Step 2: Responding to a section 1 request

All of the following must be done within 20 working days

• If the information is held by you and is not exempt, the application is not vexatious or repeated and there are no issues with fees, send the information.

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Under the EIRs, this 20 working day period can be extended by up to a further 20 working days if the information request is voluminous and complex. Public authorities need to tell applicants if they are going to extend the 20 working day period in this way.

• If the information is not held by you, issue a notice in line with s17 of FOISA to say that the information is not held (see appendix A).
  
  Remember your duty to advise and assist under s15 – if you know who does hold the information, tell the applicant or, exceptionally, transfer the case in line with the Section 60 Code of Practice. Failure to comply with the Section 60 Code can lead to a breach of s15 of FOISA.

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Separate rules for transferring cases are contained in reg.14 of the EIRs.

• If the information is held by you, but you consider it to be exempt, issue a notice under s16 of FOISA (see appendix B).

• If the information is held by you but you consider it to be exempt under one of the exemptions in ss28-35, 39(1) or 41 and you consider that it would not be in the public interest to admit whether the information is held or not, issue a notice under s18 of FOISA.

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There is no equivalent of this in the EIRs

• If, under the fees regulations, there will be a charge for providing the information, issue a fees notice under s9 of FOISA (see appendix D). (The 20 working day clock stops at this point and restarts when the fee is received.)

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The Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004

The charging regime in the EIRs is very different.It simply allows public authorities to make a reasonable charge for providing information – reg.8

• If the cost of dealing with the request is more than the maximum in the fees regulations, issue a notice under s16(4) (see appendix E).

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There is no equivalent of this under the EIRs although a public authority may refuse to release information if the request for information is ‘manifestly unreasonable’ – reg.10(4)(6).

• If you consider that the request is vexatious or repeated, issue a notice under s16(5) (see step 5).

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Again, there is no equivalent of this under the EIRs although a public authority may refuse to release information if the request for information is ‘manifestly unreasonable’ – reg.10(4)(6).