, exempt under the terms of the Act or whose disclosure is required on public interest grounds, may have to be disclosed regardless of any agreement.

45. It is for the public authority to disclose information - not for the contractor. However, an authority may wish to protect some information which it has provided to the contractor and which is exempt under the Act from disclosure by the contractor. In order to avoid unnecessary secrecy, any such constraints should be drawn as narrowly as possible and according to the individual circumstances of the case. Apart from such exceptional cases, authorities should not impose terms of secrecy on contractors.

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46. While the public interest will rarely justify disclosure of a trade secret, there will be circumstances where adverse commercial impacts are not a sufficient justification for non-disclosure. Where disclosure is necessary for the protection of public health, public safety or the environment, for example, such considerations may outweigh financial loss or prejudice to the competitive position of a third party.

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47. There may be cases where information has been received from a third party and to disclose that information without their prior consent would constitute an actionable breach of confidence. Where this may be the case, authorities should consider discussing with the third party whether the requested information is still to be regarded as confidential.

Consultation should take place where:

• the views of the third party may help the authority to determine whether an exemption under the Act applies to the information requested: or
• the views of the third party may help the authority to determine where the public interest lies.

Consultation will be unnecessary where:

• the authority does not intend to disclose the information in any case because of some other legitimate ground under the terms of the Act; or
• the views of the third party bear no influence on the decision of the authority, for example, where there is other legislation either preventing or requiring disclosure.

48. An authority is not relieved of its obligation to disclose information under the Act or its duty to reply within the statutory time should a third party fail to respond to consultation or fail to respond within the given time frame. However, in circumstances where disclosure of that information without the prior consent of the third party could constitute an actionable breach of confidence (see also para 37), authorities may wish to seek legal advice.

49. The general aim should be to facilitate more effective access to information about the procurement of public services. This will, in turn, encourage better internal management, greater accountability and best value within public authorities. Authorities may wish to consider including details of contracts in their publication schemes.

EU Procurement Regulations

50. The regulations implementing the Directives provide for compliance by authorities with a contractor's reasonable confidentiality requirements. The proposed new consolidated public sector procurement Directive (2004/18/EC) shortly to be adopted has a tighter confidentiality provision; it will prohibit the disclosure by contracting authorities of information which has been designated as confidential by contractors. However, this provision is stated to apply in accordance with national law so authorities should note that non-disclosure will still need to be brought within the confidentiality exemption in FOI.

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Designation as Scottish Public Authority

51. Where an authority arranges, under contract, for another person or body to provide services which are normally a function of that authority, the Act makes provision for the Scottish Ministers to designate that person or body as a public authority. The Scottish Ministers must consult the person or body before a decision to so designate is taken. Therefore, some non-public authority contractors may, in due course, be brought within the scope of the Act, albeit only in respect of the services provided under contract. Given the responsibilities associated with any such designation, it may be prudent for authorities to consider at an early stage in the procurement process, whether it would propose to the Scottish Ministers designation of that company under section 5 of the Act. It would be good practice to advise potential contractors early so that such an eventuality can be built into their plans. The authority will also need to review its own information requirements in such an event, so that it can still satisfy the requirements of accountability and transparency in carrying out its functions.

Accepting information in confidence from third parties

52. Information should only be accepted in confidence if it is necessary for the authority to obtain that information in order to carry out its function and it would not otherwise be provided or could not otherwise be obtained. Furthermore, authorities should not agree to hold information in confidence if it is clearly not confidential in nature. If an authority accepts a confidentiality provision, it must have a good reason for doing so and must be able to justify its decision to the Commissioner.

Consultation with the UK Government and non-devolved public bodies

53. Authorities should consult with the relevant UK Department before disclosing information provided by or directly concerning that administration, except where:

• the views of that department can have no effect on the decision of the authority. This may be the case where there is other legislation which requires the information to be disclosed or where there is no applicable exemption under the Act; or
• in the circumstances, consultation would be disproportionate.

Personal Data

54. When dealing with requests for personal data an authority should first of all determine whether the request falls under the FOI Act or under the Data Protection Act 1998. If the request is for personal data about the person requesting the information there is no right of access under the FOI Act. Such a request should be dealt with under the terms of the Data Protection Act 1998. If, however, the request is for personal data about someone other than the applicant i.e. third party data, the request should be dealt with under the FOI Act. There is an exemption in section 38 of the FOI Act if disclosure of the third parties personal data would breach any of the Data Protection principles.

5(2)(b)

Environmental Information Regulations

55. Authorities should be aware that requests for access to environmental information may need to be responded to under separate "environmental information regulations" (EIRs). The Environmental Information (Scotland) Regulations 2004 will replace the existing environmental information regulations of 1992 and 1998. The new regulations derive from European Directive 2003/4/EC, which in turn implements the UNECE Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters ("the Aarhus Convention"). Requests for information under EIRs should be dealt with in line with the Code of Practice issued under section 62 of the Act.

56. The new regulations align closely with the FOI regime in order to help Scottish public authorities administer the two regimes and to make it easier for the public to understand. However, there are some differences between the two regimes, primarily because of the need to implement fully the European directive. The following paragraphs set out the key differences and similarities between the existing and proposed new EIRs and between the EIRs and the provisions of the FOI (Scotland) Act 2002.

Main differences between old and new EIRs

• The 1992 regulations cover the UK - the 2004 regulations extend to Scotland only;
• Definitions of environmental information and the bodies that are affected are revised;
• In most cases the time limit which an authority has to respond to a request is reduced to 20 working days as compared to 2 months under the 1992 regulations;
• Scope to withhold information in relation to emissions to the environment is narrowed;
• A public interest test has been introduced; and
• The Scottish Information Commissioner will act as appellate authority in considering appeals by dissatisfied applicants.

Main differences between FOI and EIRs

• Requests for environmental information can be in any form;
• Additional bodies to those listed in FOI(S)A may be covered by EIR;
• A 40 day response time can apply when cases are complex and voluminous;
• Fees charging may work differently;
• The exemptions work in slightly different ways (e.g. in EIR there are no absolute exemptions.

Where the two overlap

• Both regimes are fully retrospective;
• An authority has 20 working days to respond to requests (in all but the most complex requests for environmental information);
• The Scottish Information Commissioner will enforce the regime and handle appeals;
• Authorities have a common duty to provide advice and assistance;
• Authorities are required to proactively publish as much information as possible.

57. Authorities should familiarise themselves with these 3 distinct pieces of legislation - FOI, DPA and EIRs as requests for information covered by each of these must be dealt with in slightly different ways.

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Information intended for future publication

58. An authority may withhold requested information if it is intended for publication within 12 weeks of the date of the request. However, because of unforeseen circumstances, the authority may not be able to adhere to that date. Once an authority becomes aware of a delay in the publication date, it should contact the applicant and explain both the reason for the delay and the revised date of publication (if known). Significant delay in publication would be likely to remove the ability to withhold information because it is intended for it to be published. If the applicant is not satisfied and requests a review of the authority's decision not to supply the information because of its future publication then the authority should consider complying with the request for review even if this has been made outside the statutory period of 40 working days specified in section 20 of the Act. Authorities have discretion to do this under section 20(6) of the Act.

27(1)

20

20(6)

Fees for the provision of information

59. The Act does not require charges to be made for the provision of information. However, public authorities have discretion to charge a fee in accordance with Fees Regulations made under the Act.

9,12,13

60. The Fees Regulations do not apply:

• to material made available under a publication scheme;
• to information which is reasonably accessible to the applicant by other means;

where provision is made by or under any other piece of legislation as to the fee that may be charged by the public authority.

23

25
9(7)

Public authorities should ensure that, in cases falling outside those covered by the Fees Regulation, any charges they make are in accordance with any other legislation and are within the terms of any relevant guidance issued by the Scottish Executive. Guidance on charging for the provision of information is attached at Annex 3.

61. Where the applicant indicates that he or she is not prepared to pay the fees notified in any fees notice issued, the authority should consider whether there is any information that may be of interest to the applicant which is available free of charge.

Monitoring

62 . Authorities should adopt appropriate systems to monitor their performance under the new arrangements. It will be for each public authority to determine what information can most effectively be recorded under its administrative procedures, while satisfying itself that it is complying with the law (and able to demonstrate this). Once the general right of access comes into force, all written or recordable requests for information can be classed as a FOI request, but monitoring all requests may be problematic for authorities. However, monitoring activities should generally include collecting:

• the numbers of requests under section 1(1) which have been refused and the reasons for the refusal;
• the numbers of fees which have been charged under sections 9, 12 and 13;
• the numbers of reviews which have been carried out under section 20 and 21 and the outcome of such reviews;
• instances when the time limit for reply has been exceeded and reasons.

This list is not exhaustive and, with experience, authorities may, in discussion with the Commissioner, agree upon a standard set of statistics which more aptly reflect their compliance.

13(4)