The Scottish Information Commissioner - It's Public Knowledge
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Duty to Respond150pxlThe duty to respond to requests

FOI law gives people a right to receive information held by Scottish public authorities.

It places a legal duty on authorities to respond to the requests for information they receive, and gives requesters a right of appeal if they are unhappy with the outcome.

 

Legal requirement

The FOI Act and the EIRs place a number of legal requirements on authorities in relation to the duty to respond. Key features are:

  • Information requests must be responded to promptly, and within 20 working days
    You must respond within 20 working days, providing the information or setting out why, according to FOI law, it can't be provided. If the information is environmental timescales can be extended by another 20 working days, but only in rare cases where requested information is both "voluminous and complex".
  • Requesters don't have to mention FOI law
    They only have to ask for information and provide a name and contact details for a response. They don't have to mention the FOI Act or the EIRs, or say why they want the information.
  • Requests can only be refused if FOI law allows it
    Authorities can only refuse requests if the law allows them to: for example, if an FOI exemption or an EIR exception applies. If an exemption or exception applies to only some of the requested information, the remaining information must be disclosed.
  • Exempt information may be disclosed in the public interest
    Where an FOI exemption or EIR exception applies, in most cases authorities must also consider the public interest in disclosure. If it is in the public interest to do so, the information should be released.
  • Authorities can charge for information
    While many authorities choose not to do so, in some cases FOI law allows organisations to charge a fee for disclosing information. The amount authorities can charge differs under the FOI Act and the EIRs.
  • Requesters have a right of appeal
    If a requester is unhappy with the outcome of a request for any reason they have the right to ask an authority to review its response. The authority will have a further 20 working days to reconsider the request. If, after the review, the requester is still unhappy, they can appeal to the Commissioner.
  • The Scottish Information Commissioner can order disclosure
    If, following an appeal, the Commissioner finds that an authority has wrongly withheld information, the authority may be ordered to disclose it. The Commissioner's decisions are legally binding, although an appeal on a point of law may be made to the Court of Session.
  • It's an offence to hide, change or destroy information to prevent disclosure
    FOI law makes it a criminal offence to alter or conceal information to prevent disclosure in response to a request.


Responding to requests

Authorities must respond to the information requests they receive. A response can be any one of the following:

Common responses:
 

  • Disclosure of the information
    Giving the requester all the information they asked for is by far the most common - and easiest - way to respond to requests.
  • A notice that information is not held
    If you don't hold the information, you must give the requester a notice under the FOI Act or the EIRs saying this is the case.
  • A notice that information is being withheld
    You can withhold information if it falls within scope of an FOI exemption or EIR exception and the public interest (where it applies) is in favour of withholding the information. You must tell the requester why the exemption or exception applies.
  • A combined response
    Sometimes you will disclose some information and withhold other information, or tell the requester other information is not held. In cases like this, you should disclose what you can, and give appropriate reasons for not providing the other information.

Less common responses:

  • A refusal because of excessive cost
    If disclosing the information under the FOI Act would cost more than £600, or if the request is for environmental information and is 'manifestly unreasonable' you can refuse the request. You must tell the requester why you are not going to answer and give reasonable advice and assistance to help them narrow their request.
  • A request for clarification
    If a request is too unclear to respond to, you can ask for clarification. The twenty working day 'clock' won't start until you receive a clear request. Remember though, that any clarification request must be reasonable.
  • A fees notice
    If you decide to charge a fee under the FOI Act or the EIRs you must issue a fees notice. This must set out the fee to be paid, explain how you calculated it and offer any advice and assistance on how the requester might narrow their request to avoid the fee. If the fee is paid you must provide the information.
  • A 'vexatious or repeated' refusal
    You can refuse requests under the FOI Act that are vexatious or repeated and requests under the EIRs that are 'manifestly unreasonable'. You must be able to evidence the reasons for your decision to the Commissioner if there is an appeal.
  • A 'neither confirm nor deny' notice
    In rare circumstances you can refuse to confirm whether information is even held. This can  be done in  under section 18 of the FOI Act or regulations 10(8) and 11(6) of the EIRs.

Remember that, in all circumstances, you have a duty to advise and assist requesters.

Further guidance on what should be included in response notices is available here..

 

Responding to requests for review

If a requester is unhappy with an FOI or EIR response, they can ask the authority to review its handling of the request.

A request for review must:

  • refer to the original request
  • say why the requester was unhappy with the response
  • include the requester's name and address (email or postal)

The requester doesn't have to specifically ask for a review - if they explain why they're unhappy with the response this will be enough.

As with initial requests, reviews must be responded to promptly, and within 20 working days.

A review enables an authority to take a fresh look at the request, and provides a chance to correct any errors. It's good practice for a review to be carried out by someone who was not involved in the initial response, to ensure that it is fair and impartial.

The outcome of a review can either:

  • confirm the original decision
  • replace the original decision with a different one
  • reach a decision for the first time (e.g. for reviews about a failure to respond within 20 working days).

A review response must also contain details of the requester's right of appeal. Further guidance on the content of response notices is available here.

 

 

Steps to take

  1. Familiarise yourself with the statutory requirements of the FOI Act and the EIRs
  2. Read the Scottish Ministers' FOI Code of Practice guidance on responding to requests and requests for reviews.
  3. Read the Scottish Ministers' Code of Practice on Records Management and review your own records management procedures. Good records management is key to effective FOI. Will your records management procedures enable you to search for, locate and retrieve information quickly and effectively in response to requests?
  4. Prepare procedures for responding to information requests and requests for review, taking into account the statutory requirements and the Scottish Ministers' Codes of Practice. You can also look at what other authorities do. For example, the Commissioner's request handling procedures are available here. Remember that your own procedures must be tailored for your organisation.
  5. Support your procedures with letter templates that include standard text, such as review and appeal rights.
  6. Train staff. Ensure all staff are aware of your authority's duty to advise and assist people requesting information, and know where to pass any requests they receive for a response. Make sure that staff who will respond to requests are trained on the specific requirements contained in FOI law and the Scottish Ministers' Codes of Practice.

Best practice tips

  • Start now - don't leave your preparations until the last minute
  • Involve senior management - make sure they understand the new statutory duties and ask them to promote the benefits of effective FOI to staff across the organisation.
  • Look out for requests - a request can come in to any part of your organisation. Will staff across the authority know what to look out for?
  • Read requests carefully - ensure you fully understand each request from the outset.
  • Search thoroughly - make sure you search thoroughly for all requested information, so that your final decision is based on the actual information you hold
  • Is the information environmental? - check whether the response should be made under the FOI Act or the EIRs
  • Always think first about disclosing information - this is always much easier than withholding information
  • Apply any exemption tests carefully - refer to our briefings to help you get it right
  • Take account of specific circumstances - every information request should be dealt with on a case-by-case basis.
  • Respond on time - always respond within the twenty working day limit to avoid time-consuming reviews or appeals. Start every response early to avoid running out of time.
  • Treat FOI as part of customer service - take a customer-focussed approach to your FOI duties. Always remember your duty to advise and assist.


 

Resources

  • Twitter - follow the Commissioner on twitter to receive updates on new decisions, events, resources and guidance
  • Decisions Round-up - a regular round-up of the decisions published by the Commissioner under FOI law

 

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