SCOTTISH EXECUTIVE FREEDOM OF INFORMATION (SCOTLAND) ACT 2002:OPEN LEARNING WORKBOOK
MODULE 7
RIGHTS OF ACCESS - HOW IS A REQUEST MADE?
7.1 CONTENT AND LEARNING OBJECTIVES
This module discusses the right of access to information in Scotland under the Freedom of Information (Scotland) Act 2002. It deals with how to make a request for information; Modules 8 and 9 build on this module by discussing how to handle and respond to requests. Once you have worked your way through this module you should understand:
- Who can make a request
- Which authorities a request can be made to
- What information can be requested and in what format
- What should be included in a valid request
- Some general information about what fees may be charged
- What other access rights exist
SUGGESTED TIME ALLOCATION: 1 hour
7.2 LEARNING MATERIALS
7.2.1 Who can make a request?
Any person who requests information from a Scottish public authority which holds it has a right to be given the information by the authority. A person making a request is called an applicant. There are a wide range of Scottish public authorities, many are listed in the Act itself, others may be designated by order by the Scottish Ministers (for example companies providing a public service under a contract made under the Private Finance Initiative) or are publicly owned companies. Module 3 has more information on Scottish public authorities.
An applicant does not have to be an individual; a company can make a request, as can other types of organisations such as charities, pressure groups, political parties and other public authorities. Applicants do not have to be based in Scotland; anyone, anywhere can make a request.
7.2.2 Access Rights for children
There is no reason why a child cannot exercise the right of access; what the Act says is that where there is an issue as to whether a child has the legal capacity to exercise a right, they should be presumed to have capacity where they have a general understanding of what it means to exercise the right. The Act also says that a person who has attained the age of twelve years is presumed to have sufficient age and maturity to have this understanding although children under twelve could still be considered to have such understanding. Issues of legal capacity may arise, for example, where an authority has to correspond regarding fees but in most cases, if a request is received from a child, it should be appropriate to respond to that child.
7.2.3 What can be requested?
The applicant can request any information held by an authority in a recorded form. This might include computer documents, handwritten notes, plans, videos and tape recordings and photographs. It does not matter how old this information is as long as it is recorded. The information does not have to have been created by the authority and so could have been provided to the authority by someone else. Information does not have to be about the authority and so may relate to third parties. Information is also covered where it is held by someone else on behalf of an authority.
When making a request an applicant must comply with certain formalities for a request to be valid.
- The request must be in writing or in some permanent form that can be referred to subsequently.
- This may be a letter, an e-mail, a handwritten note or a recording made on audio or video tape but a simple telephone call would not be sufficient (although a recorded telephone call may be).
- The request must state the name of the applicant and an address for correspondence.
- The request must describe the information requested.
An applicant can express a preference for receiving information in one or more of the following ways:
- a copy in permanent form or another form acceptable to the applicant; this could be a photocopy or printout, a disk or video etc;
- a digest or summary of the information;
- a reasonable opportunity to inspect the records containing the information.
7.2.4 Fees
An authority is not required to charge for information but is allowed to do so under the Act. If the authority decides to charge a fee, it must write to the applicant with a fees notice setting out the fee that applies. Authorities cannot set their own fees; they must comply with Fees Regulations. As at January 2004, the fees regulations are not expected to be finalised until Summer 2004 at the earliest.
Although there are formalities, it is important to note that authorities must provide advice and assistance to applicants and those wishing to make requests. This is discussed further in the next two modules.
7.2.5 Other Rights
Other rights or possibilities of accessing information will continue to exist. For example, people will be able to find information from publication schemes; they will have rights of access to their own personal information under the Data Protection Act 1998 and they may have other statutory rights to information such as under environmental access regulations. Environmental access rights are discussed in Module 11.
7.3 THE STRATEGIC VIEW
Authorities should consider who has responsibility for dealing with requests for information and assisting applicants in making a request.
They should consider the need to make general information available to the public and the need for all staff to understand how to recognise a request and what to do if they receive one - whether dealing with this themselves or referring it on. |
7.4 SUMMARY
The Act introduces a general right of access. Any person who makes a request to an authority for information will be entitled to receive it, provided no exemptions apply. The request can be made by an individual or an organisation. The request does not have to be made by someone in Scotland. Anyone, anywhere can make a request for information. Authorities are only obliged to provide recorded information, such as computer documents, handwritten notes and videos. It does not matter how old the information is. Requests must be in writing or in another permanent form. Requests must state the name and address of the applicant and describe what information is required. There is no need to cite the Act or explain why the information is being sought. Authorities may charge a fee in accordance with fees regulations.
7.5 KEYWORDS
Fees Notice | A Scottish public authority must serve a fees notice in writing if it wishes to charge an applicant for requested information. The notice must set out the charges. (Section 9 FOISA). |
Fees Regulations | Fees regulations will set out what Scottish public authorities can charge an applicant for the provision of information. As at January 2004 these are not yet available and are not expected to be finalised until Summer 2004 at the earliest. (Section 9 FOISA). |
7.6 REFERENCES
Section 1 FOISA General Rights
Section 3 FOISA Scottish Public Authorities
Section 8 FOISA Requesting Information
Section 9 FOISA Fees
Section 11 FOISA Means of providing information
Section 69 FOISA Exercise of rights by children
7.7 RESOURCES
SIC FAQs:
www.itspublickknowledge.info/faqs.htm
7.8 SELF ASSESSMENT CHECKLIST
1. The following are entitled to make a request to an authority for information under the FOISA:
- a lecturer at the London School of Economics;
- Mrs Brown of 61 The Mews, Edinburgh;
- Greenpeace USA, Washington DC; and
- ICI Paints, Slough.
TRUE or FALSE?
2. An applicant sends an e-mail request for information but fails to provide an address for correspondence; the authority is still required to respond. TRUE or FALSE?
3. An authority receives a request from The Tooth Fairy who provides a valid address in London for the purposes of correspondence. The authority is obliged to respond to the request if it is able. TRUE or FALSE?
4. Authorities are not required to charge for providing information, but if they do so they must get approval from the Scottish Information Commissioner for the level of fees that they have set. TRUE or FALSE?
Click here for answers
7.9 WHAT THEY SAID
Knowledge is power. The right to knowledge about the activities of those with public power is important. That is one of the key checks and balances on the exercise of public power under our constitutional arrangements in Scotland" (Robert Brown - MSP)
"The right of access is open to all. It can be exercised by anybody worldwide, and the [Act] is specifically designed so that it will be exercised" (Jim Wallace - MSP)
"Applicants do not need to cite legislation or specific sections of it, nor need they say why they are requesting the information. The [Act] establishes a right to know that is not reliant on establishing a need to know." (Jim Wallace - MSP)
"There is no use in having a Freedom of Information Act if ordinary members of the public do not know how to access it or use it" (Maureen McMillan - MSP)
7.10 CASE STUDY
The case for broadband
"Outside centres of population, accessibility to broadband in rural areas is still running at only 1 - 7 per cent. This is at a time when businesses are increasingly including broadband access in their location decisions" Country Landowner & Rural Business, June 2003 "The countryside is in danger of missing out on the next generation of broadband internet services. ISDN is not available more than 3km from an exchange, which means most of rural Britain. DSL is not available in rural areas, and the high prices paid by telecom companies for third-generation mobile phone licences may mean that they can't afford to build a large infrastructure to serve rural Britain, but only the most profitable urban areas." Countryside Alliance "We have started a campaign … to get Broadband Internet access enabled in the East Neuk of Fife. The way the campaign works is to get people who may be interested in getting Broadband, to register their interest (This does not commit you to taking Broadband) and once the registered number of people on the telephone exchange reaches the required trigger level, [Broadband will be enabled]." East Neuk Wide Broadband Campaign "… we are not satisfied that enough of Scotland's people are gaining access to broadband quickly enough. The population coverage of the technology in Scotland is less than the percentage figure for the UK as a whole and we mean to address this…" Iain Gray, MSP, Connecting Scotland, our broadband future Making it Happen |
Robbie Largo is a farmer in the East Neuk of Fife and, in order to increase revenue, he is considering converting an outbuilding into units to rent out to small businesses or start-ups. He also has a couple of spare bedrooms that he is considering advertising in nearby St. Andrews in the hope that research students may be attracted by a quieter working and living environment away from the bright lights of the town.
Robbie's business plan to borrow money for the units is rejected as there is no broadband availability, the reasoning being that the bank's policy on start-up loans is not to lend money unless there is a firm commitment to invest in high spec IT facilities. "After all", reasons the bank manager, "we'd be shooting ourselves in the foot if we gave you the money and then turned away all your potential tenants".
Undeterred, Robbie decides to get the rooms let out in the meantime but the students always seem to lose interest when they realise that their internet access is going to be by ordinary telephone line (although Robbie suspects that their concerns are not always academic).
Robbie asks his ISP provider AT & C when the problem might be resolved but doesn't really get much help from the customer "helpline" although they do refer him to the East Neuk Wide Broadband Campaign which he signs up to. Unfortunately the review point for the Elie exchange is when 200 people have registered an interest and so far only 61 seem to have done so. Slightly more perturbed now, he decides to see what the Scottish Executive has to say on the matter. "Well", he thinks, "farmers should be encouraged to diversify" and he's read that other countries are investing heavily in IT infrastructure, why should Scotland be any different?
Task
Using the material in this module, imagine that you are Robbie and make a request to the Scottish Executive requesting information relating to its broadband strategy. You can make this as wide or as narrow as you wish.
