Freedom Of Infornation Act 2002 – An Inroduction

Author: Derek O'Carroll | Posted: January 19, 2006

Download Full Article: freedom_of_information_act_2002.pdf

(This article has been abridged to fit on the website - to read the full article please download the PDF)

1.0     INTRODUCTION TO THE ACT

1.1  The Freedom of Information (Scotland) Act 2002 was passed by the Scottish Parliament in April 2002.  The purpose of the Act is to provide a right of access by the public to information held by public authorities. Until this year, there was no comprehensive statutory scheme enabling access to information held by public authorities . While there was is a Code of Practice applying to various public bodies which provided guidance as to when information should be released, that Code was non-statutory and could not be directly enforced by formal legal means .

1.2  In principle, subject to various wide-ranging exemptions, anyone, anywhere, is entitled to be given information held by a public authority on request in terms of the Act. Certain minor parts of the Act were brought into force on 30 September 2002 . The main part of the Act came into force  on 1st January 2005.

1.3  The Act is closely modelled on the Freedom of Information Act 2000. That Act applies to most UK public bodies including the UK government. The 2000 Act was also be brought fully into force on 1st January 2005 . Thus, there are now two Freedom of Information Acts applying to public authorities in Scotland. The Scottish Act will apply to the public authorities specified in schedule 1 to the Act. These are specified in section 2 of this Introduction. The UK Act will apply to public authorities with no devolved functions (for example UK Government departments).

1.4  The Act brings Scotland into line with other western nations. USA has had a federal Act since 1966 . Canada has had a federal Act since 1983 and most provinces have passed their own legislation . Australia passed the Australia Federal Freedom of Information Act in 1982 . New Zealand passed a wide-ranging Act in 1982  while nearer home, Ireland passed its own legislation in 1997 . It has been said of the Irish Act that:
"…the impact of the Act in government has been to make policy advice sharper, more succinct. Subjective comment and inappropriate reflections are increasingly less evident. FOI has also improved the way that services are delivered to the public. Arrangements for dealing with the public are now more user-friendly and there is a much more professional approach. It has also made Ministers think more deeply about their responsibility for individual decisions"
In relation to the Australian Act, it has been said that:
"...[the Act] had a marked impact on the way agencies make decisions and the way they record information...[the Act] has focused decision-makers' minds on the need to base decisions on relevant factors and to record the decision-making process…The knowledge that decisions and processes are open to scrutiny, including under the Freedom of Information Act, imposes a constant discipline on the public sector."
It is still perhaps too early to say, especially given the differences between the British Acts and the foreign Acts, whether the British Acts will have the same effect. Much will depend on the way that public authorities choose to implement their obligations under the Act and the extent to which the public seek to use the Act.

1.5  The following are the key features of the Act which will apply once the Act comes fully into force.

• The general entitlement. In terms of section 1 of the Act, the general entitlement is that a "person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority". The information which the applicant is entitled to is the information held by the public authority at the time that the request is received.
• What is meant by "information".  The definition is very wide. "Information" means information recorded in any form . Thus, anything which is recorded, whether on paper, on computer or otherwise falls within the definition. However, information does not include anything that is known by an individual but is not recorded in any form. It covers all information, whenever created, held by the public authority.
• What is a Scottish public authority?  The Act places a duty on public authorities, as specified in Schedule 1, to supply information in certain circumstances. Those bodies include local authorities. See Section 2.3 and 2.4 of this Introduction for more detail.
• Who can seek information. Any person , any organisation, anywhere can seek information from a public authority for any purpose. The person or organisation requesting the information does not have to explain why they want the information or the use to which it will be put.
• What information is covered by the Act? In principle, all information held by the public authority is subject to the Act. However, there are a large number of exemptions from the general duty. The exemptions fall into two classes. The first class is information covered by an "absolute exemption". This means that the public authority has an absolute right not to release the information or even to reveal whether it possesses the information in some cases. The second class is information covered by a 'discretionary exemption' (sometimes also referred to as 'qualified exemption'). Where a request is made for information covered by a discretionary exemption, the public authority must carry out a balancing exercise, weighing up the public interest in disclosing the information against the public interest in not disclosing the information. Even if the information is exempt, the public authority is still entitled to release the information (unless some other restriction applies, such as a statutory prohibition). See Section 3 of this Introduction for more detail.
• How to make a request for information. Anyone wishing to access information held by a public authority under the Act must make the request in writing (which includes email) or in some other permanent form (such as on tape) to the public authority. The request must give the name of the applicant and an address for correspondence. It must also describe the information requested. It does not have to specify that the information is required under the Act. Frequently, the request will not. Therefore, public authorities need to be aware that any request for information may trigger a duty under the Act.
• What does the public authority require to do on receipt of the request? The basic duty is that the public authority must comply with the request promptly and in any event, within 20 working days of the date of receipt of the request. That basic duty is subject to a number of considerations.
• The authority may need further information from the applicant to identify the information sought (see further Section 2.8 of this Introduction).
• The public authority may send a fees notice to the applicant (see below).
• The cost of providing the information may exceed the statutory limit (see below).
• The information may be exempt (see above and Section 3 of this Introduction).
• The authority may not have the information.
• The request may be refused as vexatious.
• The request may be refused as a repeated request from the same person.

If the information is exempt, the public authority must serve a refusal notice within the statutory period. If the authority does not hold the information, it must serve a notice within the statutory period.

• How should the information be provided? The information can be provided by any means which are reasonable in the circumstances . This includes:
• •    providing a copy of the document containing the information;
• •    providing a digest or summary of the information;
• •    giving the applicant the chance of inspecting a record containing the information;
• However, if the applicant has expressed a preference for receiving the information in one or more of these means, the public authority must give effect to that preference, so far as reasonably practicable.
• Charges for information. The public authority may be entitled to charge for the information. The amount of the fee is determined by Regulations made by the Scottish Ministers . If the cost of providing the information is above the limit set in the Regulations, the public authority does not have to provide the information. However, it may choose to do so if it wishes in which case the fee chargeable is set out in the Regulations.
• Duty to advise and assist . A public authority must provide reasonable advice and assistance to anyone who has made a request for information and anyone who proposes to make such a request. The Code of Practice to issued by the Scottish Ministers under section 60 (see below) provides Guidance on fulfilling that duty. If a public authority follows that Guidance, the duty is fulfilled. See Section 5 of this Introduction for the Code of Practice.
• Scottish Information Commissioner. The Act establishes the office of the Scottish Information Commissioner. His role mirrors that of the Information Commissioner in so far as his role under the Freedom of Information Act 2000 is concerned. The Commissioner's role is to promote observance of the Act and Codes of Guidance by Scottish public authorities. The Commissioner may also make recommendations as to good practice and has an enforcement role (see below and Section 4 of this Introduction).
• Challenges to decisions of a public authority.
• Internal Review. An applicant who is dissatisfied with the way that the public authority has dealt with a request for information may seek a review within 40 working days. That review must be done promptly and in any event, within 20 working days. The applicant must then be told the result of the review and the reasons.
• Application to Scottish Information Commissioner. If the applicant is dissatisfied with the result of the review, s/he may make an application for decision by the Commissioner. Effectively, it is an appeal.
• Enforcement notice. Apart from the review procedure, the Commissioner also has the power to serve an enforcement notice on a public authority is s/he is satisfied that that the authority has failed to comply with the Act. If the public authority fails to comply with the enforcement notice, the Commissioner can take court action.
• No civil right of action. The applicant does not have the right to take any court action concerning the failure of a public authority to comply with any duty under the Act. However, an applicant can appeal, on a point of law only, to the Court of Session against certain decisions of the Commissioner. The public authority also has such a right of appeal. It may also appeal against an information notice or an enforcement notice served on that authority by the Commissioner.
• Publication schemes. All public authorities must put into place a publication scheme. A publication scheme is one which specifies what classes of information the authority publishes (or intends to publish) as a matter of course. The scheme must also say how the information is to be published (publishing includes publication on the Internet) and whether any charges are to be made for the information. When devising the scheme, the authority must have regard to certain criteria in the Act. The scheme must be approved by the Commissioner, who can approve it for a limited or unlimited period.  The Commissioner has published Guidance on the preparation of publication schemes under section 43(2) of the Act as well as publication scheme templates. Information which is published in accordance with the publication scheme is exempt from the Act .
• Codes of practice. Under section 60, the Scottish Ministers have issued a Code of Practice providing Guidance to public authority as to good practice . Under section 61, the Scottish Ministers have published a Code of Practice providing Guidance to public authorities on good practice in record keeping . See Section 5 of this Introduction.
• Deletion, alteration etc of information. It is a criminal offence for anyone to alter, block, destroy etc. any information following a request for disclosure if it is done with the intention of preventing disclosure of the information to the person requesting it . However, if any amendment or deletion would have been done anyway, between the time of the request and the time that the information is given to the applicant, and it was not reasonably practicable to prevent destruction of the information, the amendment etc. is lawful. If information is destoyed before request is made for it, even if done with the intention of concealment, that is not prohibited by section 65.

1.6     Relationship with other legislation.

• Data Protection Act 1998.  The Act and the 1998 Act are closely related in that they both relate to the provision of information held by an organisation.  However, the philosophies of the two Acts are rather different. The Act is concerned to promote dissemination of information. The 1998 Act is designed to protect information which is personal data.  The conflict between the two Acts is resolved to some extent by the 2000 Act which provides (roughly speaking) that personal data requests by the data subject are exempt from the disclosure provisions of the Act and instead, in effect, have to be dealt with under the 1998 Act . Personal data requests by those who are not the data subject are dealt with under the Act. It is likely however that such requests would infringe the data protection principles and so would be exempt information under the Act.

• Human Rights Act 1998. All bodies subject to the Act are also subject to the Human Rights Act 1998 which, in effect, incorporates the terms of the European Convention on Human rights into UK law. It is possible that in some limited circumstances, an individual may have a right of access to information which is not given under the Act. Article 8  has been used in the past to obtain a right of access to information not otherwise available . It is unlikely that Article 10 of the Convention (freedom of expression) will be relevant, as that protects the right to free expression of information that is already in the public domain rather than the right to obtain information which is presently confidential. Articles 5 and 6 may be relevant if the information was required in order that a fair civil or criminal trial could be held. However, it is thought that the right to information under the Act itself may not amount to a "civil right", as it is likely to be classified as a public right. Article 2  and Article 3 may in rare cases require a public authority to release information so as to prevent a breach of those Articles taking place by either another public authority or by a non-public authority . All provisions of the Act must be read in the light of the Human Rights Act 1998 and interpreted consistently with it . Where there is a conflict, the Human Rights Act 1998 prevails .

• Other legislation enabling access to information. Various other legislation provides that a public authority is under a duty to supply information. In general, section 25 provides that where information is otherwise available, whether for a fee or not, that information is absolutely exempt from the Act.
• Other legislation preventing access to information. Information is absolutely exempt if the disclosure is prohibited by any enactment .

1.7     Historical records . These are records more than 30 years old and are subject to special provisions under the Act.
1.8  Consequences of the Act for public authorities. The Act is a complex piece of legislation. It imposes much greater demands on public authorities than the previous Code of Practice.  The following are the main effects of the Act for public authorities.

• Each public authority must adopt and maintain a publication scheme relating to all information which it intends to publish as a matter of course . The Scottish Information Commissioner must approve the scheme .
• Because the Act will be retrospective , public authorities will need to review its systems for storage and retrieval of information held in records, past and present. See the Code of Practice at Section 5 of this Introduction for advice.
• Consideration will have to be given for the way in which in practice, requests for information will be dealt with under the Act. Authorities will need to consider who will deal with such requests and how. Consideration will have to be given to integration of requests for information under the Act, under the 1998 Act and under other statutory provisions which oblige disclosure of information. The procedures should be tested with dummy runs relating to the sort of information likely to be requested under the Act.
• Consideration will need to be given by each public authority to the way that it will communicate with other public authorities in relation to requests for information. That will require discussions with them so as to set up protocols and clear lines of communication. The timescales in the Act for performing duties are tight.
• There will probably need to be a designated post within the organisation as a whole to take chief responsibility for implementation and maintenance of the scheme of the Act. That person may well be the existing person who deals with requests under the 1998 Act. In addition, depending on the size of the public authority, there may need to be designated officers in individual departments who would co-ordinate with the chief information officer.
• Policies will need to be developed by the organisation as to how it will apply the discretionary exemption criteria, particularly in relation to areas where there are likely to be significant numbers of requests.
• There will require to be extensive training within the organisation of all officers so that they understand the effects of the Act and their responsibilities under it. That training would also incorporate efforts to achieve the culture shift (implied in the Act) towards a presumption of openness in responding to the public.