Freedom of information in Scotland (FOISA)

Publication schemes

Section 23 of FOISA requires every Scottish public authority to adopt and maintain a publication scheme approved by the Commissioner, to publish information under it, and to review it from time to time ⁴. The scheme must specify the classes of information the authority publishes or intends to publish, how it does so, and whether the information is free or charged for ⁴.

When adopting or reviewing its scheme, an authority must have regard to the public interest in access to its information and in the publication of reasons for its decisions ⁴. The Commissioner can set an expiry date on an approval and can revoke an approval with effect from six months after notice, giving reasons ⁴.

The time limits

The Commissioner says working days run Monday to Friday and exclude bank holidays. Where a request goes by post, it advises allowing three days for delivery each way ⁶. If the authority asks for clarification, the 20 working days start once the details are given ⁶.

Not held and neither confirm nor deny

Section 17 applies where an authority receives a request it would have to answer if it held the information, but it does not hold it. The authority must give the applicant written notice that it does not hold the information within the time allowed by section 10 ².

Section 18 is the Scottish neither confirm nor deny rule. Where the information would be exempt under any of sections 28 to 35, 38, 39(1) or 41, and the authority considers that revealing whether it exists or is held would be contrary to the public interest, it may give a refusal notice whether or not the information exists ⁵. The ordinary requirement to disclose that the information is held does not apply to that notice ⁵.

A not held notice can be reviewed. Section 20 lists a section 17(1) notice among the responses that start the 40 working day period for a review ³.

Review and appeal

• A requirement for review must be in writing or in another permanent form, and must specify the request and the matter the applicant is unhappy about ³.
• An authority may accept a late review request if it considers it appropriate ³.
• The Commissioner cannot act until a review has been requested and 20 working days have been allowed for the reply ⁸.
• The Commissioner reported that cases were taking up to nine months to be allocated for investigation, after an unprecedented number of appeals since the start of 2025/26 ⁸.
• Under section 48 the Commissioner cannot investigate requests handled by the Lord Advocate, the Crown Office or a Procurator Fiscal, among others ⁸.

Offence and records management

Section 65 makes it an offence to alter, deface, block, erase, destroy or conceal a record held by the authority with the intention of preventing disclosure, after a request has been made by an applicant entitled to the information ⁹. The offence applies to the authority and to anyone employed by it, an officer of it or subject to its direction. The penalty on summary conviction is a fine not exceeding level 5 on the standard scale ⁹.

Records management in Scotland has its own statute. The Public Records (Scotland) Act 2011 requires each authority it covers to prepare a records management plan, submit it to the Keeper for agreement, and manage its public records in line with the agreed plan ¹⁰.