Freedom of Information (Scotland) Act 2002

JurisdictionScotland
Citation2002 asp 13


Freedom of Information (Scotland) Act 2002

asp 13

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 24th April 2002 and received Royal Assent on28th May 2002.

An Act of the Scottish Parliament to make provision for the disclosure of information held by Scottish public authorities or by persons providing services for them; and for connected purposes.

1 Access to information held by Scottish public authorities

Part 1

Access to information held by Scottish public authorities

Right to information

Right to information

S-1 General entitlement

1 General entitlement

(1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.

(2) The person who makes such a request is in this Part and in Parts 2 and 7 referred to as the ‘applicant’.

(3) If the authority—

(a) requires further information in order to identify and locate the requested information; and

(b) has told the applicant so (specifying what the requirement for further information is),

then, provided that the requirement is reasonable, the authority is not obliged to give the requested information until it has the further information.

(4) The information to be given by the authority is that held by it at the time the request is received, except that, subject to subsection (5), any amendment or deletion which would have been made, regardless of the receipt of the request, between that time and the time it gives the information may be made before the information is given.

(5) The requested information is not, by virtue of subsection (4), to be destroyed before it can be given (unless the circumstances are such that it is not reasonably practicable to prevent such destruction from occurring).

(6) This section is subject to sections 2, 9, 12 and 14.

S-2 Effect of exemptions

2 Effect of exemptions

(1) To information which is exempt information by virtue of any provision of Part 2, section 1 applies only to the extent that—

(a) the provision does not confer absolute exemption; and

(b) in all the circumstances of the case, the public interest in disclosing the information is not outweighed by that in maintaining the exemption.

(2) For the purposes of paragraph (a) of subsection (1), the following provisions of Part 2 (and no others) are to be regarded as conferring absolute exemption—

(a) section 25;

(b) section 26;

(c) section 36(2);

(d) section 37; and

(e) in subsection (1) of section 38—

(i) paragraphs (a), (c) and (d); and

(ii) paragraph (b) where the first condition referred to in that paragraph is satisfied by virtue of subsection (2)(a)(i) or (b) of that section.

S-3 Scottish public authorities

3 Scottish public authorities

(1) In this Act, ‘Scottish public authority’ means—

(a) any body which, any other person who, or the holder of any office which—

(i) is listed in schedule 1; or

(ii) is designated by order under section 5(1); or

(b) a publicly-owned company, as defined by section 6.

(2) For the purposes of this Act but subject to subsection (4), information is held by an authority if it is held—

(a) by the authority otherwise than—

(i) on behalf of another person; or

(ii) in confidence, having been supplied by a Minister of the Crown or by a department of the Government of the United Kingdom; or

(b) by a person other than the authority, on behalf of the authority.

(3) Subsection (1)(a)(i) is subject to any qualification set out in schedule 1.

(4) Information is not held by the Keeper of the Records of Scotland if it is contained in a record transferred to the Keeper by a public authority within the meaning of the Freedom of Information Act 2000 (c.36) unless it is information—

(a) to which subsections (2) to (5) of section 22 apply by virtue of subsection (6) of that section; or

(b) designated by that authority as open information for the purposes of this subsection.

(5) Where the public authority mentioned in subsection (4) is the Secretary of State for Scotland and the information is contained in a record transferred as is mentioned in subsection (6) of section 22 the reference in subsection (4)(b) to ‘that authority’ is to be construed as a reference to the Scottish Ministers.

S-4 Amendment of schedule 1

4 Amendment of schedule 1

(1) The Scottish Ministers may by order amend schedule 1 by—

(a) adding to that schedule a reference to—

(i) any body which; or

(ii) the holder of any office which,

is not for the time being listed there and is either a part of the Scottish Administration or a Scottish public authority with mixed functions or no reserved functions; or

(b) removing from that schedule an entry for the time being listed there.

(2) The reference in paragraph (a) of subsection (1) to an authority with mixed functions or no reserved functions is to be construed in accordance with paragraphs 1(4) and 2 of Part III of Schedule 5 to the Scotland Act 1998 (c.46).

(3) An order under subsection (1) may relate to a specified person or office or to persons or offices falling within a specified description.

S-5 Further power to designate Scottish public authorities

5 Further power to designate Scottish public authorities

(1) The Scottish Ministers may by order designate as a Scottish public authority for the purposes of this Act any person mentioned in subsection (2) who—

(a) is neither for the time being listed in schedule 1 nor capable of being added to that schedule by order under section 4(1); and

(b) is neither a public body nor the holder of any public office.

(2) The persons are those who either—

(a) appear to the Scottish Ministers to exercise functions of a public nature; or

(b) are providing, under a contract made with a Scottish public authority, any service whose provision is a function of that authority.

(3) An order under subsection (1) may designate a specified person or persons falling within a specified description.

(4) An order under subsection (1) made by virtue of—

(a) subsection (2)(a) must specify the functions of a public nature which appear to be exercised;

(b) subsection (2)(b) must specify the service being provided.

(5) Before making an order under subsection (1), the Scottish Ministers must consult—

(a) every person to whom the order relates; or

(b) persons appearing to them to represent such persons.

S-6 Publicly-owned companies

6 Publicly-owned companies

(1) A company is a ‘publicly-owned company’ for the purposes of section 3(1)(b) if it is wholly owned—

(a) by the Scottish Ministers; or

(b) by any other Scottish public authority listed in schedule 1, other than an authority so listed only in relation to information of a specified description.

(2) For the purposes of subsection (1), a company is wholly owned—

(a) by the Scottish Ministers if it has no members except—

(i) the Scottish Ministers or companies wholly owned by the Scottish Ministers; or

(ii) persons acting on behalf of the Scottish Ministers or of such companies; and

(b) by any other Scottish public authority if it has no members except—

(i) the authority or companies wholly owned by the authority; or

(ii) persons acting on behalf of the authority or of such companies.

(3) In subsections (1) and (2), ‘company’ includes any body corporate.

S-7 Public authorities to which Act has limited application

7 Public authorities to which Act has limited application

(1) An order under section 4(1)(a) may, in adding an entry to schedule 1, list the authority only in relation to information of a specified description; and where an authority is so listed nothing in this Act applies to any other information held by the authority.

(2) The Scottish Ministers may by order amend that schedule—

(a) by limiting the entry relating to an authority to information of a specified description; or

(b) by removing or amending any such limitation for the time being contained in an entry so relating.

(3) Nothing in this Act applies to information held by a person designated as a Scottish public authority by order under subsection (1) of section 5 if the order is made by virtue of—

(a) subsection (2)(a) of that section and the information does not relate to the functions; or

(b) subsection (2)(b) of that section and the information does not relate to the service,

specified in the order.

(4) Nothing in this Act applies in relation to information—

(a) held by a publicly-owned company; and

(b) of a...

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