« Previous | Contents | Next »
Listen
The legal context
6. FOISA provides a general entitlement for anyone to request information that is held by Scottish public authorities. If it is held by the authority the information must be provided unless certain conditions or any of the 17 exemptions apply which are described in FOISA in sections 25 to 41. The application of these exemptions is not mandatory, and if a public authority chooses to do so it may still release the information. Some exemptions are subject to a 'public interest test', where the authority has to make a judgement about whether release would be in the best public interest despite the exemptions applying.
7. Eight of the most commonly used exemptions can be applied by public authorities to withhold information until it is 30 years old ("the 30 year exemptions"). If applied the information does not have to be provided to a requester until the time limit has expired. We propose to reduce this timescale to 15 years.
8. Section 57 of FOISA provides that records become 'historical records' after 30 years. Section 58(1) then sets out those exemptions which cannot apply once a record has become a 'historical record', ie at 30 years. Under section 59 of FOISA Scottish Ministers have the power to amend by order the definition of 'historical record' contained in section 57, by reducing the time period to less than 30 years.
9. The exemptions that would be affected by this amendment are listed below and set out in detail in pages 5-9. Most of these exemptions are subject to the 'public interest test'. It is the Scottish Government's experience that the older the record, the less likely the public interest is to lie in favour of withholding it from release.
10. The scope of the powers contained in section 59 are such that the order cannot be selective about which of the exemptions specified below it would apply to. It can only amend the definition of 'historical record' and so all of the exemptions listed below would be affected. Annex A provides more detail about the terms of each of these exemptions.
« Previous | Contents | Next »