Freedom of Information (Scotland) Act 2002

45 Confidentiality of information obtained by or furnished to Commissioner S

(1) A person who is or has been the Commissioner, a member of the Commissioner’s staff or an agent of the Commissioner must not disclose any information which—

(a) has been obtained by, or furnished to, the Commissioner under or for the purposes of this Act; and

(b) is not at the time of the disclosure, and has not previously been, available to the public from another source,

unless the disclosure is made with lawful authority.

(2) For the purposes of subsection (1), disclosure is made with lawful authority only if, and to the extent that—

(a) the disclosure is made with the consent of the person from whom the information was so obtained or by whom it was so furnished;

(b) the information was provided for the purpose of its being made available to the public (in whatever manner) under a provision of this Act;

(c) the disclosure is made for the purpose of, and is necessary for, the discharge of—

(i) a function under this Act; or

(ii) [F1 an [F2 assimilated]] obligation;

(d) the disclosure is made for the purpose of proceedings, whether criminal or civil and whether arising under, or by virtue of, this Act or otherwise; or

(e) either—

(i) in a case where the person mentioned in paragraph (a) is a Scottish public authority, had that person received on the day of disclosure a request for the information that person; or

(ii) in any other case, had the Commissioner received on that day such a request the Commissioner,

would, by virtue of section 1(1), have been under an obligation to give it.

(3) A person who knowingly or recklessly discloses information in contravention of subsection (1) is guilty of an offence.

(4) A person guilty of an offence under subsection (3) is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment, to a fine.

Textual Amendments

F1 Words in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I. 2011/1043), arts. 2, 3, 6 (with art. 3(2)(3), 4(2), 6(4)(5))

F2 Word in s. 45(2)(c)(ii) substituted (1.1.2024) by The Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendments) (Scotland) Regulations 2023 (S.S.I. 2023/374), reg. 1(1), sch. 1 para. 3(3)

Modifications etc. (not altering text)

C1 S. 45 applied (with modifications) (1.1.2005) by The Environmental Information (Scotland) Regulations 2004 (S.S.I. 2004/520), reg 18(5)(6) (with reg. 3)