Public authorities FAQs

A request for environmental information may be made in any form (including verbal). Therefore, all voice-mail requests which include a method of contacting the requester should be dealt with as a valid request.

The issue of whether a voice-mail request should be considered as valid under FOISA will largely depend on the capabilities of the voice-mail system used by the authority receiving the request. If the system allows for voice-mail records to be permanently stored and subsequently referred to and the requester includes a name and an address for correspondence, then the request should be considered as valid. However, if the system does not have this functionality (e.g. if the system automatically deletes records after a period of time and there is no way to transfer them onto other systems for storage) then the request should not generally be considered valid under FOISA . However, under the duty to provide advice and assistance, the authority should try to contact the requester to advise him/her to submit the request in writing, or in another recordable format.

Environmental Information

A request for environmental information may be made in any form (including verbal). Therefore, all requests made by phone which include a method of contacting the requester should be dealt with as a valid request.

FOISA

To be valid, a request must be capable of being kept, for example either in writing or in recorded form, able to be referred to, and must include the name and correspondence address of the requester. If a request is made during a telephone conversation, its validity will depend on the capability of the authority's telephone system, what advice is given at the time and whether the conversation is being recorded.

A request is likely to be valid if: the requester knows the conversation is being recorded (as a sound file, not simply recorded in a note); the recording can be stored permanently; the recording can be subsequently referred to or saved separately as a file on another system; the recording can be stored in such a way that it confirms when the request was made; the requester describes the information sought; and the recording includes the name and contact details of the requester.

A request is unlikely to be valid if: the conversation is not recorded; the requester does not know the conversation is being recorded; the recording cannot be saved permanently or transferred as to a file for access and storage on another system; the permanent record does not confirm when the request was made; or the recording does not include a description of the information sought or the name and correspondence address of the requester.

Advice and information

Authorities have a duty to provide advice and assistance. The advice will vary according to the particulars of the request, but assistance an authority might want to give includes: making it clear during the conversation whether FOISA requests may be made at the time and if not; how they can be made; suggesting the requester put the request in writing or another recordable format; ensuring that if a request for information is made the requester is advised that they must state their name and correspondence address for the permanent record; ensuring the information is adequately described; and acknowledging requests quickly.

FOISA says that where a request for information is made by e-mail, it is presumed to have been received by the authority the same day (section 74(2)(b)). This means that the 20 working days "clock" will start counting down from the day after receipt, whether you are in the office to read it or not. If you are out of the office for any length of time, you should make arrangements to make sure that any requests which you receive can be dealt with within the time limits. For example, you could give a colleague access to your e-mail inbox or auto-forward your messages to ensure that any information requests are identified and dealt with. You could also consider setting up an automatic "out of office" reply telling people that you are away and giving an alternative contact point for any requests for information. Whatever procedures you put in place, the request must still be dealt with within 20 working days of receipt.

The Freedom of Information (Scotland) Act 2002 (FOISA) gives everyone the right to ask Scottish public authorities for the information they hold.

An information request must contain the name of the person making the request (sometimes known as the "true applicant" or "true requester"). This means that requests cannot be made anonymously and pseudonyms (fake names) cannot be used.

It also means that, if someone is making a request on behalf of another person, the person on whose behalf it is being made must be identified in the request.

It's also important to note that the name - which could be a first name and surname, first initial and surname, or title and surname - must be included in the main text of the request. It's not enough, for example, for the name to be visible in an email address or even as the sender of an email.

The Freedom of Information (Scotland) Act 2002 (FOISA) gives everyone the right to ask Scottish public authorities for the information they hold.

An information request must contain the name of the person making the request (sometimes known as the "true applicant" or "true requester"). This means that requests cannot be made anonymously and pseudonyms (fake names) cannot be used.

It also means that, if someone is making a request on behalf of another person, the person on whose behalf it is being made must be identified in the request.

It's also important to note that the name - which could be a first name and surname, first initial and surname, or title and surname - must be included in the main text of the request. It's not enough, for example, for the name to be visible in an email address or even as the sender of an email.

Under section 49(1) FOISA, the Commissioner is not required to reach a decision on an application which the Commissioner considers to be frivolous or vexatious. The provisions in section 14 and 49(1) aim to protect the credibility and effectiveness of freedom of information laws. Most requesters exercise their rights to information responsibly, but there are rare occasions when this is not the case. These provisions provide a way of dealing with the few cases that:

• are unreasonable
• would impose a significant burden on the financial and human resources of public authorities
• are deemed to be vexatious because of other impacts on the authority

Public authorities should not use the provisions in section 14 lightly. They should consider all the relevant circumstances in order to reach a balanced conclusion as to whether a request is vexatious or repeated.

Requesters must not be unjustly denied the opportunity to make a genuine information request. Requests may be inconvenient, and meeting them may at times stretch an authority's resources, but these factors, on their own, are not sufficient grounds for an authority to deem a request vexatious or repeated.

Regulation 10(4)(b) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) allows a Scottish public authority to refuse to disclose environmental information if the request is manifestly unreasonable.

This is very similar, but not identical, to the vexatious provision in section 14 of the Freedom of Information (Scotland) Act 2002 (FOISA). Read the Commissioner's separate guidance on vexatious or repeated requests.

The exception in regulation 10(4)(b) is subject to the public interest test in regulation 10(1) of the EIRs. This means that, even if the exception applies, the information should still be disclosed if the public interest in making the information available is outweighed by the public interest in maintaining the exception.

As with all of the exceptions in the EIRs, the exception can be relied on regardless of the age of the information.

This exception aims to protect the credibility and effectiveness of the EIRs. Most requesters exercise their rights to information responsibly, but there are rare occasions when this is not the case. This exception provides a way of dealing with the few cases that are unreasonable, would impose a significant burden on the financial and human resources of public authorities or are otherwise manifestly unreasonable because of their impact on the authority.

Public authorities should not use this exception lightly. They should consider all the relevant circumstances in order to reach a balanced conclusion as to whether a request is manifestly unreasonable. Requesters must not be unjustly denied the opportunity to make a genuine information request. Requests may be inconvenient, and meeting them may at times stretch an authority's resources, but these factors are not on their own sufficient to deem a request manifestly unreasonable.

See the above 2 FAQs and their answers for more details. 

The Commissioner takes the view that an email to a discussion group could be a request for information - provided that the email request is received by a public authority. However, such a request would be very difficult to enforce. Members of a discussion group/forum may simply informally agree not to follow up these requests under the Act.

It is also recognised that many of the requests on discussion forums are for expressions of opinion rather than for information.

Failure to respond to a request for information is something that the Ombudsman has been able to take action on for many years, but there are no known cases.

If an employee of a public authority accesses the list from their private home email account, then that will not constitute a request to a public authority.

In theory it is possible that requests can be made via sites such as Facebook and Twitter, but to be valid they still have to comply with s8 of FOISA, which requires that requests state the name and address of the applicant and an address for correspondence as well, of course, as describing the information requested.

Requests which are anonymous or which use pseudonyms will not be valid. This is less likely to be an issue with Facebook (Facebook asks users to provide their real name), but may cause problems with Twitter. Although it may be possible to find out the real name of the applicant through a Twitter user's linked profile, the Commissioner takes the view that, for the request to be valid, the name of the requester must be evident from the tweet itself.

As mentioned above, requests must also include an address for correspondence. Given the restrictions on responding (see below), it is preferable if the request contains an email or postal address where a response may be sent.

Where requests do not specify the name of the applicant or an address for correspondence, you should, in line with your duty to provide advice and assistance under s15 of FOISA, tell the applicant what they have to do to make the request valid and how best to use their information rights. Often, the easiest option will be to ask the applicant to make a new request via email or suggest they use www.whatdotheyknow.com. However, if the information can easily be provided, you may instead choose just to disclose the information, while making the applicant aware that the request is in fact invalid.

Public authorities are likely to face difficulties replying to requests made via Facebook or Twitter, particularly if they are refusing to disclose information (given the need to issue a notice complying with s16 of FOISA) or are disclosing large amount of information. (Twitter contains a limit on the number of characters that can be used.) In order to comply with FOISA, public authorities must "give" applicants information (see s1(1)) or "give" a notice (see e.g. s16(1)) explaining why the information is not being provided. It is not yet clear whether providing an applicant with a link where they can access the information or read the notice is sufficient to comply with this duty, although applicants are perhaps unlikely to complain if information is provided, or a notice is given, in this way. Again, the best solution may be to ask the applicant to provide an email or postal address to allow the authority to "give" a response or suggest they use www.whatdotheyknow.com.

The Commissioner has not yet received any applications for a decision following on from a request made via Facebook or Twitter and this is new and untested area. Decisions as to whether requests (and subsequent applications) are valid will be made on a case by case basis and this guidance will be updated to reflect any decisions made.

You should also be aware that requests for environmental information made under the Environmental Information (Scotland) Regulations 2004 may, given that there is no express requirement to provide an address for correspondence, be more likely to be valid if made via Facebook or Twitter than requests under FOISA.

Finally, you need to remember that you are under a duty to provide advice and assistance to requesters. So, if someone seems to be trying to make a request through Facebook or Twitter, the authority should respond.

It would depend what information is being asked for. Access to personal data is covered by the Data Protection Act 1998. However, if the request is for recorded information held by the public authority then it should be considered under the terms of FOISA.

It makes no difference whether the person making the request is an employee of the authority or not. The Act gives a general entitlement to receive information held by a Scottish public authority.

We have received a number of enquiries from applicants asking about steps they can take where a response has not been received within 20 working days. This has highlighted the fact that there may be disagreement between the applicant and the authority as to when the 20 working day period stops and starts.

While the Act specifies a 20 working day period it also allows for postal time (see s74 of FOIAS). Some authorities are informing applicants of the date of receipt in an acknowledgement letter (thereby indicating when the clock started ticking). It might be helpful for authorities also to state when the 20 working days will end.

For example: "A response to your request for information will be sent to you promptly; and in any event not later than [insert date]. Please allow postal time."

Section 73 of FOISA defines "working day" as any day other than a Saturday, a Sunday, Christmas Day or a day which, under the Banking and Financial Dealings Act 1971, is a bank holiday in Scotland.

Bank holidays for Scotland are as follows:

• New Year's Day (unless New Year's Day happens on a Sunday, in which case 3rd January is treated as a bank holiday)
• 2nd January (unless 2nd January happens on a Sunday, in which case 3rd January is treated as a bank holiday)
• Good Friday
• The first Monday in May
• The first Monday in August 30th November, if it is not a Saturday or Sunday, or if it is a Saturday or Sunday, the first Monday following that day
• Christmas Day (unless Christmas Day happens on a Sunday, in which case 26th December is treated as a bank holiday)

In addition, special days can be appointed under the 1971 Act as bank holidays (either additional or in place of bank holidays which fall on a Saturday or Sunday) subject to Royal Proclamation each year. These include Boxing Day, which has been an additional bank holiday in Scotland since 1974 and the last Monday in May which has been a bank holiday since 1978.

The 1971 Act also enables the Queen to appoint substitute bank holidays in any one year by Royal Proclamation. Substitute days are customarily appointed for all UK bank holidays which fall on a Saturday or Sunday. Where any of the dates fall on a Sunday, the Act substitutes the following Monday for that date. If any fall on a Saturday (or if Boxing Day falls on a Saturday or Sunday), the Royal Proclamation includes substitute days for these days.

The statutory bank holidays for Scotland are set out on the Scottish Government's website, available via the link below:

https://www.gov.scot/publications/bank-holidays/

It should be noted that local holidays outwith the bank holidays are not considered to be official bank holidays and should be calculated as working days for the purpose of FOISA.

FOISA simply states that a public authority must comply promptly with a request for information and in any event not later then the 20th working day from receipt of the request. Public authorities should respond as quickly as possible, but in any event they must send out the response within 20 working days. It is not necessary for the applicant to receive the response within 20 working days.

No. Under FOISA all requests for information must be responded to within 20 working days, either by releasing the information requested, issuing a refusal notice setting out which exemptions apply to the information and why, or by issuing a formal notice that the public authority doesn't hold the information.

Under the EIRs, the timescale can be extended to 40 working days in certain limited circumstances, but this only applies to requests for environmental information where the volume and complexity of the information requested makes it impracticable for the authority to comply with or refuse the request within the 20 working day time limit.

If you need to ask the applicant for further information to help you identify and locate the information they want, the 20 working days "clock" does not start counting down until you have received their clarification. The deadline for compliance will be the twentieth working day after you receive additional information from the applicant.

Public authorities must not misuse this by delaying asking the applicant for further information in order to give themselves more time to reply when the additional information isn't really needed.

When the authority sends a fees notice to the applicant, the "clock" stops in relation to the 20 working days time limit. The clock restarts the day after the authority receives payment (section 10(3)). So, if a fees notice was issued 15 working days after the request was received, you have 5 working days to release the information, starting the day after payment has been received.

An authority should apply its procedures consistently, so if currently information, products or services are provided without waiting for a cheque to clear then the same procedure should be followed for FOI requests. If an authority's current practice is to delay providing services etc until the cheque has cleared, then they can use this practice for dealing with freedom of information and environmental information requests. However, in these circumstances, authorities must not delay cashing a cheque.

Unfortunately, there are no time limits set down under the Act for the Commissioner to refer cases to the Court of Session. However, members of the public and public authorities will have 42 days to appeal against the decision of the Commissioner to the Court of Session from the issue of a decision notice.

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.

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 here. 

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 here.

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 here.

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 here.

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 here. 

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.

The Freedom of Information (Scotland) Act 2002 (FOISA) gives everyone the right to ask Scottish public authorities for the information they hold. This is subject to various provisions and exemptions in FOISA.

FOISA gives a right to information, not to documents. This guidance looks at whether requests for copies of documents are valid requests under FOISA and tells public authorities how they should respond to this type of request.

Download the briefing here: Does FOI law give a right to information or to copies of documents?

Under section 1(1) of the Freedom of Information (Scotland) Act 2002 (FOISA), a person who requests information from a Scottish public authority which holds it is entitled to be given the information by the authority.

The definition of "information" in FOISA is wide. It means information recorded in any form. The information to be given to a requester is the information which the authority holds at the time the request is received (section 1(4) of FOISA).

However, some information an authority has in its possession may not be "held" by it for the purposes of FOISA. This applies to:

• information which the authority holds on behalf of another person (section 3(2)(a)(i) of FOISA), and
• information which was supplied by a Minister of the Crown or a department of the UK Government and is held in confidence by the authority (section 3(2)(a)(ii) of FOISA)

Information which another person holds on behalf of the authority is "held" by the authority (section 3(2)(b) of FOISA). Good records management is required in order to be sure what information is held within an authority.

Download the briefing here: Information not held - Section 17.

Under section 1(1) of the Freedom of Information (Scotland) Act 2002 (FOISA), a person who requests information from a Scottish public authority which holds it is entitled to be given the information by the authority.

The definition of "information" in FOISA is wide. It means information recorded in any form. The information to be given to a requester is the information which the authority holds at the time the request is received (section 1(4) of FOISA).

However, some information an authority has in its possession may not be "held" by it for the purposes of FOISA. This applies to:

• information which the authority holds on behalf of another person (section 3(2)(a)(i) of FOISA), and
• information which was supplied by a Minister of the Crown or a department of the UK Government and is held in confidence by the authority (section 3(2)(a)(ii) of FOISA)

Information which another person holds on behalf of the authority is "held" by the authority (section 3(2)(b) of FOISA). Good records management is required in order to be sure what information is held within an authority.

Download the briefing here: Information not held - Section 17.

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.

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.

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.

Yes - section 66 of the Act makes it clear that there is nothing to stop public authorities from disclosing information which falls within one of the exemptions. However, public authorities should be aware that there may be other legislation which will prevent them from releasing the information - see section 26(a).

Information can be excluded from the general right of access if it falls within one of the exemptions listed in the Act. However, when replying to requests for information covered by a number of these exemptions, the authority must consider whether it would be in the "public interest" for the information to be released (see section 2 of the Act).

The Act does not define the public interest but it has been described as "something which is of serious concern and benefit to the public". It has also been held that public interest does not mean what is of interest to the public but what is in the interest of the public. What constitutes the public interest may change over time and according to the circumstances of each case. Because of this, authorities will need to make any judgements on a case by case basis in the light of emerging guidance or best practice.

When applying this exemption, public authorities must consider whether, in all the circumstances of the case, the benefit to the public in disclosing the information would outweigh any harm this would cause the authority or other affected people. If the two are evenly balanced, the presumption should always be in favour of disclosure.

This list is not exhaustive but contains some of the factors which public authorities should take into account when applying the public interest test:

• whether disclosure would enhance scrutiny of decision-making processes and thereby improve accountability and participation
• whether disclosure keeps the public adequately informed of any danger to public health or safety, or to the environment
• whether disclosure would contribute to ensuring that any public authority with regulatory responsibilities is adequately discharging its functions
• whether disclosure would contribute to a debate on a matter of public interest.

In deciding whether it is in the public interest to provide information, authorities should not take into account:

• the possibility of embarrassment to officials
• the possible loss of confidence in the authority; the seniority of the people involved
• the risk of the applicant misinterpreting the information.

Further information on the public interest is available from the Section 60 Code published by the Scottish Ministers.

See also the Scottish Information Commissioner's briefing on The Public Interest Test.

No. Although the exemption in section 30(a) applies only to information which would prejudice the effective conduct of the Scottish Ministers, the exemptions in section 30(b) and (c) apply to the effective conduct of all Scottish public authorities, including the Scottish Ministers.

The fees regulations allow an authority to charge for "projected costs", "whether direct or indirect, which a Scottish public authority reasonably estimates that it is likely to incur in locating, retrieving and providing such information". Costs which might be charged include estimates of the staff time to collect information from the organisation's archive, the cost of postage to deliver the information to the requester or the cost of photocopying in order to provide it. An authority cannot, however, charge for the time and resources used to determine whether the authority actually holds the information e.g., through searches of catalogues and records holdings. It also cannot charge for any costs incurred in deciding whether the information can be released.

An example: An authority receives a request for a copy of a consultation report. The authority decides to remove the names of members of the public who were consulted. The authority cannot charge for the staff time taken to decide which information must be redacted, but it could charge for the estimated staff time to physically blank out the appropriate parts of the document once that decision was made.

If you receive separate requests for information or a number of questions relating to different information from the same person recorded in the same letter/email you should consider them as separate in terms of the fees regulations. Likewise, where an authority receives a request (or a number of requests) for information that specifies different time periods, each question relating to each time period should be considered as a separate request. The Act allows this. The applicant could have sent separate letters/emails or even separate letters in the same envelope. The fact that they are recorded in the same letter/email should not change how the authority deals with them. In this instance, the authority will need to issue individual fees notices.

There are certain circumstances when an authority can aggregate costs. The fees regulations state that an authority can aggregate the cost of responding to a section 1 request where an authority receives two or more requests from different persons which cover the same subject matter or which significantly overlap. In such cases, where the estimated aggregated costs of complying with the requests exceed the prescribed limit of £600, the authority is not required to comply with each individual request providing it makes the information available to the public at large.