Exemption Briefing Series

Information otherwise accessible

Executive Summary
This briefing provides guidance on the consideration and the application of the exemption under section 25 (Information otherwise accessible) of the Freedom of Information (Scotland) Act 2002 (FOISA), and regulation 6(1)(b) (Form and format of information) of the Environmental Information (Scotland) Regulations 2004 (the EIRs). Section 25 says that a Scottish public authority does not need to provide information requested under section 1of FOISA if that information is reasonably obtainable to the applicant by other means, even where a fee may be charged. This is an absolute exemption, meaning that where information meets the criteria in section 25, there is no requirement to go on to apply the public interest test. Where section 25 applies, authorities do not have to supply the information requested, but they must tell the applicant why they believe the information is available through other means. Given public authorities duties to provide advice and assistance to applicants (under section 15 of FOISA) this will normally include telling the applicant where the information can be obtained. EIRs regulation 6(1)(b) allows an authority to refuse to provide information in a particular form or format if the information is already publicly available and easily accessible to the applicant in another form or format.

This briefing is intended to provide general guidance on the interpretation and application of the relevant section. Please remember that all requests for information must be considered on a case by case basis, and the Commissioners decision is made on the basis of the specific circumstances of each case.

The FOISA Exemption Section 25

Part 1: What does the law say? Section 25 Information otherwise accessible (1) Information which the applicant can reasonably obtain other than by requesting it under section 1(1) is exempt information. (2) For the purposes of subsection (1), information (a) may be reasonably obtainable even if payment is required for access to it; (b) is to be taken as reasonably obtainable ifi. the Scottish public authority which holds it, or any other person, is obliged by or under any enactment to communicate it (otherwise than by making it available for inspection) to; or ii. the Keeper of the Records of Scotland holds it and makes it available for inspection and (in so far as practicable) copying by, members of the public on request, whether free of charge or on payment. (3) For the purposes of subsection (1), information which does not fall within paragraph (b) of subsection (2) is not, merely because it is available on request from the Scottish public authority which holds it, reasonably obtainable unless it is made available in accordance with the authoritys publication scheme and any payment required is specified in, or determined in accordance with, the scheme.

Part 2: Background to the exemption 2.1 Interpreting the exemption

Section 25 of FOISA allows Scottish public authorities to refuse any requests for information which is reasonably obtainable to the applicant other than by making a request under FOISA. Section 25 has a different focus from most other exemptions in FOISA. It is not about withholding the information from the public but instead recognises that where information is already available to the applicant there is no need to provide an alternative right of access to it through FOISA.

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Glossary of Terms

Reasonably obtainable The concept of reasonably obtainable is pivotal to the application of section 25. Part 3 of this briefing considers what is meant by reasonably obtainable in a range of different contexts. Whether information is reasonably obtainable is a qualified test. In practice, what this means is that a public authority must take the particular circumstances of a requester into account when deciding whether existing circumstances or arrangements for access to the information makes it reasonably obtainable for them. Enactment An enactment refers to any primary or secondary legislation of the UK Parliament or the Scottish Parliament.

Primary legislation means all Acts passed by the UK Parliament or Scottish Parliament. Secondary legislation (sometimes referred to as subordinate or delegated legislation) is the term given to legislation such as orders, rules or regulations (known as statutory instruments) which are made under an Act of the UK or Scottish Parliament.

Keeper of the Records of Scotland The Keeper of the Records of Scotland is the Head of the National Archives of Scotland (NAS) and is responsible to the Scottish Ministers for the management of the NAS and to the Lord President of the Court of Session for the efficient management of the court and other legal records in Scotland. The NAS exists to select, preserve, and make available the national archives of Scotland in whatever medium, to the highest standards; to promote the growth and maintenance of proper archive provision throughout the country; and to lead the development of archival practice in Scotland. Publication scheme Section 23 of FOISA imposes a duty on all Scottish public authorities to adopt and maintain a publication scheme which is approved by the Scottish Information Commissioner; to publish information in accordance with the scheme; and to review the scheme from time to time. Every Scottish public authority covered by FOISA must therefore have a publication scheme. Publication schemes are high level, strategic documents in which public authorities make binding commitments to make information available to the general public. They specify the information that an authority publishes or intends to publish, the manner in which the information will be made available, and whether information accessible via the scheme will be free or subject to a charge. A publication scheme explains how to access the information that the authority publishes, and enables a member of the public to access that information without having to make a written information request under FOISA. Publication schemes should be easily accessible, and designed to be easy to understand and use by everyone.

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Duration of the exemption

Section 25 of FOISA is not time-bound. In other words, the exemption will apply regardless of the age of the information being sought. Resources:

Commissioners Guidance:

The Scottish Information Commissioners publication scheme guidance, which provides guidance on the requirements of section 23 of FOISA can be found at: www.itspublicknowledge.info/publicationschemeguidance The National Archives of Scotland www.nas.gov.uk/ Part 3: Applying the exemption This section sets out the test and questions which must be considered when deciding whether section 25 can be applied. All parts of the section 25 exemption are absolute i.e. all that is required is to determine that the conditions set out apply there is no need to go on to consider the public interest test. 3.1 Section 25(1) Information which the applicant can reasonably obtain

This exemption applies to Information which the applicant can reasonably obtain. Information may be generally accessible to the public at large but not to an individual applicant if their personal circumstances prevent them from obtaining it. Conversely, it may be that information is obtainable by the applicant (e.g. because they already have a copy of the information) but isnt reasonably obtainable by the public at large. This is one of the few exemptions in FOISA where the identity of the applicant is a relevant factor. For example, a person with a visual impairment might not be able to access information provided only on a website, while a person living a long way from the public authoritys premises might find it unreasonable if they are expected to travel to see the information. The information does not have to be in the public authoritys publication scheme in order for this exemption to apply. However, where information is not available through the publication scheme, the authority will have to provide the requester with its reasons for considering that the information is reasonably obtainable when applying the section 25(1) exemption. (Where information is available through the publication scheme, this will be sufficient justification that the information is reasonably obtainable see paragraph 3.5 below.) 3.2 Section 25(2)(a) - Is the information reasonably obtainable even if payment is required?

The price charged for the information may also be a relevant factor in deciding whether section 25 applies, although FOISA makes it clear that information may be regarded as reasonably obtainable even if payment is required for access to it, so the existence alone of a fee for the information is not enough to mean it is not reasonably obtainable. Information which is held by the pubic authority but also commercially available, such as Ordnance Survey maps, journals or books, is covered by this exemption. The Commissioner accepts the view that the market price for this type of information will generally be taken as reasonable. 4

Whether other types of information are reasonably obtainable may depend on an applicants circumstances. If the applicants means are limited or the fee payable to access the information is high, the information may not be reasonably obtainable to that applicant. Charges for information provided through the authoritys publication scheme must be made clear within the scheme itself, and because all publication schemes are approved by the Scottish Information Commissioner, such charges can be regarded as reasonable. However, it might not be reasonable for an authority to insist that an applicant purchases a whole document in order to obtain information which makes up only a small part of that document. 3.3 Section 25(2)(b)(i) - Is an authority obliged to communicate the information under any enactment?

Section 25(2)(b)(i) explains that any information which a public authority is already obliged to make public under any enactment will be taken to be reasonably obtainable by the applicant for the purposes of section 25(1). As explained in the Glossary, any enactment refers to Primary Legislation (Acts of the Scottish Parliament and Acts of the UK Parliament) and Secondary Legislation (orders, rules or regulations, also often known as statutory instruments, made under an Act of Parliament). Section 25(1) could therefore be applied, for example, to the antisocial behaviour strategies of local authorities (which they are required to publish under the Antisocial Behaviour Etc. (Scotland) Act 2004). Section 25(2)(b)(i) will not apply, however, where the statutory obligation is only to make the information available by inspection. However, an authority might still be able to apply the exemption in section 25(1) if the information is made available for inspection in circumstances that make it reasonably accessible by the particular requester, or if the information is made available for inspection in accordance with the public authoritys publication scheme (see section 3.5 below). 3.4 Section 25(b)(ii) Is the information reasonably obtainable from the Keeper of the Records of Scotland (i.e. National Archives of Scotland)? Any information held by the Keeper of the Records of Scotland (i.e. by the National Archives of Scotland) which is made available to members of the public for inspection and (in so far as practicable) copying, is exempt under section 25, even if it would not be practical for someone to visit the National Archives to obtain a copy of the information. This part of the section 25 exemption was added to the draft Freedom of Information (Scotland) Bill after several archival organisations successfully argued that one of the Keepers key roles is to provide access to records held in the National Archives of Scotland and, therefore, it was not necessary to require him to do so in accordance with FOISA. However, section 25(2)(b)(ii) will not apply to information held by the Keeper of the Records of Scotland which is not available for inspection by members of the public, and so such information will not be exempt under section 25(1), unless it can be demonstrated to be reasonably accessible to the particular requestor through other means.

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Section 25(3) - Is the information reasonably obtainable through a publication scheme?

Section 25(3) of FOISA was considered by the Court of Session in case Glasgow City Council v Scottish Information Commissioner [2009] CSIH 73. The Court confirmed that its effect is that any information made available under a publication scheme which has been approved by the Scottish Information Commissioner is presumed to be reasonably obtainable and therefore exempt from disclosure under section 25(1) of FOISA. Separate consideration of whether the information is accessible to the particular person requesting the information will not be required in these circumstances.

This provision does not mean that only information contained within a publication scheme (or falling into one of the categories mentioned in section 25(2)) can be found to be exempt under section 25(1), but it ensures that all information made available in terms of an approved publication scheme is deemed to be exempt under section 25(1). Public authorities should remember that, where they refuse to supply an applicant with information because it is accessible via their publication scheme, they must still issue a formal refusal notice under section 16 of FOISA, citing the exemption in section 25(1).

What if information in a publication scheme is available by inspection only?

Information which a public authority has a duty to make available under an enactment, but on an inspectiononly basis, is not automatically considered to be reasonably obtainable (and therefore, exempt under section 25) - although, depending on the particulars of the case, the information might well be reasonably obtainable to the applicant. (The rules are slightly different for information held by the National Archives of Scotland see 3.4 above). As noted above, information available through a publication scheme is, however, automatically deemed to be otherwise accessible and that includes information which has been made available through the authoritys publication scheme for inspection only. However, the Commissioner will approve publication schemes which include classes of information which are accessible by inspection only in very exceptional circumstances. (For further guidance on the requirements of section 23 of FOISA, please see Resources section above). 3.6 Other considerations

a) Is information held in libraries and archives reasonably obtainable under section 25? Although the core business of libraries and archives is making information available, this is usually done within a framework of rules and regulations governing access, and for this reason, library stock and archive collections have not, as a rule, been accepted as information classes in publication schemes which have been approved by the Commissioner. Instead authorities have been encouraged to provide access to catalogues/indexes, opening times, and membership or access regulations through their publication schemes. Where these are available through a publication scheme, a library or public archive might argue that the information it holds has been made available in accordance with its publication scheme and is therefore reasonably obtainable for the purposes of section 25. However, this interpretation could be challenged by applicants whose circumstances prevent them from obtaining the information from that library or public archive through the normal access arrangements (see section 3.1 above).

Where this is the case, however, the information might still be reasonably obtainable to the applicant elsewhere for example the applicant might be able to buy it, or it may be held by another authority to which the applicant has easier access (see c) below). In these circumstances, the authority must be able to demonstrate that it is the case, if it intends to claim this exemption. b) Considerations when the applicant seeks information in a particular format In general, FOISA gives applicants the right to ask for either: a copy of the information; a summary or digest of the information; or the opportunity to inspect a record containing the information. Where reasonably practicable, the authority must provide the information in the format requested (FOISA section 11). The Court of Session considered the relationship between the exemption in section 25, and the right to ask for information in particular formats in section 11 in the case Glasgow City Council v Scottish Information Commissioner [2009] CSIH 73. It confirmed that, where information is found to be exempt in terms of section 25(1), the right under section 11 to request that information in one of the specified forms does not apply. If information is accepted to be reasonably accessible to an applicant in one form or format, there is no obligation on a public authority to provide information in a different form or format to meet the applicants preference. However, public authorities may separately need to consider their duties in terms of equality legislation when dealing with any request for the provision of information in a particular format (e.g. Braille or large print) or language. The authority should have regard to paragraph 1.3 of the Section 60/62 Code of Practice which makes it clear that authorities should have regard to their duties under equality legislation such as the Disability Discrimination Act in ensuring accessibility for all. Within publication schemes, the Commissioner encourages public authorities to make information available in a range of formats (including printed copies as well as online access or inspection) wherever possible to ensure that information that is routinely published and exempt in terms of section 25(1) is as widely available as possible. c) When information is available from another public authority If a public authority receives a request for information which it holds but which has not been made available under its own publication scheme, and is aware that the information is already available through another authoritys publication scheme, then the authority could claim that the information is otherwise accessible. However, staff should check that the information is, in fact, available from the other authority before refusing the applicants request. Under their duty to advise and assist applicants (section 15 of FOISA) the authority should direct the applicant towards the authority which does hold the information. d) Other considerations highlighted by the Commissioners decisions The Commissioners decisions highlight some other factors to consider when applying section 25 of FOISA:

Decision 013/2007 Mr D and the Chief Constable of Strathclyde Police the Police argued that because Mr D could seek a court order (in terms of Section 1(1)(a) of the Administration of Justice (Scotland) Act 1972) to obtain the information, the information was otherwise reasonably obtainable by him. However, the Commissioner disagreed.

Decision 143/2007 Mr Barry Winetrobe and the Scottish Executive the Commissioner did not accept that section 25 of FOISA had been correctly applied as Mr Winetrobes request encompassed drafts when only the final versions of documents were in the public domain. Decision 209/2006 Mr David Hutchison and the Scottish Executive the Commissioner did not accept that the information requested by Mr Hutchison was information which he could reasonably obtain other than by requesting it under section 1(1) of FOISA. The information was not considered reasonably obtainable as the applicant would have had to access a number of different websites or contact the offices of several political parties in order to obtain the information. Decision 206/2010 Mr Ian Benson and the University of Glasgow although the email addresses requested by Mr Benson were all available through the University website, each one had to be accessed individually. The Commissioner did not accept that information which would take around 25 hours to obtain could be described as "reasonably" obtainable. Section 15 - Duty to provide advice and assistance

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If a public authority refuses a request for information on the grounds that it is otherwise accessible, it should send the applicant a refusal notice which acknowledges that it holds the information and explains why the exemption applies (for more information on refusal notices, see section 16 of FOISA). Before doing so, the authority should have established that the exact information the applicant has asked for is in fact available elsewhere, or it should otherwise be able to show why it believes the information is reasonably obtainable. The authority should not assume that the applicant will know where and how the information can otherwise be obtained, and if the information is already publicly available (e.g. under other legislation) the authority should tell the applicant how to access it, and provide adequate signposting e.g. via direct links to online information. In all cases the authority should bear in mind its general duty to provide advice and assistance to applicants (section 15 of FOISA). More advice on how to comply with this duty can be found in the Ministers Section 60/62 Code of Practice. The Commissioners decisions highlight several occasions when the duty to advise and assist has been a factor in cases involving section 25 of FOISA:

Decision 039/2007 Michael Matheson and the Scottish Executive the Commissioner accepted that the documents requested were readily accessible to Mr Matheson on the Scottish Government and Scottish Parliament websites and so were exempt under section 25. However, the Commissioner also noted that Ministers had failed to describe the information in sufficient detail to enable Mr Matheson to locate it himself, referring merely to parliamentary questions or news releases. The Commissioner concluded that Ministers had not discharged their duty to provide advice and assistance to Mr Matheson under section 15 of FOISA. Decision 081/2005 Mrs M Lee (Upper Myrtlefield Residents Group) and Highland Council Although the Commissioner accepted the Councils application of section 25 (the information Mrs Lee sought was available through its publication scheme), he noted that the Council had not cited the relevant exemption to Mrs Lee, not had it provided her with reasonable advice and assistance to enable her to locate the information herself. The Commissioner highlighted that it was prudent in all cases where section 25 is (or should be) cited to advise the applicant where the information can be obtained.

Resources: Section 25

Commissioners Decisions:

The full text of all of the Commissioners decisions, including those referenced above, can be viewed on the Commissioners website. To view a decision, go to www.itspublicknowledge.info/decisions and enter the relevant decision number (e.g. 0xx/200x) in the Search bar. Opinion of the Court of Session in the case Glasgow City Council v Scottish Information Commissioner [2009] CSIH 73: www.scotcourts.gov.uk/opinions/2009CSIH73.html

Other resources:

Scottish Ministers Code of Practice on the Discharge of Functions by Scottish Public Authorities under the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004 (the Section 60/62 Code of Practice): www.scotland.gov.uk/Resource/Doc/933/0109425.pdf

If you do not have access to the internet, you can contact our office to request a copy of any of the Commissioners briefings or decisions. Contact details are available at the end of this document.

The EIR Exception Regulation 6(1)(b)

There is no equivalent exception for Information otherwise accessible under the EIRs. However, regulation 6(1)(b) of the EIRs states that, where an applicant requests that environmental information be made available in a particular form or format, a Scottish public authority shall comply with that request unless the information is already publicly available and easily accessible to the applicant in another form or format. Where this regulation applies, the Commissioner has also made clear that he would expect a public authority to provide adequate advice and assistance (in terms of regulation 9(1) of the EIRs) to ensure that the requestor was able access the information. Regulation 6(1)(b) Form and format of information

(1) Where an applicant requests that environmental information be made available in a particular form or format, a Scottish public authority shall comply with that request unless (b) the information is already publicly available and easily accessible to the applicant in another form or format. Decision 074/2007 Mr L and the City of Edinburgh Council The Council stated that the information was accessible either through its website or by viewing paper copies of the files on the Council premises. Although the Commissioners investigation focussed on whether the Council held any information over and above that held on the publicly accessible planning file, he commented that where an authority receives an information request it will only be appropriate to rely on the publicly available planning file as the definitive source of information where it is entirely confident that all the information received and recorded by its officers relating to that application is copied to the relevant file. Decision 052/2008 Mr Stuart Nicolson and the Scottish Ministers The Commissioner accepted that a parliamentary question was publicly available and reasonably accessible to Mr Nicolson. However, the Commissioner noted that he would expect a Scottish public authority relying on regulation 6(1)(b) to provide an applicant with sufficient information to allow location of the information. Since this had not happened in this case, he found that the Ministers had failed complied with the duty in regulation 9(1). Decision 073/2010 Dr A D Hawkins and Scottish National Heritage (SNH) Dr Hawkins had requested environmental information relating to the River Dee Special Area of Conservation, and particularly the state of freshwater pearl mussels. SNH argued that much of the withheld information was already publicly available and easily accessible within published reports. However, the published reports, while containing much of the withheld information, were found to be materially different from the documents under consideration. The Commissioner noted that the EIRs must be interpreted consistently with the Aarhus Convention from which they are ultimately derived. Article 4(3) of that Convention obliges public authorities to make environmental information available when requested including copies of the actual documentation containing or comprising such information. The Commissioner concluded that since the information under consideration was not publicly available in the form of the complete documents, regulation 6(1)(b) could not be applied to any parts of the documents.

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Resources: Regulation 6(1)(b)

Commissioners Decisions:

The full text of all of the Commissioners decisions, including those referenced above, can be viewed on the Commissioners website. To view a decision, go to www.itspublicknowledge.info/decisions and enter the relevant decision number (e.g. 0xx/200x) in the Search bar.

Guidance on the EIRs

The Commissioner has produced separate detailed guidance on the EIRs, available at: www.itspublicknowledge.info/uploadedfiles/EIRGuidance.pdf The UNECE has published an Aarhus Convention Implementation Guide. It can be found at www.unece.org/env/pp/acig.htm

The Public Interest Test:

The Commissioners briefing on the public interest test is available at www.itspublicknowledge.info/Law/FOISA-EIRsGuidance/ThePublicInterestTest.

If you do not have access to the internet, you can contact our office to request a copy of any of the Commissioners briefings or decisions. Contact details are available at the end of this document.

For more information contact: The Scottish Information Commissioner Kinburn Castle, Doubledykes Road, St Andrews KY16 9DS T: 01334 464610 F: 01334 464611 enquiries@itspublicknowledge.info www.itspublicknowledge.info Briefing last reviewed in full: November 2011 Briefing last updated: November 2011

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