Does FOIA or FOISA apply to a Scottish body?

What it is

Freedom of information is devolved in Scotland. FOISA differs from FOIA in several ways: a harm test of substantial prejudice, a mandatory internal review, a £600 cost limit at £15 an hour, a longer prosecution window for the destruction offence, and appeals to the Court of Session rather than a tribunal. Environmental information requests to Scottish authorities go under the EIRS 2004.

Which law applies

• Scottish public authorities listed in FOISA Schedule 1 or designated: FOISA. FOISA s.3
• UK government departments and UK-wide bodies, even in Scotland: FOIA. FOIA s.80
• Environmental information held by a Scottish authority: EIRS. EIRS reg 2

Who is responsible

The authority, which should tell requesters which regime applies.

What it involves

1. Check the authority's status.
2. Apply the right regime and timescales.
3. Signpost the right regulator for appeals.

If it goes wrong

Regulatory

The requester can apply to the Scottish Information Commissioner, whose decision can be appealed to the Inner House of the Court of Session on a point of law. Failing to comply with a decision can be certified to the Court of Session and dealt with as contempt.

Criminal

Altering, defacing, blocking, erasing, destroying or concealing a record with intent to prevent its disclosure is an offence under FOISA s.65 and EIRS reg 19, with up to three years to prosecute under s.65A.

Civil

No right to compensation. Enforcement runs through the regulator and the tribunal.