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The Freedom of Information (Scotland) Act 2002 is similar, though not identical, to the UK Act. Passed by the Scottish Parliament, it applies to over 10,000 public authorities under the control of the Scottish Executive, but not to UK government departments operating in Scotland.
The first publication schemes came into effect June 2004 and, as with England, Wales and Northern Ireland, the public right of access to information began on 1st January 2005. Similarly, there are two codes of practice, one relating to the disclosure of information the other to records management.
The Scottish Information Commissioner is Kevin Dunion who has a campaigning background with Oxfam and Friends of the Earth.
Differences to the UK Act
There are a number of differences between the Scottish and UK acts, some subtle and some substantial. The most important ones are:
- The Data Protection Act. The Scottish Information Commissioner is not responsible for implementation of the Data Protection Act, which remains the responsibility of the UK Information Commissioner Richard Thomas.
- Qualified exemptions. In Scotland the public interest test applies if disclosure could ‘substantially prejudice’ the interests specified in the Act. The UK act uses the term ‘prejudice’, which makes it easier for public authorities to justify non-disclosure.
- Exemption for parliamentary privilege. The UK act provides an absolute exemption on the release of information covered by parliamentary privilege. Since the Scottish Parliament has no such concept, no equivalent exemption applies in Scotland.
- Right of appeal. Under the Scottish Act there is no Information Tribunal, so the Scottish Information Commissioner is the final arbiter. Applicants and public authorities can appeal against decisions of the Commissioner on points of law to the Court of Session. This is the equivalent to an appeal to the High Court under the UK Act.
- Ministerial veto. The UK Act allows any minister to veto a decision of the information commissioner to disclose information on the grounds of public interest. The Scottish act gives less room for manoeuvre, with only the First Minister able to exercise a veto. The veto only applies to a narrow band of exemptions and only then if the information is deemed to be of ‘exceptional sensitivity.’
- Time limit on public interest questions. If a public authority has to decide whether the public interest test should apply, the UK Act allows the authority more time to respond to a request for information than the normal 20 working days. The Scottish Act is stricter, insisting on the 20 working day limit (30 days if the information requested has been transferred to the Keeper of Records.) However, the Scottish Act recognises that the time limits could be extended if further details are required to locate information.
- Cost. In Scotland there is an upper cost limit to the authority of £600, based on a rate of £15 per hour. Requests costing the authority under £100 to fulfil will be free to the applicant, while requests costing between £100 and £600 should be charged at 10 per cent of the cost, meaning a maximum charge of £50. UK fees regulations are yet to be announced.
Environmental Information Regulations
Scotland has its own Environmental Information Regulations (EIRs), which, like the UK EIRs and the FOIA, came into force on January 1st 2005. The EIRs cover all Scottish public authorities, plus the relevant private companies, and have a similar scope and range of exemptions as the UK regulations.
Authorities can charge ‘a reasonable amount’ when responding to information requests, but, in contrast to the UK FOIA, there is no upper cost limit to the authority and charges are not fixed at 10 per cent of costs. So, in theory, you could bear the full costs incurred by the authority to which you apply. |
