New guidance

The Commissioner publishes a range of guidance to assist authorities in dealing with their responsibilities under Scotland FOI regime. During 2009 the Commissioner issued detailed guidance on handling requests for environmental information, as well as an updated briefing to assist authorities when dealing with requests involving personal information. In addition, guidance on a 2009 Opinion of the Court of Session was published early in 2010.

Handling requests for environmental information...

The Environmental Information (Scotland) Regulations 2004 (the EIRs) are separate and distinct from the FOI Act, and govern access to the environmental information held by Scottish public authorities. The separate status of the EIRs arises from their having a basis in European legislation (a Directive) designed to give effect to 1998 'Aarhus Convention'. That Directive established a number of Europe-wide public rights in relation to the environment, including the right to the environmental information held by public authorities.

In the early days of freedom of information it is fair to say that the FOI Act took precedence, and the default position of many authorities was to deal with most requests under FOI, regardless of whether or not the information may be 'environmental'. Indeed, the Commissioner has published a number of decisions where he has found that requests for environmental information have been incorrectly dealt with under the FOI Act.

It is extremely important, however, that requests are processed under the appropriate regime, not least because there are critical differences between the two pieces of legislation. These differences mean that the outcome of a request processed under the EIRs will often be fundamentally different to one dealt with under FOI.

For example, under FOI some exemptions are subject to a 'public interest test'. This sets out that information covered by the exemption must be disclosed if the balance of the public interest favours disclosure. The public interest test does not apply, however, to some of the FOI Act's exemptions, including those applying to personal information or to information held in court records.

Under the EIRs, all exceptions have this test in place. It is therefore essential that authorities process requests correctly, in order to ensure that the specific information rights of requesters are appropriately recognised and respected.

The Commissioner's guidance aims to support authorities in doing this, providing practical advice to assist public authorities in identifying and responding to requests under the EIRs. Helping authorities to get it right, first time, every time.

The Commissioner's EIR guidance is available to download on his website at www.itspublicknowledge.info/briefings.

For details of all cases issued by the Commissioner in 2009 which involve the consideration of the EIRs, click here.

...and requests for personal data

Updated guidance on handling requests involving personal information was also published during 2009. The relationship between freedom of information and data protection legislation is complex, with one being founded on openness, and the other existing to ensure the privacy of personal data. It is unsurprising, then, that the personal information exemption is one of the most common exemptions considered by the Commissioner in the cases brought before him.

The updated guidance brings together precedent emerging from the Commissioner's decisions on personal data, as well as taking into account guidance issued by the (UK) Information Commissioner, who has responsibility for the Data Protection Act throughout the UK. The guidance also references relevant court rulings, including the 2008 House of Lords ruling on the release of childhood leukaemia statistics in Dumfries and Galloway.

The personal information guidance is also available from the Commissioner's website at www.itspublicknowledge.info/briefings.