Freedom of Information

The Freedom of Information (Scotland) Act 2002 came into full force on 1 January 2005. It was originally passed by the Scottish Parliament on 24 April 2002 and was given Royal Assent on 28 May 2002.

The Act introduces a general statutory right of access to all types of 'recorded' information of any age held by a Scottish public authority.

It brought with it important new rights to access which are of great benefit to the members of the public.

This Act allows the public access to information held by public authorities in Scotland and also encourages a more proactive approach to publication of information by these authorities through publication scheme duty.

The principal aim of the Act is to increase openness and accountability through all public sector bodies. This is achieved through the Act allowing the public a right of access to information held by these bodies. The public will be allowed a look at how these bodies function and operate.

Agencies subject to the FOI Act

The Act applies to almost all Scottish Public Authorities including the Scottish Government and its agencies, the Scottish Parliament, Local Authorities, NHS Scotland, Universities and further education colleges and the police. The Act also applies to companies wholly owned by a public authority and, if designated, it may even apply to private companies carrying out a function for a public authority, under a contract for example.

A full list of these bodies can be found at Schedule 1 of the Act.

Scottish Ministers may alter or add to this list.

Under the provisions of the Act, Public Authorities must allow access to:

• information on the provision, cost and standard of the services it provides
• any factual information requested which it holds
• details of decisions made with the reasons for these

Publication Schemes

The Act also requires all public authorities to adopt and maintain a 'Publication Scheme'. Such a scheme describes the classes of information which the authority publishes or intends to publish, how it does so and any fee associated with these publications. These publications are submitted to the Scottish Information Commissioner.

Exemptions

There are a number of exemptions where the information is not allowed to be given by the public authorities. There are absolute and non-absolute exemptions. If an absolute exemption applies, then the authority will not have to release the information. Absolute exemptions cover classes of information such as that relating to national security and also information which can be found elsewhere, such as in the authority's publication scheme.

If information is covered by a non-absolute exemption then the authority must consider whether it is in the public's best interest to release it. If it is, then the information may be released.

Details of the exemptions are contained in Part 2 of the Act.

FOI at fifteen

Thousands of requests have been made for information to the various authorities since the Act was introduced, the majority being from members of the public.

The Act has obviously created a great deal more work for these public bodies, however, they have adapted well to this huge change in their structure.

Despite these positive signs, there are problems. In 2019 the Scottish Government held a consultation on the need to extend the Freedom of Information (Scotland) Act 2002 (FOISA) to cover a wider range of bodies.

During the same year, the Scottish Parliament’s Public Audit and Post-legislative Scrutiny Committee also looked at the effectiveness of FOISA, drawing evidence from campaigners, solicitors, journalists and the public.

This came after campaigners exposed holes in the statutory requirements of the act, as well as the mishandling of numerous FOI requests.

The Information Commissioner’s annual report found that in 2018/19 there were a record number of FOI requests in Scotland (84,000). However, this resulted in pressures, with many requests not responded to within the statutory 20 working-day period.

Thompsons FOI solicitors in Scotland

Thompsons FOI Solicitors can help ensure high levels of compliance with the Act in the work we undertake to assist our clients.

For example, if you are injured at work and are employed by a local authority then we will request details of similar accidents as well as information in relation to the cause of your accident.

We are one of the largest legal firms in Scotland and have proven pedigree in this type of work. Wherever you are located we can help you achieve clarity and justice.

 For more information contact us today.