Publication scheme FAQs

You do not have to adopt the MPS. You are entitled to produce your own bespoke scheme. But the Commissioner does not recommend it. Experience and feedback shows that bespoke schemes are not efficient and can be burdensome for both the authority and the Commissioner. They also lead to delays in approval.

• 100% of Scottish public authorities have adopted the MPS
• 97% of authorities surveyed would recommend the MPS to others

Not only is adoption of the MPS easier and more efficient for an authority, it helps requesters too. It gives greater consistency for the public about how the Scottish public sector publishes information and therefore makes it easier for them to find information.

If you want to explore a bespoke scheme, contact us as soon as possible. We will ask you to specify the issues you have with the MPS and we will first attempt to resolve those issues before we will consider approving a bespoke scheme. If we are asked to approve a bespoke scheme, we will test it against the standard of the MPS.

Section 24 of FOISA allows for the development of model schemes that can be adopted by more than one authority. The Commissioner used this provision when developing the MPS.

We do not encourage the development of more model schemes because the MPS provides a consistent framework for the public. If you feel that the MPS is not suitable for your authority, please tell us about the problems you are having so that we can look for a solution.

Several groups of authorities have worked together to produce template Guides to Information. This approach has helped authorities in those sectors identify other information they ought to publish, over and above the MPS.

Yes, provided that the request is in a valid format (see section 8 of FOISA). All requests which result in a refusal to release the information requested should be accompanied by a refusal notice, setting out which exemption applies and why. In this case, the exemption cited would be section 25 "Information Otherwise Accessible".

Remember, however, that authorities can choose not to apply particular exemptions, and also have a duty to advise and assist. In this situation, you should consider responding to the request by providing the requester with the information from your publication scheme, along with an accompanying note directing the requester to the scheme where they may be able to obtain similar information in future.

If the information is available through another authority's publication scheme then the information may fall within the "information otherwise accessible" exemption contained in section 25(2)(a). This means that you do not have to provide the information to the applicant (although if you do hold it, you can choose to release the information in the usual way). If you choose not to provide the information, you should first be sure (checking if necessary) that the information is actually available from the other authority's publication scheme.

If the request has been made by telephone (and is therefore not a valid request under FOISA), you should direct the requestor to the other public authority, thereby fulfilling the duty to advise and assist set out in s15 of FOISA. If the request is in a valid format (see section 8), you must issue a formal refusal notice saying that although you hold the information, it is exempt from release under section 25 because it is available through another organisation's publication scheme. The refusal notice must also point out the requestor's right of review.

The Commissioner would like to remind public authorities that another public authority's publication scheme should only be relied on if the public authority which received the request knows for certain that the information is contained within the other publication scheme.

Publication has a slightly different meaning under FOI than in everyday usage. In terms of FOI it simply means making available information that is already prepared. The information must be available to anyone and easy to access quickly without having to make a request for it.

No. But the MPS does not ask you to publish information that you do not hold! But even if some of the classes in your Guide to Information are empty, do not delete them (it is an important principle of the MPS that it is adopted without amendment). You can add notes to your Guide to explain why your authority does not hold particular types of information.

No, if the authority does not hold information, there is no requirement to create or publish it. Of course, if you think that your authority ought to have a particular type of information, then you can decide to produce it in the future.

If information is exempt under the Act or the EIRs, e.g. sensitive personal information or a trade secret, you should remove or redact the information before publication and explain why you have done so.

It is better to publish a redacted document with an explanation, than to not publish it at all. But if you do publish redacted information do remember that some redactions might be time-sensitive, so will need to make sure redactions are reviewed periodically.

Yes. The MPS is the minimum information we expect authorities to publish. You can add more information to your Guide to Information. And if you think that the MPS could be improved, please do share your suggestions with us.

Yes. Your Guide should contain environmental information relevant to the classes of information. The publication scheme duty applies equally to environmental and non-environmental information. Section 73 of FOISA (Interpretation) does not make a distinction between environmental and non-environmental information. In any case, Regulation 4 of the Environmental Information (Scotland) Regulations 2004 (the EIRs) requires authorities to actively disseminate to the public the environmental information (relevant to its functions) that it holds. So the MPS will help you meet your EIRs duty too.

No. The service itself does not offer something that is pre-prepared and therefore you cannot claim that it is a 'publication'. For example, certified extracts from registers, family history searches and property enquiry certificates involve creating new information from other information which may already be published. The new information, or certificate, does not actually exist until someone asks you to create it. So it is not already prepared and available to anyone to access easily and quickly without having to make a request for it. Therefore it is not a 'publication' in terms of FOISA.

Yes, but such an arrangement should only be a temporary solution. You should have a firm plan to publish the information in the near future and, where possible, include the intended date in your Guide to Information. Not only is this good practice, but it will actually help you if you want to apply Section 27 (Information intended for future publication), as it shows that you actually do intend to publish the information.

No. All charges for publications in the Guide to Information must comply with the MPS principles. If an authority's agreed charges are not consistently applied, then the authority is not complying with the MPS and the authority does not have an approved publication scheme. This would be a breach of section 23 of FOISA.

We recommend that you raise the issue within your authority as soon as possible. It may help you to explain that the MPS charging principles were informed by case precedent under FOISA, the EIRs, and the Re-Use of Public Sector Information Regulations 2015.

It is unlikely. The test for Class 8 publications is whether the information could be sold through a commercial retailer. If, and only if, a commercial bookseller could stock and sell the information, can it be published through Class 8.

No, you can continue to publish Open Data throughout your authority's Guide to Information. You need to make sure that Class 9 sets out your authority's open data strategy and signposts people to the open data published.

The MPS requires you to publish information for the current and last two financial years. You can publish it for longer if it suits your business needs or you feel that there is a public interest in older information.

You don't have to - you're only expected to publish information you have.

If your organisation is subject to FOISA, it is subject to the publication scheme duty. This includes:

• Scottish public authorities listed in Schedule 1 of FOISA,
• Publicly-owned companies as defined by section 6 of FOISA, and
• Organisations designated by Scottish Ministers as subject to FOISA.

Read more about who is subject to FOISA. 

If your organisation is subject only to the EIRs (and not to FOISA), then it is not subject to the publication scheme duty. But be aware that the EIRs require proactive publication of environmental information.

Even if you are not covered, there is nothing to stop you following the MPS approach (although you will not have the Commissioner's formal approval and the public will not be able to complain to us about any compliance issues).

Failing to adopt a publication scheme is a breach of a statutory duty. The Commissioner will invoke his Enforcement Policy if an authority fails to adopt a scheme. We will give your authority notice that it has failed to comply with a provision of FOISA and we will enforce the notice as required. The Commissioner may refer a failure to comply with the notice to the Court of Session, where the failure to comply can be treated as contempt of court.