The Scottish Information Commissioner - It's Public Knowledge
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If an information request is left on my voice-mail, do I have to treat it as a valid request under FOISA or the EIRs?

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.


If someone asks for information during a telephone conversation, is it a valid request under FOISA or the EIRs?

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.


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.

I worry about information requests emailed to me while I am on holiday. What should I do?

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.


FOISA says that a request must contain a name and address. What if I only have the first name or e-mail address of the applicant?

A request must include the name of the person making the request. Requests that only give a first name - or use a pseudonym - will not be valid. This means that the authority does not have to provide information, and the person making the request will have no right of appeal to the Commissioner. At the very least, a request should include an initial and a surname. Where a request is made by email it is important that the full name appears in the body of the request; it's not enough for it to appear in the email address alone.

Authorities receiving a request which gives only a first name should advise the applicant how they can make a valid request.

Authorities should note that the same rules won't necessarily apply under the EIRs.


Do I have to deal with a request which comes in from someone who has obviously given me a false name, such as Mickey Mouse?

FOISA states that an information request must include the name of the applicant. This must be the real name of the applicant. So, if a request comes in from someone who has obviously given a false name, the application is invalid and the public authority does not have to deal with it. However, FOISA does not allow public authorities to enquire into the circumstances of the applicant or to ask for information in order to verify identities. As a result, unless you know for sure that the applicant has used a pseudonym, it will be difficult to refuse to deal with an information request on that ground.

A better starting point is the assumption built into FOISA that public authorities must generally discount the identity and circumstances of the applicant and must regard any release of information as if it were a release to the world at large. This approach recognises that applicants cannot gain any advantage by using a pseudonym.

You should also remember your duty to provide advice and assistance to an applicant under section 15 of FOISA. So, if it is obvious that a pseudonym has been used, you should tell the applicant that if they make the request under their own name then you will deal with the request. It may be that the applicant has particular reasons for not revealing their identity but rather than using a false name it is open to them to ask a friend or relative to make the request instead.


What does "vexatious" mean

Section 14(1) of FOISA allows an authority to refuse to deal with a request which is "vexatious".  However there is no definition of "vexatious" in the legislation.  When passing the Act, the Scottish Parliament opted to give the Commissioner scope to interpret "vexatious" over time in light of experience and precedent.

There's no definitive set of criteria or formula for determining whether a request is "vexatious".  The request must be considered on the merits of the case, and (most importantly) the authority must provide clear, specific and well-reasoned evidence.  However, the following factors may be relevant in deciding if a request is "vexatious":

  • It would impose a significant burden on the authority.
  • It does not have a serious purpose of value.
  • It is designed to cause disruption or annoyance to the authority.
  • It has the effect of harassing the authority.
  • It would otherwise, in the opinion of a reasonable person, be considered to be manifestly unreasonable or disproportionate.

More guidance on what these factors mean, how to test them, and what evidence the authority will need, is in the Commissioner's section 14 Briefing: Section 14 Briefing: Vexatious or Repeated Requests

This is not an exhaustive list. Depending on the circumstances (and provided the impact on the authority can be supported by evidence), other factors may be relevant.


Can request for environmental information be "vexatious"

Section 14(1) does not apply to requests for environmental information.  These are covered by the EIRs.  However regulation 10(4)(b) of the EIRs allows an authority to refuse to deal with a request for environmental information where it is "manifestly unreasonable".  Again, there is no definition of "manifestly unreasonable" in the legislation.  However, the Commissioner expects that the same kind of factors which apply to "vexatious" requests under FOISA are likely to apply to "manifestly unreasonable" requests under the EIRs.  Given that there is no maximum cost limit in the EIRs as there is in FOISA, a request might also be manifestly unreasonable under the EIRs simply because of the size of the request.


Can an authority designate an individual requester as "vexatious"?

No.  An authority can only apply the term "vexatious" to the request ? NOT the applicant.  It's the nature and effect of a particular request ? not the identity of the requester ? which determines whether a request is vexatious.  In other words, an authority cannot automatically find a request vexatious because of who the applicant is.

Having said that, the history of an applicant's dealings with the authority may be relevant.  If a particular request continues a pattern of behaviour which has been found vexatious elsewhere, this may be a reasonable factor to take into account when deciding if the request is vexatious.

For example, a requester has an on-going grievance with an authority, or is conducting an extended campaign to the point that their behaviour is obsessive. The authority might be able to argue, in the light of this, that their request is vexatious.  However, there is still the need to provide clear, well-reasoned evidence to justify this course of action.


I subscribe to an e-mail discussion group. Will requests for information made to the discussion group be valid information requests?

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.


Can freedom of information requests be made using sites such as Facebook and twitter?

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  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

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.


A member of staff has made a request for information and says that it is a freedom of information request. Is this the case?

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.


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