Legal Framework
The Freedom of Information (Scotland) Act 2002 (FOISA) imposes several duties on Scottish public authorities concerning information that they proactively publish.
Section 23
This section of FOISA requires that authorities adopt and maintain a publication scheme that relates to the publication of information by that authority, and that is approved by the Scottish Information Commissioner. Every authority must:
- publish its scheme
- publish the information described in the scheme
- keep the scheme up to date.
A publication scheme must state:
- what information the authority publishes or intends to publish
- how the information will be published
- how to access the information
- whether the information is available free of charge or if there is a fee for it.
When authorities produce their schemes, they must consider what information they should publish in the public interest. "Public interest" is not defined in the law, but can be described as something which is of serious concern and benefit to the public. In a publication scheme this applies particularly to information which an authority should publishes about:
- its services, the cost of providing them and its performance
- the reasons for its decisions
- the facts and analysis used to inform its decisions.
The Commissioner can refuse to approve a publication scheme and can also revoke a scheme which has previously been approved. When a scheme is approved, the Commissioner can state the date the approval will expire.
Section 24
This section of FOISA provides for the development of model publication schemes for authorities of similar types. Anyone can propose a model scheme to the Commissioner for approval.
Once a model scheme has been approved by the Commissioner, it can be adopted, without amendment, by any of the public authorities which fall within the type of authority it was created for.
Section 25
This section of FOISA includes a number of exemptions which authorities may be able to apply where information is "otherwise accessible". The exemption in section 25(3) provides grounds for refusing a request for information that is already published through a publication scheme. The Commissioner has published a detailed briefing on these exemptions.
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