Part 2 - Exempt information

89. Part2 of the Act sets out the categories of information which are exempt from the general entitlement to information held by Scottish public authorities. Other than for those exemptions which are defined in section2 as being absolute exemptions, the public interest test in that section must be considered. Part5 of the Act sets out certain provisions covering periods after which information ceases to be exempt.

Section25 - Information otherwise accessible

90. This section provides an absolute exemption for information which is otherwise accessible to the applicant. The exemption covers information which is available on the payment of a fee or charge, and information available by virtue of other legislation. An example would be birth, death or marriage certificates available under other legislation. The exemption also sets out that information(other than information which the authority is statutorily obliged to make available, or information held by the Keeper of the Records) cannot be exempt on the basis that is reasonably obtainable merely because it is available from the authority which holds it - unless it is made available in accordance with that authority's publication scheme and any payment required is specified in or determined in accordance with the scheme.

91. Section25(2)(b)(ii) sets out the circumstances when information held by the Keeper of the Records of Scotland is to be taken to be reasonably obtainable, and hence exempt.

92. Essentially, the exemption provides that the full provisions of the Act need not apply to information which is otherwise accessible to the applicant.

Section26 - Prohibitions on disclosure

93. This section provides an absolute exemption (i.e. the public interest test does not apply) for information the disclosure of which by a Scottish public authority is subject to a prohibition on disclosure. An authority withholding information from disclosure under the terms of this exemption would be expected to state what enactment or Community obligation etc. prevented its disclosure.

Section27 - Information intended for future publication

93. 94.      Section27 provides that information may, in certain circumstances, be exempt if it is information intended for future publication. The public interest test in section2 applies.

Section28 - Relations within the United Kingdom

95.      This section exempts information if its disclosure would, or would be likely to, prejudice substantially relations between any administration in the United Kingdom and other such administrations as defined in the section. The public interest test in section2 applies.

Section29 - Formulation of Scottish Administration policy etc.

96.      This section exempts as a class information held by the Scottish Administration if it relates to the formulation of Scottish Administration policy; and sets out the circumstances when statistical information and factual background information may be exempt. The public interest test in section2 applies.

Section30 - Prejudice to effective conduct of public affairs

97.      This section exempts informationif its disclosure would prejudice substantially the maintenance of the convention of the collective responsibility of the Scottish Ministers, or where its disclosure would inhibit substantially the free and frank provision of advice or exchange of views. The public interest test in section2 applies.

Section31 - National security and defence

98.      This section exempts information if exemption is required for the purpose of safeguarding national security; and information the disclosure of which would, or would be likely to, prejudice substantially the defence of the British Islands. The public interest test in section2 applies.

Section32 - International relations

99.      This exemption protects information whose disclosure would substantially prejudice the effectiveness of the conduct of international relations. The public interest test in section2 applies.

Section33 - Commercial interests and the economy

100.      This section protects against the disclosure of commercially sensitive information, including trade secrets. It also protects against the disclosure of information which could be damaging to the economic interests of the United Kingdom. The public interest test in section2 applies.

Section34 - Investigations by Scottish public authorities and proceedings arising out of such investigations

101. This section covers a range of information associated with investigations carried out by Scottish public authorities. The public interest test in section2 applies.

Section35 - Law enforcement

102. This exemption covers a range of information relating to law enforcement. It also applies to information relating to relevant civil proceedings brought by or on behalf of Scottish public authorities. The public interest test in section2 applies.

Section36 - Confidentiality

103. Essentially section 36(1), to which the public interest test in section 2 applies, provides an equivalent in Scotland for information for which "legal professional privilege" may be claimed in England.

104. Section36(2) exempts absolutely information obtained from another person if its disclosure would constitute a breach of confidence actionable by that person or any other person.

Section37 - Court records, etc.

105. This section provides an absolute exemption for information (except information held by a Scottish public authority for the purposes of an inquiry instituted under the Fatal Accidents and Sudden Deaths Inquiry(Scotland) Act 1976) contained in court records of proceedings or other relevant legal documents, where that information is held by a Scottish public authority solely because it is contained in such a document.

Section38 - Personal information

106. This section deals with personal information (much of which may in any event be available to the individual concerned under the Data Protection Act 1998). Section 38(1) exempts absolutely personal data, of which the applicant is the subject, personal census information and the health records of a deceased person. Section38(1)(b) exempts personal data relating to a third party(i.e. not the applicant), but only if it meets either of the conditions mentioned in section38(2) and(3). This is an absolute exemption in circumstances where the conditions in section38(2) and(3) are met. Where these conditions are not met the public interest test at section2 applies.

93. 93. 93. 93. 93. 93. Section39 - Health, safety and the environment

107. Section39(2) exempts information if that information is required to be made available by virtue of environmental information regulations(EIRs) made under section62. Environmental information is exempt if an authority is obliged to release the information requested in accordance with those regulations or would be so obliged but for an exemption under those regulations. Access to environmental information held by a Scottish public authority will be available first under those regulations, rather than under the Act. However, the Act would still continue to have some significance as regards environmental information, since it places a duty on public authorities to consider the release of that information which is exempt under the EIRs, where it is in the public interest so to do. The public interest test in section2 applies.

Section40 - Audit functions

108. This section exempts information, the disclosure of which would, or would be likely to, prejudice substantially the exercise of a Scottish public authority's auditing functions. The section relates to the audit of the accounts of other public authorities, or examinations into the economy, efficiency and effectiveness with which they use their resources in the discharge of their public functions. The section would not extend to the internal auditing functions of authorities. The public interest test in section2 applies.

93. Section41 - Communications with Her Majesty, etc. and honours

109. This section exempts as a class information relating to communications with Her Majesty, the Royal Family or the Royal Household; or relates to the award of any honour or dignity by Her Majesty. The public interest test in section2 applies.

93. Part 3 - The Scottish Information Commissioner

Section42 - The Scottish Information Commissioner

110. This section provides as to the appointment of the Scottish Information Commissioner and the basis on which that office is held.

111. Under section42(1) the Commissioner will be appointed by Her Majesty on the nomination of the Parliament. The Parliamentary corporation will determine the Commissioner's salary, allowances and other terms and conditions. The Commissioner will hold office for a term not exceeding 5 years and for no longer than 2 terms unless re-appointment for a third is desirable in the public interest. The Commissioner retires at the end of the calendar year in which the age of 65 is reached, and can be removed from office by Her Majesty following a resolution of the Parliament passed by a majority of no less than two thirds of the total number of members of the Parliament.

112. Under section42(7) the Commissioner is not subject to the direction or control of the Parliament, the Parliamentary corporation or any member of the Scottish Executive, except in relation to the preparation of accounts(which, under paragraph5 of schedule2, must be in accordance with any directions provided by the Scottish Ministers) and the appointment of staff(which, under paragraph 3(4) of schedule2, requires the approval of the Parliamentary corporation).

Section43 - General functions of Commissioner

113. This section places a duty on the Commissioner to promote good practice and enforce Scottish public authorities' compliance with the Act, their publication schemes and codes of practice. The Commissioner is also obliged, where he or she considers it expedient, to disseminate information to the public about the Act. The Commissioner is permitted to charge fees for such services. Section43(4) provides that the Commissioner may also make recommendations to the Scottish Ministers regarding bodies which could be included within the scope of the Act under sections4 and 5. This section also places a duty on the Commissioner from time to time to consult with the Keeper of the Records of Scotland about the promotion of observance by authorities of the code of practice as to the keeping, management and destruction of records(issued by the Scottish Ministers under section61).

Section44 - Recommendations as to good practice

114. This section enables the Commissioner to take action where he or she considers that the practices of a Scottish public authority in relation to its functions under the Act do not conform with a code of practice issued under section60 or 61. The Commissioner may issue a "practice recommendation", specifying the provisions with which the Commissioner considers the authority's practice does not conform and the steps the authority should take to so conform. The Commissioner is required to consult with the Keeper of the Records of Scotland before issuing a practice recommendation which relates to a failure to conform with the code of practice(issued under section61) as to the keeping, management and destruction of records.

Section45 - Confidentiality of information obtained by or furnished to Commissioner

115. This section sets out the conditions governing the disclosure of information held by the Commissioner. The Commissioner, or a member of his or her staff, or an agent of the Commissioner will not be able to disclose information furnished to the Commissioner under this Act and which is not available in the public domain, unless that disclosure is made with lawful authority.

116. The Commissioner will be considered to have lawful authority where the circumstances set out at Section45(2) are present, including where disclosure is required under this Act (as a consequence of an FOI request made to the Commissioner). Sections45(3) and 45(4) create a criminal offence of knowingly or recklessly disclosing information without the lawful authority mentioned in section45(2).

Section46 - Laying of reports

117. This section requires the Commissioner to lay annual reports before the Scottish Parliament and enables him or her to lay such other reports as he or she thinks appropriate.

Part 4 - Enforcement

Section47 - Application for decision by Commissioner

118. This section sets out the circumstances in which an applicant can apply to the Scottish Information Commissioner for a decision as to whether a Scottish public authority has dealt with a request for information in accordance with Part1 of the Act. Application to the Commissioner will be available where an applicant is dissatisfied with a notice given under section21(5) or(9) following a review by the authority of its original decision, or where the public authority concerned failed to give such a notice. Section47(2) sets out the form in which an application is to be made to the Commissioner, and the information which must be included in any application. An application must be in writing or in another form capable of being used for subsequent reference. Section47(4) sets out the timescales within which any such application must be made. The Scottish Ministers may, by regulations, extend this timescale. Such regulations will be subject to affirmative resolution.

Section48 - When application excluded

119. Under this section, an applicant will not be able to appeal to the Commissioner for a decision under section47(1) as respects a request for review made to the Scottish Information Commissioner, a procurator fiscal, or the Lord Advocate(to the extent that the information requested is held by the Lord Advocate as head of the systems of criminal prosecution and investigation of deaths in Scotland).

120. Section48 excludes appeal to the Commissioner for a decision under section47(1), but the Commissioner, the Lord Advocate and procurators fiscal are subject to the other duties and obligations set out in this Act.

Section49 - Commissioner's decision

121. This section sets out the Commissioner's obligations in relation to an application made in accordance with section47(1), providing this is not excluded by section48. The Commissioner is not obliged to make a decision if he or she is of the opinion that the request is frivolous or vexatious, or has been withdrawn or abandoned. However, the Commissioner is still obliged to provide notification with reasons.

122. In any other case the Commissioner must invite comments from the authority and reach a decision within four months (or such other period as is reasonable in the circumstances) of receiving the application. The Commissioner may also mediate a settlement between the applicant and the authority.

123. Where the Commissioner finds that an authority has not dealt with a request in accordance with Part1 of this Act, such a decision notice must contain details of the failure, the remedy and the time within which such action must be taken. Such timescales must not expire before the end of the period within which an authority may appeal to the Court of Session under section56.

Section50 - Information notices

124. This section enables the Commissioner to obtain from a Scottish public authority information(including unrecorded information) that he or she requires to deal with an application under section47 or to determine on whether an authority has complied, or is complying, with the provisions of the Act or a code of practice issued under section60 or 61. A written notice under this section is referred to as an "information notice".

125. Sections 50(2) and(3) specify the contents of an information notice, which must include the time within which the information is to be given and details of any right of appeal which may be available to the authority under section56. The time limit specified in the notice must not expire before the time for an authority to appeal under section56 expires. Should an authority decide to exercise the right of appeal under that section, then the notice need not be complied with before that appeal is concluded.

126. Sections 50(5) and(6) set out that an authority is not required to supply the Commissioner with information relating to communications between a legal adviser and client(or a person representing a client) about the client's compliance with the Act or about any proceedings arising from it.

127. Section50(7) provides that the information requested by the Commissioner in an information notice cannot be withheld on the basis of any obligation to maintain secrecy, or of any other restriction on disclosure. This is subject to the limitation relating to the professional legal adviser and client relationship set out at section50(5).

Section51 - Enforcement notices

128. This section enables the Commissioner to issue an "enforcement notice" to a Scottish public authority which the Commissioner is satisfied has failed to comply with a provision of Part 1 of the Act. The notice specifies the steps the authority is to take in order to comply.

129. An enforcement notice must also set out the time by which these steps must be taken and details of any right of appeal which may be available to the authority under section56. The time limit specified in the notice must not expire before the time for an authority to appeal under section56 expires. Should an authority decide to exercise the right of appeal under that section, then the notice need not be complied with before that appeal is concluded.

130. The Commissioner can also cancel an enforcement notice.

Section52 - Exception from duty to comply with certain notices

131. This section sets out the conditions under which the First Minister can, after consulting the other Scottish Ministers, sign and give a certificate to the Commissioner stating that the First Minister has, on reasonable grounds and after such consultation, formed the opinion that there has been no failure to comply with section1(1) and that the information requested is of exceptional sensitivity.

132. Under section52(1) such a certificate can apply only to a decision or enforcement notice given to the Scottish Administration and where the information in question is exempt by virtue of section29, 31(1), 32(1)(b), 34, 36(1) or 41(b).

133. The certificate must be issued within 30working days of the Commissioner's notice being given to the Scottish Administration or, where an appeal is brought on a point of law under section56, of the day on which the cause is finally determined.

Section53 - Failure to comply with notice

134. This section sets out the sanctions for non-compliance with a decision notice, information notice or enforcement notice issued by the Scottish Information Commissioner, providing that the Court of Session may hold a Scottish public authority in contempt of court.

135. Where an authority fails to comply with any notice issued by the Commissioner, the Commissioner will be entitled to refer the matter to the Court of Session.

136. In relation to information notices(which, under section50, allow the Commissioner to obtain information to support consideration of cases appealed to his or her office), an authority will be deemed to have failed to comply with the notice where it knowingly or recklessly makes a false statement.

137. Where the Commissioner refers an authority to the Court of Session, the authority will be entitled to offer a statement of defence, including presenting witnesses.

Section54 - Powers of entry and inspection

138. This section introduces schedule3 which makes provision for the Commissioner's powers of entry and inspection.

Section55 - No civil right of action against Scottish public authority

139. This section ensures that the legislation does not create any right to sue for damages for breach of a statutory duty. It does not affect the Commissioner's powers in section53(1).

Section56 - Appeal against notices under Part 4

140. This section provides that an appeal against the Commissioner's decision, on a point of law, can be made to the Court of Session in the circumstances listed.

Part 5 - Historical records

Section57 - The expression "historical record"

141. This section defines, for the purpose of this Part of the Act, the expression "historical record" as a record which is 30 years old, counting from the calendar year following that in which it was created. Where records are kept in a file, the period of 30 years(and any other period defined in section58) is reckoned from the calendar year following that in which the most recent record was created.

Section58 - Falling away of exemptions with time

142. The effect of this section is to disapply some of the exemptions in Part2 in the case of information contained in a historical record, thereby extending the scope of the right of access in section1 in these cases. Information contained in a file in which the most recent record is 30 years old or more cannot be exempt under the following sections:

• section28 (relations within the United Kingdom)

• section29 (formulation of Scottish Administration policy etc.)

• section30 (prejudice to the effective conduct of public affairs)

• section33(1) (commercial interests)

• section36 (confidentiality)

• section37 (court records, etc.)

• section40 (audit functions) and

• section 41(a) (communications with Her Majesty)

143. The exemption for information relating to honours(section41(b)) is disapplied at the end of 60 years commencing at the beginning of the calendar year following that in which the record containing the information is created. The exemptions for information relating to sections34(2)(b)(investigations into the cause of death), 35(law enforcement) and 38(1)(c) or(d)(certain personal information) fall away after 100 years, on the same basis.

144. All other exemptions continue to apply in perpetuity.

Section59 - Power to vary periods in sections 57 and 58

145. This section allows the Scottish Ministers to vary, by order, the period in section57(1) after which a record becomes a historical record, or the periods in section58(2) - but the period as varied can never exceed the period mentioned in these sections as originally enacted. An order under this section will be subject to affirmative resolution.

Part 6 - Codes of practice

Section60 - Code of practice as to functions under this Act

146. This section requires the Scottish Ministers to issue, and from time to time revise, a code of practice setting out guidance which the Scottish Ministers consider it desirable for Scottish public authorities to follow in the discharge of their duties under this Act.

147. Section 60(2) specifies particular matters which must be included in the code: the advice and assistance that should be given to applicants, the transferring of requests, consultation with third parties, contractual terms, procedures for dealing with complaints and the collection and recording of statistics by authorities.

Section61 - Code of practice as to the keeping, management and destruction of records

148. This section requires the Scottish Ministers to issue a code of practice providing guidance to Scottish public authorities as to the keeping, management and destruction of the authorities' records.

Part 7 - Miscellaneous and supplemental

Section62 - Power to make provision relating to environmental information

149. This section provides that the Scottish Ministers may make regulations to implement the "Aarhus Convention" - a United Nations Economic Commission for Europe(UNECE) Convention, which the UK(and all other European Union Member States) signed at Aarhus in Denmark in 1998.

150. The Convention deals with access to information, public participation in decision-making and access to justice in environmental matters. As the Convention goes further than the existing Environmental Information Regulations(EIRs) in some areas, and these are not sufficient to enable the United Kingdom to meet the requirements of the Convention, new regulations must be made. The Convention is not an EC instrument, and therefore a new power to make regulations is required(the power to make regulations under section2(2) of the European Community Act 1972 cannot be utilised). It should be noted that these regulations will implement only those provisions of the Aarhus Convention which relate to access to environmental information.

151. This section will allow the creation of a revised free-standing access regime for environmental information, replacing the current EIRs(the Environmental Information Regulations 1992(SI 1992/3240), as amended by the Environmental Information(Amendment) Regulations 1998(SI 1998/1447)). The current Regulations - which will be revoked on the coming into force of the revised regime - implement Directive 90/313/EEC on the Freedom of Access to Information in the Environment.

152. Section 62(3) gives the Scottish Ministers power to make regulations to implement those Articles of the Aarhus Convention which relate to the provision of access to environmental information. The regulations may include provisions for the purpose of dealing with matters arising from those Articles, or amendments to them. Section62(4) permits the regulations to include provisions enabling charges to be made in connection with the disclosure of environmental information.

153. Section62(4) also permits certain provisions of the Act to be applied to the regulations, with modifications. The regulations may also make provision for a code of practice to be issued by the Scottish Ministers to apply to any authority, persons or body(as defined in the Convention) subject to the regulations, and for the application of the Scottish Information Commissioner's powers under sections43 and 44, as modified if necessary. The regulations may also apply, with modifications, Part4 of the Act ("Enforcement"), so that the Scottish Information Commissioner will be able to enforce the regulations. The regulations may also make provision for any transitional or consequential provisions that are appropriate. Such regulations will be subject to negative resolution.

Section63 - Disclosure of information to Scottish Public Services Ombudsman or to the UK Information Commissioner

154. This section provides that the Commissioner may, in certain circumstances, disclose information to the Scottish Public Services Ombudsman or the UK Information Commissioner.

Section64 - Power to amend or repeal enactments prohibiting disclosure of information

155. This section provides that the Scottish Ministers may, under certain circumstances, by order repeal or amend an enactment prohibiting the disclosure of information. Any order made under this section will be subject to affirmative resolution.

Section65 - Offence of altering etc. records with intent to prevent disclosure

156. Under section68, the offence to alter, deface, block, erase, destroy or conceal records cannot be committed by the Scottish Parliament, Parliamentary corporation or the Scottish Administration, but can be committed by officials of those authorities.

Section67 - Protection for actions for defamation

157. The purpose of this section is to ensure that a public authority cannot be held liable if it is required to disclose information under this Act for which an action for defamation could be taken against it. This only applies where the information containing the defamatory matter has been supplied to that authority by a third person. It does not apply where that disclosure can be shown to have been made with malicious intent.

Section68 - Scottish Parliament and Scottish Administration

158. This section makes provision that although the Scottish Administration, the Scottish Parliament and the Parliamentary corporation as "authorities" are exempt from prosecution under the Act, individual members of staff acting on their behalf are not.

Section69 - Exercise of rights by children

159. This section allows the provisions in the Act to be used by children.

Section70 - Amendment of Public Records(Scotland) Act 1937

160. This section amends the Public Records(Scotland) Act 1937. Section 70(2) amends section7 of that Act to provide that the Scottish Records Advisory Council - an independent advisory body established under the 1937 Act - may advise the Scottish Ministers on matters relating to the application of the Act to information contained in records held by the Keeper of the Records of Scotland. Section70(3) adds a new duty on the Keeper to arrange that reasonable facilities are available to the public for inspecting and obtaining copies of records which he holds and which fall to be disclosed in accordance with the Act or are exempt under section25(2)(b)(ii). In practice, such facilities and copying services already exist at the National Archives of Scotland. However, inspection of records held by the Keeper did not feature in the 1937 Act and this amendment will now make it a requirement for such facilities to be made available.

Section71 - Amendment of Scottish Public Services Ombudsman Act 2002

161. This section adds the Scottish Information Commissioner to the list of bodies covered by the Scottish Public Sector Ombudsman and introduces schedule4.

Section72 - Orders and regulations

162. A statutory instrument made under each of the following sections is subject to annulment by resolution of the Scottish Parliament(this is known as negative resolution):

• section4(1) (orders relating to the amendment of schedule1, except those which list an authority in the way mentioned in section7(1))

• section13(1) (regulations relating to fees for disclosure in certain circumstances)

• section62(3) (regulations relating to access to environmental information)

163. A statutory instrument made under any of the following sections has to be laid before and approved by resolution of the Scottish Parliament (this is known as affirmative resolution):

• section4(1) (orders which list an authority in the way mentioned in section7(1))

• section5(1) (orders designating further Scottish public authorities)

• section7(2) (orders limiting, or removing any limitation to, the extent to which the Act applies to a Scottish public authority listed in schedule1)

• section7(4)(b) (orders describing information held by a publicly-owned company)

• section9(4) (regulations relating to fees and charges)

• section10(4) (regulations which vary the time in which a request must be handled)

• section12 (regulations relating to excessive cost provisions)

• section20(7) (regulations to vary the time limits within which an applicant may request a requirement for review)

• section21(6) (regulations to vary the time in which the requirement for review must be considered)

• section47(6) (regulations to vary the time in which the Commissioner must reach a decision on an appeal)

• section59(1) (orders to vary the periods after which certain exemptions do not apply)

• section64(1) (orders which amend or repeal prohibitions on disclosure)

Section74 - Giving of notice

164. This section sets out, for the purposes of this Act, how notices are to be given, etc., and the details as to the timings of such processes.

Section75 - Commencement

165. Section75(1) brings into force all the provisions of the Act on such days as the Scottish Ministers may by order appoint, and no later than 31December 2005. The Scottish Ministers may appoint a date after this if the Scottish Ministers accept a recommendation to do so is made to them by the Commissioner. Orders made under section75(1)(b) may also contain transitional provisions, including provisions capable of having effect beyond that date.

166. Section75(3) requires the Scottish Ministers to prepare and lay before the Scottish Parliament annual reports on the implementation of the Act, starting within 12 months from the date of Royal Assent and each year thereafter until all provisions are fully commenced.