Responding to Requests for Information
The Commissioner has produced guidance for authorities on the processing of requests for information under FOISA. This guidance can be viewed and downloaded from this website here.
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Where a written request for environmental information is received, authorities must process the request under both the Environmental Information (Scotland) Regulations 2004 (the EIRs) and FOISA. FOISA requires that ALL written requests for information are responded to in accordance with FOISA, and this includes requests for environmental information. The processing of a request for environmental information under FOISA is unlikely to be cumbersome, however, and will normally require only the simple application of the exemption under section 39(2) of FOISA.
Section 39(2) of FOISA contains an exemption which can be applied to information accessible under the EIRs. This exemption is subject to the public interest test, but because a separate regime exists for the consideration of requests for environmental information, the public interest will normally lie in the exemption being upheld.
Following the application of the section 39(2) exemption, the authority should then go on and process the request fully under the EIRs.
The Commissioner has produced a flowchart which provides further information on dealing with written requests which involve environmental information. This flowchart can be viewed at www.itspublicknowledge.info/Law/EIRs/EIRs.aspx
The definition of "environmental information" can be found within regulation 2 of the EIRs. The full text of the EIRs, including regulation 2, can be viewed at Environmental Information Regulations (Scotland) (EIRs).
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When a request for environmental information is received only verbally, this can be processed under the EIRs alone. In order for a request under FOISA to be valid it must be in writing or in some other recordable format. This means that there is no requirement to process verbal requests for environmental information under FOISA.
It will, however, frequently be good practice to advise individuals making verbal requests for environmental information to follow up the request in writing. This will particularly be the case in circumstances where there may be uncertainty over whether the requested information is in fact "environmental", or where the request may cover both environmental and non-environmental information.
Where a request has been followed up in writing, that request should be dealt with under both FOISA and the EIRs, in line with the Commissioner's flowchart for dealing with written requests which involve environmental information. This flowchart can be viewed at www.itspublicknowledge.info/Law/EIRs/EIRs.aspx.
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Authorities should have procedures in place to determine at the outset whether the information requested falls within the definition of "environmental information" contained under regulation 2 of the EIRs.
There will be circumstances, however, where an authority is unsure whether information constitutes environmental information. In such circumstances, an authority should respond to the request in terms of both FOISA and the EIRs, separately setting out to the applicant both the FOISA exemption(s) and the EIR exception(s) it considers applies to the information.
Should an application subsequently be made to the Commissioner, the first step of the Commissioner's investigation will involve an assessment of whether the information is indeed "environmental", for the purpose of the EIRs.
The Commissioner has produced a flowchart which provides further guidance on the processing of written requests for environmental information. This flowchart can be viewed at www.itspublicknowledge.info/Law/EIRs/EIRs.aspx.
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Where the information falling within the scope of a request comprises both "environmental" and "non-environmental" information, then the specific component information must be processed in accordance with the appropriate regime. Environmental information falling within the scope of the request, therefore, must be processed in accordance with both FOISA and the EIRs, while any non-environmental information should be processed in accordance with FOISA alone.
The Commissioner has produced a flowchart which provides further guidance on the processing of written requests which involve environmental information. This flowchart can be viewed at www.itspublicknowledge.info/Law/EIRs/EIRs.aspx.
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In such cases, the authority should inform the applicant that a mistake has been made and that the application should have been considered under the EIRs. The request should be reassessed accordingly. The decision to switch legislation, however, should be made in good faith and not made with a view to disadvantaging the applicant.
Where the Commissioner considers, on appeal, that a case should have been considered under the EIRs rather than the Act (or vice versa) the authority will be invited to comment.
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FOISA talks about disclosing information rather than documents or records. Does this mean requests for documents are invalid?
FOISA gives people the right to recorded information, rather than an entitlement to copies of specific documents. This does not mean, however, that requests for documents are automatically invalid. Requesters are required by FOISA to describe information in a way which is sufficiently clearly to enable you to locate and retrieve it. This might include reference to documents which contain the information the requester is seeking. Therefore, if an applicant has asked for a document and it is reasonably clear in the circumstances that it is the information recorded in the document that the applicant wants, then you should respond to this request as one which is properly made under FOISA.
If you do not feel that the request is sufficiently clear, you have a duty to advise and assist the requester, and this will likely include approaching the applicant to tell them what other information you need in order to help you identify and locate what they are seeking.
"Documents" come in a range of formats, including (but not necessarily restricted to) paper files and documents and reports, video or sound recordings, maps, correspondence, microfiche and microfilm, or other electronic formats.
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Information which your authority holds but which has been supplied or provided by another public authority will normally be "held" by you. This means that you will have to disclose the information in line with FOISA.
However, "holding" information is not always a question of who physically holds it. For example, if authority A provides a document storage facility for authority B, authority A is not the holder of the information for the purposes of FOISA and is not obliged to disclose it in response to an FOI request. Although authority B does not physically hold the information on its premises, it does "hold" the information for the purposes of FOISA and is responsible for responding to FOI requests in relation to that information.
If authority A receives a request for information which it holds on behalf of authority B, it should issue a refusal notice within 20 working days advising the requester that it does not hold the information, and should refer the applicant to Authority B (the true holder of the information). If authority A chooses to refuse the request on this basis and the case is subsequently referred to the Commissioner, the Commissioner is likely to want proof that the information is being held by authority A on behalf of authority B - for example, a copy of the contract for the document storage facilities.
If authority B receives a request for information which authority A holds on its behalf, it must comply with the request within 20 working days. Authority B must therefore make sure that it has appropriate arrangements in place with authority A to ensure it can access the information within the 20 working days.
(Remember that separate rules are in place where information is held by the Keeper of the Records of Scotland on behalf of a public authority - see s22 of FOISA.)
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No. Councillors are not Scottish public authorities under FOISA, so an information request made to a councillor is not valid. However, it is possible that members of the public will not make this distinction and will make a request for information held by a council to a councillor instead of to a council. As a result, the Commissioner expects councils to put arrangements in place with councillors so that any requests councillors receive for information held by the council are passed to the council to be dealt with.
As these requests are made to a councillor and not to the council itself, the council does not have a duty to respond to the request under FOISA. However, councils have a duty to advise and assist people making information requests under section 15 of FOISA. Depending on the request, this duty can either be fulfilled by making the information available informally or by asking the requester to make a new, valid information request direct to the council.
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Where a public authority has deleted an e-mail or an electronic file and it can only be retrieved by an IT specialist, the Commissioner takes the view that the information is no longer held by the public authority.
E-mails in an electronic waste bin which has not been emptied will be readily accessible and should therefore be disclosed.
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Since 1 January 2005, public authorities in Scotland have been able to release information which is third party copyright in response to a FOI request without breaching the Copyright, Designs and Patents Act 1988 (CDPA) as a result of The Freedom of Information (Scotland) Act 2002 (Consequential Modifications) Order 2004 which was made by the UK Parliament.
Among other things, this Order ensures that section 50 of the CDPA applies to FOISA. Section 50 of the CDPA states that if a particular "act" (e.g. the release of information in response to an FOI request) is required by an Act of Parliament then the carrying out of that act does not infringe copyright.
This means you will be able to respond to requests for information under FOISA without breaching copyright. However, the usual copyright restrictions will apply to the subsequent use of the information by the applicant.
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You are not obliged to create new information to respond to an information request, although an applicant can ask you to provide a digest or summary of the information (section 11(2)(b)). The Commissioner does not consider compiling information from a variety of sources to be creating new information.
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