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Enforcement Arrangements
6. Regulation 17 applies the provisions of Part 4 of FOISA to the EISRs, with appropriate modifications, as they apply in the Act.
7. As regards good practice,
section 43 of the FOISA places a duty on the Scottish Information Commissioner to promote good practice by Scottish public authorities ("good practice" includes compliance with the provisions of this Code); and
section 44 of the FOISA 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 this Code.
8. As regards advice and assistance,
regulation 9 of the EISRs places a duty on Scottish public authorities to provide advice and assistance to applicants and prospective applicants. The Scottish Information Commissioner may determine whether or not Scottish public authorities have complied with that duty in any particular case by reference to their compliance with this Code; and
if it appears to the Scottish Information Commissioner that a Scottish public authority has failed in its statutory duty, the Scottish Information Commissioner may issue a practice recommendation under section 44 of FOISA. The Commissioner may also include a reference to such a failure in a decision notice issued under section 49 of FOISA.
9. As regards application for a decision by the Scottish Information Commissioner.
where an application for a decision has been made to the Commissioner under regulation 17 of EISRs and section 47 of the FOISA, the Commissioner may serve an information notice on the authority under section 50 of FOISA, requiring it to provide information relating to its conformity with the regulations;
under the provisions of section 53 of the FOISA, if the Scottish public authority fails to comply with an information notice, the Commissioner may certify in writing to a court that the Scottish 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 Scottish public authority and after hearing any statement that may be offered in defence, may deal with the authority as if it had committed a contempt of court; and
Under section 49 of FOISA the Commissioner must issue a decision notice unless the case is abandoned or withdrawn or considered to be frivolous or vexatious. The Commissioner has the power to effect settlement between the applicant and the public authority. If the case is settled, no decision notice will be issued, but the applicant will be asked to withdraw his/her application.
10. As regards compliance by Scottish public authorities more generally, when the Commissioner reasonably requires information
- for the purpose of determining whether a Scottish public authority has complied or is complying with the provisions of the Regulations or
- for the purpose of determining whether the practice of a Scottish public authority conforms with this Code of Practice;
the Commissioner may serve an information notice on the authority requiring information regarding its compliance with the Regulations or Code and may pursue under section 53, if the authority fails to comply with the notice; and
if it appears to the Commissioner that the authority has not complied with the requirements of the Regulations or with this Code he may issue an enforcement notice requiring steps to be taken so as to comply.
11. 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 prospective applicants, e.g. the Disability Discrimination Act 1995 or the Race Relations Act 1976 (as amended by the Race Relations (Amendment) Act 2000).
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