Guidance for elected members

Here are some key questions and answers about freedom of information to help MSPs, Councillors, staff and constituents understand and make use of FOI.

Who can I ask?

You can ask for information from any Scottish public authority – Scottish Government, non-departmental bodies or agencies, the Scottish Parliament, the Police and emergency services, local authorities, NHS health boards, colleges and universities. For UK bodies, such as UK Government departments, your rights are enforced under the UK FOI Act.

In addition to those listed under Schedule 1 of the FOI Act in Scotland, publicly owned companies such as Caledonian MacBrayne Ltd, and other designated bodies such as leisure trusts or special schools are also subject to the FOI Act.

It is important to note that the number of bodies covered by the FOI Act is smaller than the number of bodies covered by the Environmental Information Regulations – so an environmental request may have wider application than an FOI request.

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Are elected members covered by FOI law?

Elected members are not subject to FOI, as they are classed as individuals, not "public authorities". Political parties are also not defined as "public authorities" in FOI law. The information elected members create on constituency, or party political, business is not covered. This means that correspondence with constituents as part of their democratic engagement is also not covered by FOI law. If they receive requests, MSPs or Councillors may choose to answer them, but in so doing would not be bound by FOI law.

However, in certain circumstances, information relating to elected representatives may be covered by FOI law if:

  • they correspond with a public authority on behalf of constituents. For example, if a Councillor writes to a local authority about the closure times of the libraries in their ward, the information is likely to be held by the authority for the purposes of FOI.
  • they are acting in the capacity of a formal position within an authority. For example, if an MSP is also a Minister and they hold a meeting with a trade body about the development of a policy, the information is likely to be held by the Scottish Government for the purposes of FOI. If the MSP is a Convener of a Parliamentary Committee, the information is likely to be held by the Scottish Parliament for the purposes of FOI.
  • the authority in which they work holds information about them. For example, if there are minutes of meetings, expenses information or employment matters, this information is likely to be held by the authority (e.g. the Parliament or the Council) for the purposes of FOI.

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Can an elected member make a request on behalf of a constituent?

Yes, there is nothing to stop anyone making a request on behalf of another person, whether it's an MSP on behalf of a constituent or a researcher on behalf of an MSP. However, all information requests must contain the name of the person on whose behalf the request is made, in order for the request to be valid.

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Do Parliamentary Questions qualify as FOI requests?

The rules around making and responding to PQs are different to those for FOI. Therefore, PQs are not considered valid information requests for the purposes of FOI law. This means PQs don't carry with them the same appeal rights as FOI requests.

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Is it already published?

Authorities are required by law to proactively publish information that may be of interest to the public. This includes meeting minutes, board papers, information on procurement, spending, operational performance etc. This should all be set out in their "Guide to Information" on their website. It is often worth doing an internet search to find out if the information has already been published before making your request.

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How do I ask?

You are not required to cite any legislation and you don't need to say why you want the information. Just make your request in a form that can be kept for future use (writing, email, fax, audio or video tape), giving your real name and email or postal address. There is a slightly different process for environmental requests, which allows you to make requests over the phone.

Although you don't have to, it can speed the process up if you use the authority's dedicated FOI email address if they have one advertised on their website. Clearly describe the information you want to avoid any misunderstanding or the need for clarification. If you want the information in a particular format, such as a photocopy or electronic file, do specify, and the authority must, as far as is reasonable, meet your needs.

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What can I ask for?

The FOI Act and Environmental Information (Scotland) Regulations (EIRs) give you a legal right to information "held" (as defined in the Act) by Scottish public authorities. This includes any kind of information recorded and held by the authority - information on paper, electronic files, spreadsheets, email, or audio/video.

If your request is about environmental information, the authority should look at it under the EIRs - you don't have to make the distinction yourself. The definition of "environmental information" includes the environment itself such as air, water, earth, and the habitats of animals and plants, things that affect the environment such as emissions, radiation, noise and other forms of pollution, and policies, plans and laws on the environment.

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Can I make requests to multiple bodies?

You can submit the same request to different authorities - such as all health boards, or all local authorities. However, because they may differ in the way they hold the information, and what they hold, you may get slightly different responses from each.

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Can I ask for personal information?

If you ask for your own or a constituent's personal information (such as medical records), make a Subject Access Request (SAR) rather than an FOI request. SARs fall under data protection law and are enforced by the UK Information Commissioner's Office. You can ask for someone else's personal information under FOI, but the authority may refuse the request, or redact elements from what they disclose.

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What happens to a request?

Authorities take different approaches to handling requests. For some larger authorities, such as the Scottish Government, a request may be received by a central "FOI unit", who triage it and send it on to the "case-handler" in the department(s) that hold(s) the relevant information. They will identify the information covered by the request, apply any exemptions and issue the response. The FOI unit may provide additional advice and track the progress and outcomes of requests. For complex or sensitive requests, cases may be referred to more senior decision-makers before a response is issued. However, every authority is different. For smaller authorities, for example, there may only be one FOI officer responsible for the processing the request from start to finish.

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What might it cost?

Most authorities won't charge for providing the information requested. If there is a fee, it's likely to be small, and the authority will send you a "fees notice". The fee can be levied for staff time for gathering, or for providing, the information in a different format. For FOI requests the fee is capped at £50, but there are different rules for requests for environmental information.

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How long will I have to wait?

Authorities should provide a response (not just an acknowledgement) as quickly as possible, and within 20 working days of your request. If an authority has not responded within the statutory time limit, treat this as a "mute refusal" and you have a right to ask for an internal review.

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Why might my request be refused?

While information should usually be made available on request, there may be some circumstances where your request is refused. This can include:

  • the information is exempt from release
  • the authority does not have (or "hold") the information
  • your request is not clear enough for the authority to find the information (at which point they should seek clarification
  • it will cost the authority more than £600 to provide the information (at which point they may issue a Fees Notice)
  • the authority believes your request is "vexatious"
  • you have asked for information that has already been given to you, or refused
  • you have asked for the information to be given to you in a format that they cannot reasonably provide.

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What information might be exempt from release?

There are some limited exemptions under FOI law that allow authorities to refuse to disclose information. This could include:

  • if documents are in preparation for court cases
  • if there would be significant harm caused by the release of the information
  • if the information is commercially sensitive or confidential
  • if releasing the information would compromise national security or international trade.

The exemption does not have to apply to the whole request, and the authority may disclose parts and redact other parts. They must tell the requester the reason for the exemption, and outline their rights of appeal.

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Why else might information be exempt?

FOI law allows various exemptions for matters relating to policy development. Examples are for the formulation or development of government policy, Ministerial communications, provision of advice by law officers and the operation of a Ministerial private office. Another allows public authorities to refuse to disclose information if they already plan to publish it within the next 12 weeks.

Exemptions also exist for information where disclosure would be likely to prejudice relations between UK governments, the UK's international relations, or communications with members of the Royal Family. If disclosure would cause harm to collective Ministerial responsibility, the free and frank provision of advice and the effective conduct of public affairs, the information may also be exempt.

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What's the "public interest test"?

Most (though not all) exemptions under the FOI Act are subject to a "public interest test" - these are known as "qualified exemptions". In these circumstances, the public authority must also consider whether it would be in the public interest for the information to be released. If the benefit to the public is greater than the harm to the authority or other people affected, the authority must release the information. Where the competing public interests are evenly balanced, the information should also be disclosed. In deciding whether it is in the public interest to provide information the authority should NOT take into account:

  • the possibility of embarrassing officials
  • possible loss of confidence in the authority the seniority of the people involved, or
  • the risk of misinterpretation of the information.

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What if I'm unhappy with the response?

If you are unhappy with a response to a request (or if you haven't had a response at all), you have a right to ask for an internal review, which is where a different person within the same authority looks at your request afresh. Make sure you ask for a review and explain your reasons for dissatisfaction. Once they've received your review request, they have a further 20 working days to respond. They may uphold the original decision in full or part, or give you a different decision. Often reviews lead to more information being disclosed to requesters.

You have a legal right of appeal if you are unhappy with the way an authority has responded to your review request (or if you haven't had a response). If you have had an unsatisfactory response to your review, you can appeal to the Scottish Information Commissioner, again stating the reasons for your dissatisfaction. If the appeal is valid, the Commissioner will conduct a full investigation and has powers to compel authorities to release information.

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What is a "vexatious" request?

Authorities don't have to comply with requests that are "vexatious". These provisions provide a way of dealing with the few cases that are unreasonable, would impose a significant burden on authorities' financial and human resources, or are deemed to be vexatious because of other impacts on the authority. Requests may be inconvenient and meeting them may at times stretch an authority's resources, but these factors on their own are not sufficient grounds for an authority to deem a request vexatious. There is a similar provision for requests for environmental information, called "manifestly unreasonable" requests.

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Which Information Commissioner?

The Scottish Information Commissioner enforces and promotes your right to access information held by Scottish public authorities. This right includes a right to appeal.

The UK Information Commissioner's Office (ICO) does the same for UK public authorities. The ICO also enforces privacy/data protection law across the whole of the UK.

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