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FOI law

FOI law in Scotland

The Scottish Information Commissioner is responsible for enforcing and promoting freedom of information (FOI) law in Scotland, which includes:

  • Environmental Information (Scotland) Regulations 2004 (the EIRs)
    The EIRs come from a European Directive on access to environmental information. The EIRs give everyone the right to ask for environmental information held by a Scottish public authority (and some other bodies).
  • INSPIRE (Scotland) Regulations 2009 (INSPIRE)
    These regulations also come from a European Directive, and require Scottish public authorities to make spatial datasets (e.g. map data) available.

The Freedom of Information (Scotland) Act 2002

The Freedom of Information (Scotland) Act 2002 (FOISA) came into force on 1 January 2005. Under FOISA, a person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority subject to certain conditions and exemptions set out in the Act.

The FOI Act is enforced and promoted by the Scottish Information Commissioner. We have published a short guide to your rights under FOI, entitled Your Right To Know - A Guide to FOI in Scotland and you can find out more about your rights in the Your Rights section of the website. We also maintain a series of more detailed briefings on exemptions and key concepts which can be found at the briefings and guidance pages of the website.

Below is a list of all legislation relating to Freedom of Information in Scotland, with links to the full text on the legislation.gov.uk website. The list includes the original Act, regulations, amendments, and orders designating new authorities.

Fees and timescales regulations
Designation orders
Other amendment acts and orders
Codes of practice

Although not formal legislation, there are two codes of practice that Scottish Ministers are required to produce and maintain under FOISA and which all authorities are advised to follow:

Environmental Information (Scotland) Regulations 2004

The Environmental Information (Scotland) Regulations 2004 (EIRs) sit alongside the FOI Act, and govern access to environmental information held by Scottish public authorities. The EIRs require every Scottish public authority to publish environmental information, and make it available on request.

The EIRs are separate from the FOI Act. The rights provided by the EIRs are similar to those under the FOI Act, but there are also important differences.

The full text of the EIRs, including amendments to date, is available on The National Archives' legislation.gov.uk website: Environmental Information (Scotland) Regulations 2004

Introduction to the EIRs

The EIRs are based on European Directive 2003/4/EC (the Directive). They give the public rights of access to environmental information held by Scottish public authorities. The EIRs came into force on 1 January 2005 along with the FOI Act, and cover any information that is considered to be 'environmental information' as defined by the EIRs.

The EIRs build on previous access to information regimes such as the Environmental Information Regulations 1992, which were amended in 1998. These regulations gave the public the right to ask for information which 'relates to the environment' and which was held by a 'relevant person', such as central and local government and other bodies with responsibilities in relation to the environment.

In 1998, the UK signed the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters ('the Aarhus Convention'), from which the Directive was derived. The EIRs implement this Directive in Scotland. The rest of the UK has its own environmental information regulations in the form of the Environmental Information Regulations 2004. These separate regulations are regulated by the UK Information Commissioner.

For more background on the EIRs, download the Commissioner's briefing here: Introduction to the EIRs.

What is environmental information?

The definition of 'environmental information' under the EIRs covers a broad range of topics. This includes:

  • The environment itself, including air, water, earth, and the habitats of animals and plants
  • Other things that affect the environment, such as emissions, radiation, noise and other forms of pollution
  • Policies, plans and laws on the environment

Examples of environmental information covered by the EIRs include:

  • Levels of chlorine in swimming pools
  • Water and air-quality test reports
  • Genetically modified crops
  • Air conditioning systems in public buildings

For more information, download our EIRs Guidance on the definition of environmental information here: What is Environmental Information?

Which bodies are covered by the EIRs?

The EIRs define a "Scottish public authority" more broadly than the FOI Act. As well as covering all authorities subject to the FOI Act, the EIRs also apply to other bodies, including:

  • Any other Scottish public authority with mixed functions or no reserved functions (as defined by the Scotland Act 1998)
  • Any other person who is neither a public body nor the holder of a public office and who is under the control of a person or body which is either covered by the FOI Act or which is a Scottish public authority with mixed or no reserved functions and:
    • (i) has public responsibilities relating to the environment
    • (ii) exercises functions of a public nature relating to the environment
    • (iii) provides public services relating to the environment

For more information, download the Commissioner's guidance on the bodies covered by the EIRs here: Which bodies are covered by the EIRs?

What do the EIRs require public authorities to do?

The EIRs require Scottish public authorities to:

  • Actively disseminate information, particularly by electronic means (regulation 4(1))
  • Make environmental information available to any person who requests it within 20 working days or, in exceptional cases where the request is both voluminous and complex, within 40 working days (regulation 5(1) and regulation 7(1))
  • Publish a schedule of charges and information on the circumstances in which a fee may be charged, waived or required to be paid in advance (regulation 8(8))
  • Provide advice and assistance to someone who has made, or wishes to make, a request for environmental information (regulation 9)
  • Refuse environmental information only in accordance with the limited exceptions available, giving reasons and details of the mechanisms for review and appeal (regulations 10, 11, 13, 16 and 17)
  • Transfer requests for environmental information if they do not hold the information but believe another authority does (regulation 14)
  • Where requested, carry out a review of a decision not to make environmental information available (regulation 16)

For more information, download our briefing on the obligations under the EIRs.

Handling requests for environmental information

Both FOISA and the EIRs give the public access to information. But there are important differences in the way in which requests should be handled under the separate regimes. For example:

  • The format of information requests: under the FOI Act, requests for information must be in written or other recordable format; under the EIRs, a verbal request for information may be valid
  • There are different rules when considering withholding information
  • The EIRs make provision for the transfer of a request from one authority to another; the FOI Act doesn't (the requester has to make a new request to the other body).

So when you receive requests for environmental information it's important to respond appropriately under the EIRs

For more information, download our two sets of guidance provided by the Commissioner on handling requests under the EIRs here:

The EIRs exceptions

As with the FOI Act, where exemptions may be applied in certain circumstances, there are instances when environmental information requests may be refused under the EIRs, if an exception applies.

The EIRs permit Scottish public authorities to refuse a request if an exception under regulation 10(4) or 10(5) applies and the public interest in making the information available is outweighed by that in maintaining the exception. Regulation 11 also permits a public authority to withhold personal data in certain circumstances.

Unlike FOI Act exemptions, the public interest test must be applied to ALL exceptions under the EIRs. Bodies must interpret all of the exceptions in a restrictive way and must apply a presumption in favour of disclosure (regulation 10(2)).

Information relating to emissions is given a special status under the EIRs. Some of the exceptions under the EIRs cannot be applied when the information in question relates to emissions.

Note that regulation 5(3) provides that any enactment or rule of law which would prevent information from being made available in accordance with the EIRs shall not apply. This regulation is in direct contrast with section 26(a) of the FOI Act, which prohibits disclosure of information by a Scottish public authority (otherwise than under FOI) if this is prohibited by other legislation.

For more information on when public authorities can and cannot withhold information under the EIRs, download our guide on the EIRs exceptions

Differences between EIRs and FOISA

The Commissioner recognises that Scottish public authorities will receive requests under both the FOI Act and the EIRs. However, all requests will technically fall within the remit of the FOI Act.

Section 39(2)(a) of the FOI Act allows an authority to exempt information which the authority is obliged, under the EIRs, to make available to the public. This allows the authority to respond under the FOI Act, and go on to consider the request under the EIRs alone. Authorities who do not claim this exemption for a request for environmental information, will need to consider that request fully under both the FOI Act and the EIRs (e.g. considering how both the FOI exemptions and the equivalent EIR exceptions might apply).

Although the intention of both pieces of legislation is to allow the public access to information there are some differences between the two, for example:

  • Requests for information can be made orally under EIRs
  • The 20 day time period for responding to requests can be extended to 40 days where the request is complex and voluminous and would involve a considerable amount of work
  • Provision for charging of fees is different: there is no upper or lower threshold and authorities can recover, in full, the cost of supplying the information
  • EIRs have exceptions rather than exemptions and all of these are subject to the public interest test
  • Information relating to emissions has special status and will have to be supplied in most cases

For more information, download our guide for public authorities which receive requests falling under both the EIRs and the FOI Act and the appropriate use of section 39(2) here: Differences between EIRs and the FOI Act. 

INSPIRE (Scotland) Regulations 2009

The INSPIRE (Scotland) Regulations 2009 came into force on 31 December 2009. The regulations implemented European Directive 2007/2/EC in Scotland (similar regulations implemented the Directive in the rest of the UK). The regulations were amended in 2019 and remain in force despite the UK's exit from the European Union.

The purpose of the regulations is to create an electronic network of spatial information which is accessible to the public. "Spatial information" is information which has a geographical reference, for example postcodes and map data. The regulations set out, amongst other things:

  • Definition of "spatial information" and "spatial datasets"
  • Definition of Scottish public authorities and third parties covered by the regulations
  • The obligations of bodies covered e.g. creation of metadata, establishment and operation of discovery services, links to other datasets as part of a network
  • Details of how the regulations will be enforced 

The full text of the regulations, including amendments to date, is available on The National Archives' legislation.gov.uk website: INSPIRE (Scotland) Regulations 2009.

There's more information and guidance about the INSPIRE Regulations in the Scottish Government's Open Data resource pack.

The role of the ICO

If you want to access information from UK-wide public authorities which operate in Scotland, such as the BBC or the Ministry of Defence, you should contact the UK Information Commissioner's Office (ICO).

The ICO is also responsible for data protection law across the whole of the UK, including how to access your own personal information.