Interaction of the Freedom of Information (Scotland) Act with other legislation and regulations

Legislation and regulations which interact with the Freedom of Information (Scotland) Act 2002 include:

Human Rights Act, 1998
The Human Rights Act allows people certain universal rights and these might affect the decision to release information under freedom of information - in particular the right to a private life. You can read a copy of the Human Rights Act, 1988 on the website of the Office of Public Sector Information (OPSI).

Data Protection Act, 1998
The Data Protection Act is designed to ensure the fair and lawful processing of the personal data of living individuals (known as ‘data subjects’). It sets out rules for processing personal information (known as ‘personal data’) and applies to many paper records as well as those held on computer. The significant aspect of data protection is the need for organisations to provide a reasonable degree of confidentiality for information about people, and to respect their privacy. The FOISA requires organisations holding personal data (known as ‘data controllers’) to comply with the rules of good information handling practice, known as the data protection principles. The principles require, amongst other things, that personal data are processed fairly and lawfully, are accurate and relevant and are subject to appropriate security. You can read a copy of the Data Protection Act, 1998 on the OPSI website.

The Data Protection Act is a UK-wide Act administered by the UK Information Commissioner, who is responsible for enforcing the act and for providing advice and assistance to both data controllers and data subjects.

Personal data subject to the Data Protection Act is exempt from the FOISA (see section 38 of the FOISA) but the exact way in which the two pieces of legislation interact is still developing. The UK Information Commissioner has created a regional office in Scotland. The Assistant Information Commissioner for Scotland liaises with the Scottish Information Commissioner over the interaction between the Data Protection Act and the FOISA and also provides data protection advice to data controllers based in Scotland.

The Scottish Government has produced a Freedom of Information (Scotland) Act Open Learning Workbook. Modules 15, 16 and 17 deal with the Data Protection Act and its interaction with the FOISA.

Environmental Information (Scotland) Regulations, 2004
The Environmental Information Regulations originally came into force in 1992 (Statutory Instrument No 3240 of 1992) and were amended in 1998 (Statutory Instrument No 1447 of 1998) after the UK signed the UNECE Convention on Access to Information, Public Participation and Access to Justice in environmental matters at Aarhus in Denmark (the 1998 Aarhus Convention). The new Environmental Information (Scotland) Regulations 2004 (Scottish Statutory Instrument No 520 of 2004) enable Scotland to comply with the Convention and with the new Aarhus-based EU Directive 2003/4/ EC of 28th January 2003 on public access to environmental information. The definition of what constitutes ‘environmental information’ is now much wider than it was under the 1992 regulations.

The Environmental Information (Scotland) Regulations 2004 (EISRs) are designed to tie in as closely as possible with the provisions of the FOISA:

• both have 20 working day turnaround times for responding to requests;
• both require the application of a public interest test;
• both provide for appeals to the Scottish Information Commissioner.

However, the EISRs also differ from the FOISA in some significant ways:

• environmental information requests do not have to be given in writing;
• there are no lower or upper thresholds for charging fees for providing information;
• the list of exceptions from the duty to make environmental information available is different to the exemptions under the FOISA, although there is some overlap;
• there is to be a separate code of practice on the discharge of the functions of Scottish public authorities under the Scottish Environmental Information Regulations. It is currently in draft form and is available on the Scottish Government website.

The Scottish Government has produced a Freedom of Information (Scotland) Act Open Learning Workbook. Module 11 deals with access to environmental information. You can read the EISRs on the OPSI website.

Disability Discrimination Act, 1995
Provision of information must take into account the Disability Discrimination Act (DDA). The DDA states that public service providers must take reasonable steps to allow access to services to people with a physical or mental impairment. This might include providing large print or braille versions of written communications, or more detailed explanations for those with particular learning disabilities. You can read the DDA on the OPSI website. The Disability Rights Commission has issued a code of practice which sets out the legal duties placed by part 3 of the DDA on those providing goods, facilities or services to the public and those letting or managing premises.

Rehabilitation of Offenders Act, 1974
The Rehabilitation of Offenders Act ensures that people with a criminal record are not treated prejudicially. After a number of years many convictions are regarded as spent and the people involved do not have to reveal them on, for example, job application forms. Guidance from the UK Information Commissioner suggests that it may be unreasonable to conceal information that was originally read out in open court or made available publicly at the time of the offence. However, the guidance makes it clear that there should be an awareness of the possible effects of releasing sensitive information on the offender and their family and, in certain cases, on the victim and their family. It would seem that cases such as this should be judged individually and with an awareness of the Data Protection Act. Court records are exempt from the FOISA but information about convictions can be found in other records that do come under the Act.

Other acts with information provisions
Other acts with information provisions which will interact in some way with the Freedom of Information (Scotland) Act 2002 include:

• Race Relations Act 1976
• Race Relations (Amendment) Act 2000
• Race Relations Act 1976 (Statutory Duties) (Scotland) Order 2002
• Local Government (Access to Information) Act 1985
• Access to Medical Reports Act 1988
• Access to Health Records Act 1990
• Education (Disability Strategies and Pupils’ Educational Records) (Scotland) Act 2002
• Public Finance and Accountability (Scotland) Act 2000
• Ethical Standards in Public Life etc (Scotland) Act 2000
  

[Back to contents]

[Previous section]