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Freedom of Information (Scotland) Act 2002

Status:

This is the original version (as it was originally enacted).

SCHEDULE 1Scottish Public Authorities

(introduced by section 3(1)(a)(i))

Part 1Ministers, The Parliament

1The Scottish Ministers.

2The Scottish Parliament.

3The Scottish Parliamentary Corporate Body.

Part 2Non Ministerial Office Holders In The Scottish Administration

4The Chief Dental Officer of the Scottish Administration.

5The Chief Medical Officer of the Scottish Administration.

6Her Majesty’s Chief Inspector of Constabulary.

7Her Majesty’s Chief Inspector of Prisons for Scotland.

8Her Majesty’s Inspector of Anatomy for Scotland.

9Her Majesty’s Inspector of Fire Services for Scotland.

10Her Majesty’s inspectors of schools (that is to say, the inspectors of schools appointed by Her Majesty on the recommendation of the Scottish Ministers under the Education (Scotland) Act 1980 (c. 44)).

11The Keeper of the Records of Scotland.

12The Keeper of the Registers of Scotland.

13A procurator fiscal.

14The Queen’s and Lord Treasurer’s Remembrancer.

15The Queen’s Printer for Scotland.

16The Registrar General of Births, Deaths and Marriages for Scotland.

17The Registrar of Independent Schools in Scotland.

18A rent officer appointed under section 43(3) of the Rent (Scotland) Act 1984 (c. 58).

19A social work inspector (that is to say, an officer authorised as such an inspector under section 6 of the Social Work (Scotland) Act 1968 (c. 49)).

Part 3Local Government

20An assessor appointed under section 27(2) of the Local Government etc. (Scotland) Act 1994 (c. 39).

21A council constituted by section 2 of that Act.

22A joint board, within the meaning of section 235(1) of the Local Government (Scotland) Act 1973 (c. 65).

23A licensing board constituted in accordance with the provisions of section 1 of the Licensing (Scotland) Act 1976 (c. 66).

24The Strathclyde Passenger Transport Authority.

Part 4The National Health Service

25The Clinical Standards Board for Scotland.

26The Common Services Agency for the Scottish Health Service.

27A Health Board, constituted under section 2 of the National Health Service (Scotland) Act 1978.

28The Health Education Board for Scotland.

29The Health Technology Board for Scotland.

30A local health council, established under section 7 of the National Health Service (Scotland) Act 1978.

31A National Health Service trust.

32NHS 24.

33A person providing general medical services, general dental services, general ophthalmic services or pharmaceutical services under Part II of the National Health Service (Scotland) Act 1978, but only in respect of information relating to the provision of those services.

34A person providing personal medical services or personal dental services under arrangements made under section 17C of that Act, but only in respect of information relating to the provision of those services.

35A person providing, in Scotland, piloted services within the meaning of the National Health Service (Primary Care) Act 1997 (c. 46), but only in respect of information relating to the provision of those services.

36The Post Qualification Education Board for Health Service Pharmacists in Scotland.

37The Scottish Advisory Committee on Distinction Awards.

38The Scottish Advisory Committee on the Medical Workforce.

39The Scottish Ambulance Service Board.

40The Scottish Council for Post Graduate Medical and Dental Education.

41The Scottish Dental Practice Board.

42The Scottish Health Advisory Service.

43The Scottish Hospital Endowments Research Trust.

44The Scottish Hospital Trust.

45The State Hospitals Board for Scotland.

46The Scottish Medical Practices Committee.

Part 5Educational institutions

47The board of management of a college of further education (expressions used in this paragraph having the same meaning as in section 36(1) of the Further and Higher Education (Scotland) Act 1992 (c. 37)).

48A central institution within the meaning of the Education (Scotland) Act 1980.

49An institution in receipt of funding from the Scottish Higher Education Funding Council other than any institution whose activities are principally carried on outwith Scotland.

Part 6Police

50A chief constable of a police force in Scotland.

51A joint police board constituted by an amalgamation scheme made or approved under the Police (Scotland) Act 1967 (c. 77).

52The Police Advisory Board for Scotland.

Part 7Others

53The Accounts Commission for Scotland.

54The Advisory Committee on Sites of Special Scientific Interest.

55The Ancient Monuments Board for Scotland.

56An area tourist board established by virtue of section 172(1) of the Local Government (Scotland) Act 1994 (c. 39).

57Audit Scotland.

58The Auditor General for Scotland.

59The Board of Trustees for the National Galleries of Scotland.

60The Board of Trustees of the National Museums of Scotland.

61The Board of Trustees of the Royal Botanic Garden, Edinburgh.

62The Central Advisory Committee on Justices of the Peace.

63The Crofters Commission.

64The Deer Commission for Scotland.

65The Fisheries Committee continued in existence by paragraph 5 of Schedule 9 to the Electricity Act 1989 (c. 29).

66The General Teaching Council for Scotland.

67Highlands and Islands Enterprise.

68The Historic Buildings Council for Scotland.

69A justice of the peace advisory committee.

70Learning and Teaching Scotland.

71The Local Government Boundary Commission for Scotland.

72The Mental Welfare Commission for Scotland.

73A National Park authority, established by virtue of schedule 1 to the National Parks (Scotland) Act 2000 (asp 10).

74The Parole Board for Scotland.

75A person appointed for Scotland under section 3(1) of the Local Government and Housing Act 1989 (c. 42).

76The Royal Commission on the Ancient and Historical Monuments of Scotland.

77The Scottish Agricultural Wages Board.

78The Scottish Arts Council.

79The Scottish charities nominee, appointed under section 12 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40).

80The Scottish Children’s Reporter Administration.

81The Scottish Commission for the Regulation of Care.

82The Scottish Conveyancing and Executry Services Board.

83The Scottish Criminal Cases Review Commission.

84Scottish Enterprise.

85The Scottish Environment Protection Agency.

86The Scottish Further Education Funding Council.

87The Scottish Higher Education Funding Council.

88Scottish Homes.

89The Scottish Industrial Development Advisory Board.

90The Scottish Information Commissioner.

91The Scottish Law Commission.

92The Scottish Legal Aid Board.

93Scottish Natural Heritage.

94The Scottish Prison Complaints Commission.

95The Scottish Public Services Ombudsman.

96The Scottish Qualifications Authority.

97The Scottish Records Advisory Council.

98Scottish Screen.

99The Scottish Social Services Council.

100The Scottish Sports Council.

101The Scottish Tourist Board.

102Scottish Water.

103Social Inclusion Partnerships.

104The Standards Commission for Scotland.

105The Trustees of the National Library of Scotland.

106The Water Industry Commissioner for Scotland.

SCHEDULE 2The Scottish Information Commissioner

(introduced by section 42(12))

Status

1The Commissioner and that officer’s staff are not to be regarded as servants or agents of the Crown or as having any status, immunity or privilege of the Crown; and the Commissioner’s property is not to be regarded as property of, or property held on behalf of, the Crown.

Pensions, allowances, etc.

2(1)The Parliamentary corporation may make arrangements for the payment of pensions, allowances or gratuities to, or in respect of, any person who has ceased to hold the office of Commissioner and (without prejudice to that generality) may—

(a)make contributions or payments towards provision for such pensions, allowances or gratuities; and

(b)for the purposes of this sub-paragraph, establish and administer one or more pension schemes.

(2)The references in sub-paragraph (1) to pensions, allowances and gratuities include references to, as the case may be, pensions, allowances or gratuities by way of compensation for loss of office.

Staff

3(1)The Commissioner may appoint such staff, on such terms and conditions, as that officer may determine.

(2)The Commissioner may make arrangements for the payment of pensions, allowances or gratuities to, or in respect of, any person who has ceased to be a member of such staff and (without prejudice to that generality) may—

(a)make contributions or payments towards provision for such pensions, allowances or gratuities; and

(b)for the purposes of this sub-paragraph, establish and administer one or more pension schemes.

(3)The references in sub-paragraph (2) to pensions, allowances and gratuities include references to, as the case may be, pensions, allowances or gratuities by way of compensation for loss of employment.

(4)A determination under sub-paragraph (1) requires, and arrangements under sub-paragraph (2) require, the approval of the Parliamentary corporation.

Accountable officer

4(1)The Parliamentary corporation is to designate the Commissioner or a member of that officer’s staff as the accountable officer for the purposes of this paragraph.

(2)The functions of the accountable officer are—

(a)those specified in sub-paragraph (3); and

(b)where the accountable officer is not the Commissioner, the duty set out in sub-paragraph (4),

and the accountable officer is answerable to the Parliament for the exercise of those functions.

(3)The functions referred to in sub-paragraph (2)(a) are—

(a)signing the accounts of the expenditure and receipts of the Commissioner;

(b)ensuring the propriety and regularity of the finances of the Commissioner; and

(c)ensuring that the resources of the Commissioner are used economically, efficiently and effectively.

(4)The duty referred to in sub-paragraph (2)(b) is a duty, where the accountable officer is required to act in some way but considers that to do so would be inconsistent with the proper performance of the functions specified in sub-paragraph (3), to—

(a)obtain written authority from the Commissioner before taking the action; and

(b)send a copy of that authority as soon as possible to the Auditor General.

Accounts

5(1)The Commissioner must—

(a)keep accounts; and

(b)prepare annual accounts in respect of each financial year,

in accordance with such directions as the Scottish Ministers may give that officer.

(2)The Commissioner must send a copy of the annual accounts to the Auditor General for Scotland for auditing.

(3)The financial year of the Commissioner is—

(a)the period beginning with the date on which the Commissioner is appointed and ending with 31st March next following that date; and

(b)each successive period of twelve months ending with 31st March.

(4)If requested by any person, the Commissioner must make available at any reasonable time, without charge, in printed or in electronic form, the audited accounts, so that they may be inspected by that person.

General powers

6The Commissioner may do anything which appears necessary or expedient for the purpose of, or in connection with, or which appears conducive to, the exercise of that officer’s functions; and without prejudice to that generality, may in particular—

(a)acquire and dispose of land and other property; and

(b)enter into contracts.

SCHEDULE 3Powers Of Entry And Inspection

(introduced by section 54)

Grant of warrants

1(1)If a sheriff is satisfied by evidence on oath supplied by the Commissioner that there are reasonable grounds for suspecting—

(a)that a Scottish public authority has failed or is failing to comply with—

(i)any of the requirements of Part 1 of this Act;

(ii)so much of a notice given to it by the Commissioner under subsection (5) of section 49 as, by virtue of subsection (6)(b) of that section, requires steps to be taken; or

(iii)an information notice or an enforcement notice; or

(b)that an offence under section 65(1) has been or is being committed,

and that evidence of such a failure to comply or of the commission of the offence is to be found on any premises specified as part of that evidence, the sheriff, subject to paragraph 2, may grant to the Commissioner such warrant as is mentioned in sub-paragraph (2).

(2)The warrant is one which authorises the Commissioner, or any member of the Commissioner’s staff, at any time within seven days after the date of the warrant—

(a)to enter and search the premises;

(b)to inspect and seize any documents or other material found there which may constitute the evidence in question; and

(c)to inspect, examine, operate and test any equipment found there in which information held by the authority may be recorded.

2(1)A sheriff must not grant the warrant unless satisfied—

(a)that the Commissioner has given seven days' notice in writing to the occupier of the premises demanding access to them; and

(b)that either—

(i)access was demanded at a reasonable hour and was unreasonably refused; or

(ii)although entry to the premises was granted, the occupier unreasonably refused to comply with a request by the Commissioner, or any member of the Commissioner’s staff, to permit the Commissioner or any such member of staff to do any of the things referred to in paragraph 1(2); and

(c)that the occupier has, after the refusal, been notified by the Commissioner of the application for the warrant and has had an opportunity of being heard by the sheriff on the question of whether or not it should be granted.

(2)Sub-paragraph (1) does not apply if the sheriff is satisfied that the case is one of urgency or that compliance with the provisions of that sub-paragraph would defeat the object of the entry.

Execution of warrants

3A person executing the warrant may use such reasonable force as may be necessary.

4The warrant must be executed at a reasonable hour, unless it appears to the person executing it that there are grounds for suspecting that the evidence in question would not be found if it were so executed.

5(1)If the premises in respect of which the warrant is granted are occupied by a Scottish public authority and any officer or employee of the authority is present when the warrant is executed, that officer or employee must be shown the warrant and supplied with a copy of it; and if no such officer or employee is present a copy of the warrant must be left in a prominent place on the premises.

(2)If the premises in respect of which the warrant is granted are occupied by a person other than a Scottish public authority and that person is present when the warrant is executed, the person must be shown the warrant and supplied with a copy of it; and if the person is not present a copy of the warrant must be left in a prominent place on the premises.

6(1)A person seizing anything in pursuance of the warrant must give a receipt for it if asked to do so.

(2)Anything so seized may be retained for so long as is necessary in all the circumstances; but the person in occupation of the premises must be given a copy of anything that is seized if that person so requests and the person executing the warrant considers that it can be done without undue delay.

Matters exempt from inspection and seizure

7The powers of inspection and seizure conferred by the warrant are not exercisable in respect of information which is exempt information by virtue of section 31(1).

8(1)Subject to the provisions of this paragraph, the powers of inspection and seizure conferred by the warrant are not exercisable in respect of—

(a)a communication between professional legal adviser and client in connection with the giving of legal advice to the client with respect to the client’s obligations, liabilities or rights under this Act; or

(b)a communication between professional legal adviser and client, or between such adviser or client and another person, made in connection with or in contemplation of proceedings under or arising out of this Act and for the purpose of such proceedings.

(2)Sub-paragraph (1) applies also to—

(a)a copy or other record of such communication as is there mentioned; and

(b)a document or article enclosed with or referred to in such communication if made in connection with the giving of any advice or, as the case may be, in connection with or in contemplation of and for the purpose of such proceedings as are there mentioned.

(3)This paragraph does not apply to anything in the possession of a person other than the professional legal adviser or client or to anything held with the intention of furthering a criminal purpose.

(4)In this paragraph references to the client of a professional legal adviser include references to a person representing such a client.

9If the person in occupation of premises in respect of which the warrant is granted objects to the inspection or seizure under it of any material on the grounds that the material consists partly of matters in respect of which those powers are not exercisable, that person must, if requested, provide in response to the warrant a copy of so much of the material as is material in relation to which the powers are exercisable.

Offences

10(1)A person who—

(a)intentionally obstructs a person who is executing the warrant; or

(b)fails, without reasonable excuse, to give the person who is executing the warrant such assistance as that person may reasonably require for executing it,

is guilty of an offence.

(2)A person guilty of an offence under sub-paragraph (1) is liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.

Vessels, vehicles etc.

11In this schedule, “premises” includes vessel, vehicle, aircraft or hovercraft, and references to the occupier of premises include references to the person in charge of a vessel, vehicle, aircraft or hovercraft.

SCHEDULE 4Consequential Amendments To Scottish Public Services Ombudsman Act 2002

(introduced by section 71(2))

1In section 19(8) of the Scottish Public Services Ombudsman Act 2002 (asp 11) (which restricts the purposes for which information obtained by the Ombudsman from the Information Commissioner may be disclosed)—

(a)the words from “the Information Commissioner” to “Freedom of Information Act 2000 (c. 36)” become paragraph (a); and

(b)after that paragraph, there is inserted the word “or” and the following paragraph—

(b)the Scottish Information Commissioner by virtue of section 63 of the Freedom of Information (Scotland) Act 2002 (asp 13),.

2In schedule 5 to that Act (which specifies persons or bodies to whom the Ombudsman in certain circumstances may disclose information in relation to certain matters), after the entry relating to the Information Commissioner, there is inserted—

The Scottish Information Commissioner
1.

A matter in respect of which the Commissioner could exercise any power conferred by—

(a)

section 44 (recommendations as to good practice) of the Freedom of Information (Scotland) Act 2002 (asp 13); or

(b)

Part 4 (enforcement) of that Act

2.

The commission of an offence under section 65 (offence of altering etc. records with intent to prevent disclosure) of that Act.

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