JISC

Audience Principals and Deputy Principals in FE, proVice Chancellors in HE, Governors, Registrars and other senior managers responsible for legal compliance. Senior managers responsible for developing strategy, such as information strategies, IT strategies and public relations policies.

This briefing paper outlines the:

• new legislative framework for public access to information held by public authorities, including schools, colleges and universities in Scotland
• measures that should be taken to ensure compliance with the Scottish legislative framework

The Freedom of Information (Scotland) Act 2002 ('the Scottish Act') gives a general right of public access to all types of 'recorded' information held by Scottish public authorities, sets out exemptions from that general right and places a number of obligations on Scottish public authorities.

The Scottish Act applies only to 'public authorities' and not to private entities. 'Public authorities' are, however, broadly defined in the Scottish Act and include schools, colleges and universities. Private entities - such as spin-off companies - that are wholly owned by a 'public authority' will also be subject to the Scottish Act.  

The Scottish Act is enforced by an independent Scottish Information Commissioner ('the Scottish Commissioner'). The Scottish Commissioner does not have any responsibility for the enforcement of the Data Protection Act 1998 in Scotland. Enforcement of that legislation remains the responsibility of the UK Information Commissioner ('the UK Commissioner').  

Responsibilities of Public Authorities

Public authorities have two main responsibilities under the Scottish Act:

• They must produce a 'publication scheme', which is a guide to the information they hold that is made available to the public as a matter of routine, such as prospectuses, almanacs and websites. Each authority's publication scheme must be approved by the Scottish Commissioner
• They must deal with individual requests for information. Individuals already have the right to access their personal data, held on computer and in some paper files, under the Data Protection Act 1998. The Scottish Act permits individuals to access all other types of non-personal information that public authorities hold, subject to specific exemptions.

Timetable

The Scottish Executive intends the Scottish Act to be brought fully into force by 1 January 2005 at the latest. It is likely that the duty to adopt a publication scheme will come into force first. All public authorities will be required to deal with individual requests when the general right of access to information held by public authorities comes into force, again, in theory, by 1 January 2005.

The Publication Scheme

As public authorities, Scottish FE and HE institutions are required to adopt and maintain publication schemes which must be approved by the Scottish Commissioner. Such schemes must set out:

• The classes of information the institution publishes
• The manner in which the information is published
• Details of any charges

The Scottish Act largely follows the (UK) Freedom of Information Act 2000 ("the UK Act") with regard to the nature of publication schemes, but differs with regard to the public interest test that the public authority must consider when assessing the content of its publication scheme. The Scottish Act explicitly refers to two categories of information where Scottish public authorities must pay particular attention to the public interest:

• Information which relates to the provision of services by a public authority, the cost to a public authority of providing such services or the standards attained by the services so provided
• Information that consists of facts, or analyses, on the basis of which decisions of importance to the public have been made by a public authority

Schemes may either be designed for particular bodies or be generic. Model schemes, for groups of similar bodies such as FE and HE institutions, may also be approved by the Scottish Commissioner. 

Once a scheme is approved, it is in theory up to the public authority to decide how to make it available to the public. Paper versions of an authority's publication scheme are likely to be a requirement. Publication schemes will be reviewed periodically and the initial period of approval is likely to be four years.  

Requests for information

Any individual will be able to make a request to a public authority for information. The individual does not have to be the subject of that information, or be affected by its holding or use. For example, the media are likely to use the legislation widely to obtain information for use in broadcasting or publication. If an individual is the subject of the information sought by a third party then the principles of the Data Protection Act to protect the data subject will take precedence over any Freedom of Information Act right. 

The Scottish Act gives applicants two related rights: to be told whether the information is held by the authority and to receive the information, where possible in the manner requested. 

Requests for information made under the Scottish Act must be made in writing, which includes electronic communications such as fax and email, or in another form with some permanency capable of being used for subsequent reference, such as a recording made on audio or video tape. Requests for information must be dealt with promptly, and the Act sets a maximum time frame for response of 20 working days. In certain circumstances, the Keeper of the Records of Scotland will have 30 working days to respond to requests. A fee may be charged for providing the requested information. There is no obligation to comply with 'vexatious' or repeated requests if the institution has recently responded to an identical or nearly identical request from the same person. There is, however, a duty to provide advice and assistance to anyone making a request. 

Exemptions

Some information is exempt from disclosure by the Scottish Act so does not have to be provided. The 17 such exemptions relate to information held for a variety of purposes, including national security and law enforcement. In particular, information is exempt from the Scottish Act if it is accessible to the applicant by other means. 

Before an FE or HE institution can rely upon a specific exemption it will usually be obliged to consider two further points:

• Whether the release of the information would damage the purpose to which the exemption relates
• Whether the public authority require to apply the 'public interest' test before making a final decision as to whether or not to release the information

The public interest test requires an authority to decide whether the public interest in withholding the exempt information outweighs the public interest in releasing it. The balance will lie in favour of disclosure in that information may only be withheld if the public interest in withholding it is greater than the public interest in releasing it, for example where disclosure of information would harm a police investigation. 

Most of the exemptions will require an authority to consider both the test of prejudice and the public interest test. However, institutions are advised to read the exemptions with care when determining whether they can be relied on to justify withholding information. 

Codes of Practice

The Scottish Act requires the Scottish Ministers to issue a code of practice that public authorities should follow when dealing with requests for information. It is currently available in draft form on the Scottish Executive’s website. 

The Scottish Act also requires the Scottish Ministers to issue a code of practice for public authorities to follow in relation to keeping, managing and destroying their records. It is currently available in draft form on the Scottish Executive’s website.  

About this paper

The information in this paper is taken from a much longer paper on the FoIA commissioned by JISC Legal Information Service JISC Legal Information Sevice was set up in response to the concern, in FE and HE, about the increasing impact of new legislation on ICT and related areas. JISC Legal Information Service cannot give professional legal advice but aims to provide information and alert institutions to the fact that such advice may be required.

Corresponding briefing paper