FOI/EIR: Section 60 code of practice

Foreword

The Freedom of Information (Scotland) Act 2002 (‘FOISA’) and the Environmental Information (Scotland) Regulations 2004 (‘EIRs’) enable the public to access information held by Scottish public authorities. These regimes require authorities to either make available the information requested by a requester or to explain why the information is not being made available. Public authorities subject to FOISA must also adopt a publication scheme and publish an accompanying Guide to Information which sets out the information that they will routinely publish. The Scottish Information Commissioner (the Commissioner) is responsible for enforcing and promoting both regimes.

Throughout this code, reference to “the regimes” and to FOI is a reference collectively to FOISA and the EIRs.

Under section 60 of FOISA and regulation 18 of the EIRs, Scottish Ministers may publish a Code of Practice which describes the practice which they consider would be desirable for Scottish public authorities to follow in connection with the discharge of their functions under FOISA and the EIRs. The references to “good” or “best” practice in this Code are references to the practice the Ministers consider would be desirable. The Scottish Government has consulted the Commissioner about the content of this Code, and it has been laid before the Scottish Parliament. It supersedes the Section 60 Code of Practice issued by the Scottish Ministers in December 2016.

Since FOISA came into effect on 1 January 2005, a considerable body of guidance has been developed by the Commissioner, and this Code seeks to avoid undue duplication or overlap with this. It also avoids undue repetition of the statutory requirements contained in FOISA and the EIRs. Instead, it focusses on providing guidance on what an authority can do to ensure that best practice is demonstrated at every stage of meeting the statutory duties under FOI, including the duty to respond to requests, the duty to publish information proactively, and the duty to advise and assist requesters. Where authorities require further information on the application of FOISA and the EIRs, they should refer to the guidance published by the Commissioner.

Further guidance on records management is set out in the Code of Practice on Records Management by Scottish Public Authorities, issued in December 2011 by the Scottish Ministers under section 61 of FOISA.

By setting out best practice as it has developed since the implementation of Scotland’s FOI laws, Scottish Ministers intend this revised Code to further support and encourage Scottish public authorities to act in both the letter and spirit of the law. It stresses in particular the best practice to be followed in providing advice and assistance to requesters, and promotes the importance of proactively publishing information. As such, the Code supports and promotes the improved openness and accountability of public authorities.