The Scottish Information Commissioner - It's Public Knowledge
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Question Mark IconDifferences between EIRs and FOISA

The Commissioner recognises that Scottish public authorities will receive requests under both  FOISA and the EIRs regimes. 

However, all requests will technically fall within the remit of FOISA.  Section 39(2)(a) of FOISA allows an authority to exempt information which the authority is obliged, under the EIRs, to make available to the public.  This allows the authority to respond under FOISA, and go on to consider the request under the EIRs alone.  Authorities who do not claim this exemption for a request for environmental information, will be required to consider that request fully under both FOISA and the EIRs (e.g. considering how both FOISA exemptions and the equivalent EIR exceptions might apply).

Although the intention of both pieces of legislation is to allow the public access to information there are some differences between the two, for example:

  • Requests for information can be made orally under EIRs. 
  • The 20 day time period for responding to requests can be extended to 40 days where the request is complex and voluminous and would involve a considerable amount of work.
  • Provision for charging of fees is different: there is no upper or lower threshold and authorities can recover, in full, the cost of supplying the information.
  • EIRs have exceptions rather than exemptions and all of these are subject to the public interest test.
  • Information relating to emissions has special status and will have to be supplied in most cases.

Further guidance to public authorities which receive requests falling under both the EIRs and FOISA and the appropriate use of section 39(2) can be found in the Commissioner's detailed guidance.  Below is also a useful table comparing the two regimes.  

PDF icon Differences between EIRs and FOISA

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