The Scottish Information Commissioner - It's Public Knowledge
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Responding to Requests for Information

How should requests for information under the Freedom of Information (Scotland) Act (FOISA) be processed?

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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How should written requests for environmental information be processed?

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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How should verbal requests for environmental information be processed?

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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What do I do if I am uncertain whether the requested information constitutes "environmental information"?

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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What do I do if a request seeks access to both "environmental" and "non-environmental" information?

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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What do I do if at internal review stage we decide that an application should have been considered under the EIRs and not the Act (or vice versa)?

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?

See our guidance on  Information or documents

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FOISA says that information which I hold on behalf of another body isn't held by me, which means I don't have to disclose it. What does FOISA mean by information "held on behalf of" another person?

See our guidance on Information not held

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Are information requests made to councillors valid under FOISA?

See our guidance on Information not held FOISA

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I've received a request for electronic information which has been deleted. The IT Department say that a specialist might be able to retrieve the information. What should I do?

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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I've been asked to release information which is third party copyright. Can I release the information without breaching the Copyright Act?

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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I've received a request which asks me to release information but also to provide some statistical analysis. Do I have to do this? Can I charge for doing this?

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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