By now, most Registered Social Landlords (RSLs) in Scotland will have dealt with a Freedom of Information (FOI) request. It may be a more regular occurrence for some RSLs than others. Regardless if you receive one or one hundred FOI requests, each request must be dealt with in accordance with the rules set out in Freedom of Information (Scotland) Act 2002 (FOISA). To assist RSLs in following the correct process, we have created a handy checklist to which you can refer to which provides brief guidance on how to handle a FOI request.
On receiving a FOI request RSLs should consider the following:
- What information is being requested?
If the information being requested is Environmental Information, the request is not treated in accordance with the provisions FOISA but is instead subject to The Environmental Information (Scotland) Regulations 2004 (EIRs). EIR requests are treated slightly differently to FOI requests. More information on EIR requests can be found here.
If a person requests their own personal data then this should be treated as a Subject Access Request.
If the request does not concern Environmental Information or is not requesting the personal data of the requester then it is likely to be a FOI request and should be treated in accordance with the information below.
- Is it a valid request?
The first thing that has to be established is whether the request is valid. For a request to be valid it must:
- be in writing or in another form which is capable of being recorded (i.e. audio/video tapes or voicemails that are capable of being stored and subsequently referred to);
- contain the name of the requester – requests cannot be made anonymously or by pseudonyms. If the request is being made on behalf of another person, the person whose behalf it is being made must be identified in the request;
- contain a correspondence address – this can be an email or postal address; and
- contain a description of the information the requester is seeking. For RSLs, the requested information must fall within one of the following categories:
- the prevention and alleviation of homelessness;
- the management of social housing accommodation (i.e. where an RSL has granted a Scottish secure tenancy of short Scottish secure tenancy);
- the provision and management of sites for gypsies and travellers; and
- finance and governance information supplied to SHR.
If it doesn’t fall within any of the abovementioned categories then an RSL is not obliged to release the information.
A RSL is required to provide reasonable advice and assistance to people who have made, or are planning to make, a request for information. Therefore if you receive an invalid request you should provide such advice and assistance to the requester to allow them to make the request valid.
Likewise, if you require clarification in relation to a request you should contact the requester for this ASAP to allow you to respond.
- Do you hold the information requested?
FOISA defines “Information” as information recorded in any form. If an RSL holds the requested information (and it falls within the remit of FOISA – as noted above) they are obliged to release it, subject to certain exemptions. A third party can hold information on your behalf, so although you may not hold it directly you will have to consider whether or not the information is held by a third party on your behalf.
- Can the information be disclosed?
Your general starting point when dealing with a FOI request should be considering if the information can be shared (opposed to asking how it can be withheld). If you are concerned that the information cannot or should not be released, you should consider whether any of the exemptions listed in FOISA apply, e.g. the information contains personal data, or its release would prejudice the commercial interests of any person or organisation. Guidance on all the exemptions can be found here. If none of the exemptions apply, and the information falls within the scope of FOISA, then it is likely that the RSL is legally obliged to release the information.
Finally, you must issue a response within 20 working days of receiving a request. Even if you are rejecting a request (e.g. because it is not valid) a response still has to be issued within this timescale. You are required to include certain information in responses e.g. referencing the correct clause(s) in FOISA. Further guidance on this can be found here.
If you require any assistance with responding to a request or complying with your FOISA obligations please do not hesitate to get in touch with a member of our team.