A review of Scotland’s ATI publication scheme

Access to information regime – ScotlandFootnote 1

Three pieces of legislation govern Scotland’s access to information regime:

Scottish laws

  • The Freedom of Information (Scotland) Act 2002
  • The Environmental Information Regulations 2004
  • The INSPIRE Regulations 2009

The Freedom of Information (Scotland) Act – 2002Footnote 2

  • The Freedom of Information Act (2002) came into force in 2005, and introduced a general statutory right of access to all types of ‘recorded’ information of any age held by Scottish public authorities.
  • Public authorities subject to the Act are required to respond to access requests and make a lot of information publically available by way of a Guide to Information, commonly referred to as a “publication scheme”. The authority’s responsibility in this regard is called the “publication scheme” duty.
  • The Act requires public authorities to adopt and maintain a publication scheme that sets out the types of information that they commit to routinely publish. The Act outlines the duty of all authorities to adopt and maintain a current publication scheme. The Act also sets out the power of the Information Commissioner to refuse or approve a public authority’s publication scheme.
  • Under the Act, public authorities are under a legal obligation to:
    • Publish the classes of information that they make routinely available;
    • Tell the public how to access the information they publish and whether information is available free of charge or on payment.
  • A requester is encouraged to search the public authority’s website before making a request. If information is available with a publication scheme, he or she does not have to make a request under the Act. Most of the information that an authority publishes under the scheme is free of charge or available for a small fee. It there is a charge, the publication scheme will provide information. The charge for providing some information, for example a birth and marriage certificate, may be set by other laws.
  • If a formal request is needed to obtain information, a public authority has the duty to help the requester make their request. Authorities have 20 working days to respond to a request.
  • A publication scheme should be available on the authority's website, or on request. If the publication scheme is on the authority's website, the requester can access the scheme and links to copies of documents that can be downloaded or read online.
  • The Act allows for the development of model publication schemes which can be adopted by more than one authority.
  • The Scottish Information Commissioner has produced and issued a model publication scheme that is available for public authorities. Authorities can also develop their own scheme, provided they meet the Information Commissioner’s standards and the scheme is approved.Footnote 3
  • Adoption of the model publication scheme commits an authority to:
    • Adopt the scheme without amending it.
    • Publish the information, including environmental information, that it holds which falls within the eight different classes of information set out by the Commissioner.Footnote 4
    • Ensure that the way it publishes its information meets the Model Publication Scheme 2015 Principles.Footnote 5
    • Publish a Guide to Information which sets out the information the authority publishes through this model scheme, how to access it, whether there is a charge for it and how to get help to access information.
    • Notify the Scottish Information Commissioner that it has adopted the model scheme.
  • Where an authority fails to meet these commitments, it cannot be considered to have adopted the model scheme and may be failing in its duty to adopt and maintain a publication scheme in line with the Freedom of Information Act.Footnote 6
  • The Information Commissioner has an Enforcement policy that sets out what it will do in the event of non-compliance with the publication scheme duty. Under the Act, the Information Commissioner may issue an Enforcement Notice requiring the authority to comply. If the authority fails to comply, the Commissioner may refer the matter to the Court of Session (the highest court in Scotland). The court may decide to treat the authority as if it has committed a contempt of court. The penalty is 2 years imprisonment or an unlimited fine.
  • The Scottish Information Commissioner’s office has issued few Enforcement Notices for publication schemes, and in all cases the authorities have compliedFootnote 7.

The Scottish Information Commissioner

  • The Scottish Information Commissioner, Rosemary Agnew, is a fully independent public official who is mandated to both promote and enforce Scotland's freedom of information laws.
  • She promotes and enforces both the public’s right to ask for the information held by Scottish public authorities, and good practice by authorities.
  • Through her work she supports the openness, transparency and accountability of public bodies. Her duties include:
    • The promotion of good practice amongst public authorities;
    • Investigating applications and issuing legally enforceable decisions;
    • Approving and assisting in the preparation of publication schemes;
    • Providing the public and authorities with information on the operation of the Act; and
    • Enforcing compliance with the Act.Footnote 8

Requesters are encourages to visit the Information Commissioner’s website for a variety of guidance on the Scottish Laws. This includes the complete list of public authorities, best practices for requesters and public authorities, information on the purpose and use of publication schemes, in addition to the Information Commissioner’s Model Publication Scheme.

Figure 1: Classes of information

The Information Commissioner’s Model Publication Scheme

The publication scheme sets out the types of information that a public authority routinely makes available. These are referred to as “class” of records and each class of record has a description. Below is a table provided by the Information Commissioner as a Model (example) for public authorities.

Class Description

1 About the authority

Information about the authority, who we are, where to find us, how to contact us, how we are managed and our external relations

2 How we deliver our functions and services

Information about our work, our strategies and policies for delivering functions and services and information for our service users

3 How we take decisions and what we have decided

Information about the decisions we take, how we make decisions and how we involve others

4 What we spend and how we spend it

Information about our strategy for, and management of, financial resources (in sufficient detail to explain how we plan to spend public money and what has actually been spent)

5 How we manage our human, physical and information resources

Information about how we manage the human, physical and information resources of the authority.

6 How we procure goods and services from external providers

Information about how we procure goods and services and our contracts with external providers

7 How we are performing

Information about how we perform as an organisation and how well we deliver our functions and services

8 Our commercial publications

Information packaged and made available for sale on a commercial basis and sold at market value through a retail outlet e.g., bookshop, museum or research journal.

Figure 2: Principles of the 2015 Model Publication Scheme

Information in a publication scheme must be consisted with the Model Publication Scheme principles. These principles govern how authorities must publish their information.

Principle 1: Availability and formats

A) Information published through this model scheme should, wherever possible, be made available on the authority’s website.

B) There must be an alternative arrangement for people who do not wish to, or who cannot, access the information either online or by inspection at the authority’s premises. An authority may, for example, arrange to send out information in paper copy on request (although there may be a charge for doing so).

Principle 2: Exempt information

C) If information described by the classes cannot be published and is exempt under Scotland’s freedom of information laws (for example sensitive personal data or a trade secret), the authority may withhold the information or provide a redacted version for publication, but it must explain why it has done so.

Principle 3: Copyright and re-use

D) The authority’s Guide to Information must include a copyright statement which is consistent with the fair dealing provisions of the Copyright, Designs and Patents Act 1988. Where the authority does not hold the copyright in information it publishes, this should be made clear.

E) Any conditions applied to the re-use of published information must be consistent with the Re-Use of Public Sector Information Regulations 2005.

F) The Commissioner recommends that authorities consider using the Open Government Licence, produced by the National Archives for their published information.

Principle 4: Charges

G) The Guide to Information must contain a charging schedule, explaining any charges and how they will be calculated.

H) No charge may be made to view information on the authority’s website or at its premises, except where there is a fee set by other legislation, for example, for access to some registers.

I) The authority may charge for computer discs, photocopying, postage and packing and other costs associated with supplying information. The charge must be no more than these elements actually cost the authority e.g. cost per photocopy or postage. There may be no further charges for information in Classes 1–7. An exception is made for commercial publications (see Class 8) where pricing may be based on market value.

Principle 5: Contact details

J) The authority must provide contact details for enquiries about any aspect of the adoption of the model scheme, the authority’s Guide to Information and to ask for copies of the authority’s published information

K) The Act requires authorities to provide reasonable advice and assistance to anyone who wants to request information which is not published. The authority’s Guide to Information must provide contact details to access this help.

Principle 6: Duration

L) Once published through the Guide to Information, the information should be available for the current and previous two financial years. Where information has been updated or superseded, only the current version need be available (previous versions may be requested from the authority).


Footnote 1

All information on the Scottish Publication Scheme was found on the Scottish Information Commissioner’s website.

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Footnote 2

Information taken from the Scottish Government’s website.

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Footnote 3

The Scottish Information Commissioner is trying to get all authorities using the same model publication scheme as a basis, so he can redirect his attention from the approval of independent schemes, and toward actively assessing whether authorities are publishing information in accordance with the scheme.

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Footnote 4

See Figure 1 for a list of the eight classes of information.

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Footnote 5

See Figure 2 for a list of the Model Publication Scheme 2015 principles.

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Footnote 6

Section 23 deals with publication schemes, and lays out the duty of each authority to have a scheme, publish information in accordance with that scheme, and review the scheme from time to time. See the following URL for more on publication schemes within the Freedom of Information (Scotland) Act (2002).

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Footnote 7

This information was obtained by the OIC on March 3, 2016.

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Footnote 8

The Scottish Information Commissioner is not responsible for enforcing Data Protection legislation, and is completely independent from the UK Information Commissioner. The UK Information Commissioner is responsible for policing and enforcing the Data Protection Act 1998, and the UK Freedom of Information Act 2000. The latter does not apply to bodies covered by Scottish legislation.

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