Scottish Information Commissioner

The Scottish Information Commissioner will:

• promote and enforce good practice with a view to ensuring that public authorities comply with the FOISA and follow the codes of practice (sections 43-44);
• approve authorities’ publication schemes and is able to offer advice and support in their drawing up (section 23).
• disseminate information to the public about the operation of the FOISA, good practice and other matters to do with FOISA (section 43(2)(a));
• give advice to the public (section 43(2)(b));
• assess whether a Scottish public authority is following good practice (section 43(3)); and
• report annually to the Scottish Parliament on the exercise of his functions (section 46(1)).

• as a result of receiving an application for a decision from a member of the public who is dissatisfied with an authority’s response to a requirement for review, or the failure of an authority to respond to a requirement for review; or
  
• because he has some other reason to be concerned that the authority is not complying with the FOISA in some way, or is not meeting the provisions of the codes of practice.
  

(Sections 47(1) and 50(1)(b))

Where he has been asked for a decision by a dissatisfied applicant, the SIC:

• may try to resolve the complaint between the applicant and the authority or may decide to undertake a formal investigation of the complaint;
• may decide that he requires more information about the complaint. In such cases he can serve a notice called an information notice
• in cases where he undertakes a formal investigation, must make a decision on the case and notify both sides. This is a decision notice. He generally has four months from the time he received the complaint to do this. Where the SIC decides that an authority has failed to comply with the FOISA, the decision notice must specify how the authority has failed to comply, the steps which must be taken to achieve compliance and the time within which those steps must be taken. Particulars of the right of appeal against the decision must also be given.

(Sections 49 and 50)

In any circumstances where he has cause to be concerned that an authority is not complying with the FOISA, or is not meeting the provisions of the codes of practice, the SIC may:

• decide that he requires more information to determine whether the authority is complying with the FOISA or the codes of practice. In such cases he can serve a notice called an information notice;
• issue a practice recommendation if it appears to him that the practice of an authority does not conform with the codes of practice issued under section 60 and 61 of the Act.
• where he is satisfied that the authority has not complied with Part 1 of the Act, serve an enforcement notice

Information notice
An information notice must be in writing and must include particulars of the authority’s right of appeal. Once an authority receives an information notice it must respond within the period set out in the notice. The SIC is obliged to keep information which is disclosed to confidential – for example, if the information disclosed satisfied the SIC that an authority was correct to apply an exemption but also indicated the content of the exempt information, the SIC would not be obliged to make that information known to the applicant when informing him/her of his decision to uphold the authority’s handling of the request. (Sections 45 and 50)

Practice recommendation
A practice recommendation must be in writing and must specify the provisions of the code which have not been met and the steps which should, in the SIC’s opinion, be taken to achieve conformity with the code. The SIC must consult the Keeper of the Records of Scotland before issuing a practice recommendation relating to the section 61 Code of Practice on Records management. (Section 44)

Enforcement notice
The SIC has a general power to serve an enforcement notice in any case where he is satisfied that the authority has not complied with part 1 of the FOISA. The notice must set out:

• the provision of the FOISA with which the authority has failed to comply, and in what way it has failed;
• what steps it must take to put things right;
• the authority's right to appeal to the Court of Session.

(Section 51)

Appeals to the Court of Session
An appeal may be made to the Court of Session, on a point of law, against: a decision by the SIC that an application for a decision is frivolous or vexatious, or that it appears to have been abandoned or withdrawn (appeal may be made only by the applicant);

• a decision by the SIC set out in a decision notice (appeal may be made by the applicant or the authority concerned);
• the decision leading to an information notice or an enforcement notice (appeal may be made only by the authority concerned).

(Section 56)

Powers of entry and inspection
If a sheriff is satisfied by evidence from the SIC that there are reasonable grounds for suspecting that an authority is:

• failing to comply with the FOISA;
• failing to comply with a notice given to it by the SIC; or
• committing an offence involving the altering or destruction of records; and is satisfied that evidence of such failure or offence may be found on premises specified as part of the SIC’s evidence,

• enter and search premises;
• inspect and seize documents or other material which might constitute evidence;
• inspect, examine, operate and test any equipment in which information may be recorded.
  (Schedule 3)

Ministerial certificates
Under section 52 of the FOISA, where the SIC has given a decision notice or an enforcement notice to the Scottish Administration relating to a perceived failure to comply with a request for information which is exempt information on one of the grounds related to:

• formulation and development of government of policy (section 29(1)(a));
• ministerial communications (section 29(1)(b));
• provision of advice by any of the law officers or any requests for the provision of such advice (section 29(1)(c));
• the operation of any ministerial private office (section 29(1)(d))
;
• national security (section 31(1));
• confidential information from another state or international organisation or court (section 32(1)(b));
• criminal & other investigations (section 34);
• confidentiality (section 36(1); or
• Royal honours (section 41(b))
  

the First Minister can give the SIC a certificate overriding the notice where he considers that:

• there has been no such failure; and
• the information requested is of exceptional sensitivity.

The First Minister has to consult the other members of the Scottish Government before taking this action and the certificate must be issued within 30 working days of the SIC giving the notice. Within 10 working days after issuing the certificate the First Minister must also lay a copy of the certificate before the Scottish Parliament and, where it relates to a decision notice, inform the applicant.
(Section 52)

Penalties
If an authority makes a statement which is false in response to an information notice and it either knows it to be false or is reckless as to its truth, the SIC can refer the authority to the Court of Session which may deal with the authority as if it had committed a contempt of court. (Section 53)

If an authority fails to comply with the steps set out in a decision notice, an information notice or an enforcement notice, the SIC can refer the authority to the Court of Session which may deal with the authority as if it had committed a contempt of court. (Section 53)

If an authority has received a request for information which it would be obliged to disclose either in whole or in part, and then alters, defaces, blocks, erases, destroys or conceals a record with the intention of preventing its disclosure, it is guilty of an offence and can be prosecuted. This applies to the authority itself and also to any person who is employed by, an officer of, or under the direction of, that authority. If found guilty, the authority or individual will be liable to a fine of up to £5000. The Scottish Parliament or the Parliamentary Corporation or the Scottish Administration cannot be prosecuted for this offence, although individual members of their staff can be.
(Sections 65 and 68)

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