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Commissioner marks 5th Anniversary of freedom of information with call to authorities not to keep people in the dark about their rights

Image of candle in shape of number 5News release: 4 January 2010

The Scottish Information Commissioner today [4 January 2010] marked the 5th anniversary of Scotland's freedom of information (FOI) laws by challenging public authorities to do even more to tell the public of their rights under FOI. The call coincides with newly-published research which finds that authorities may still be failing to respond appropriately to the requests for information they receive.

The study, which was carried out by researchers at the University of Strathclyde, examined the use of FOI by voluntary organisations and campaign groups across Scotland. It found that where requests for information were refused, more than half of respondents reported that the public authority failed to notify them of their right to appeal against the refusal, despite there being a legal requirement to do so. The researchers also found that, where appeals against refusal were made to an authority, one in four respondents said the authority failed to notify them of their right of further appeal to the Scottish Information Commissioner - the independent public official who enforces freedom of information laws.

Speaking to mark the 5th anniversary of the introduction of FOI, Kevin Dunion, the Scottish Information Commissioner said:

"The good news is that Scotland has become more open in the five years since freedom of information was introduced, with Scotland's public authorities disclosing more information than ever before. The bad news is that when authorities refuse to give out information, they often still fail in their legal duty to inform people of their right of appeal.

"The appeal provisions are an essential part of our FOI laws and they are effective: more than half of my rulings overturn an authority's decision in some way. While I am reassured that most FOI requests are answered in full first time, it is extremely important that public authorities tell people of their right to challenge any refusal to provide information. Keeping the public in the dark about their rights runs contrary to the freedom of information legislation."

The research was undertaken by the University of Strathclyde as part of an ongoing 3-year study into the use of FOI laws by the voluntary sector. The study also found that almost half (49%) of the voluntary sector respondents surveyed would be discouraged from requesting information under FOI because of a fear that it might harm working or funding relationships.

The Commissioner added:

"I am concerned that a substantial proportion of voluntary sector staff think that using their freedom of information rights will harm relations with public authorities, or may even lead to a loss in funding. In passing the FOI Act, the Scottish Parliament's intention was to transform the culture within Scottish public authorities, making them more open and accountable to everyone, regardless of where they are from, or who they represent. No-one should fear the consequences of making an FOI request."

Other findings from the University of Strathclyde's research report include:

  • 78% of voluntary sector respondents are aware of FOI.
  • Only 44% of respondents were confident they would receive the information they asked for if they made an FOI request.
  • 51% of respondents stated that they had made an information request.
  • 67% of those who had made a request received all the information they sought, first time.
  • 28% of respondents disagreed that public authorities treat all FOI requests equally, regardless of who is requesting the information.
  • 55% of those who had a request refused reported that they were not told of their right to appeal the decision, despite there being a statutory obligation to do so.
  • 26% of respondents who did appeal, however, report that they were not told of their subsequent right of appeal to the Scottish Information Commissioner.
  • 84% of the organisations that responded were funded, either wholly or in part, by public authorities.

Commenting on the findings, the architect of Scotland's FOI laws, former Deputy First Minister Jim Wallace (now Lord Wallace of Tankerness), said:

"There is no doubt that five years of Freedom of Information in operation in Scotland has made a real difference. I'm aware of a number of cases which may not have hit headlines, but have helped the individual citizen and helped to hold Scottish public authorities to account.

However, whilst legislation is vital in securing greater openness in government, a culture of openness is every bit as important - possibly even more so. The research findings from the University of Strathclyde, published today, therefore present a mixed picture.

It is a welcome achievement of the legislation that more than two-thirds of voluntary organisations requesting information received wholly satisfactory responses at the first time of asking. But it is disturbing that when a request was refused, respondents reported that the public authority did not comply with its legal duty to inform the applicant of the rights of appeal. That suggests that we are still some way from a wholehearted culture of openness.

The essence of the legislation is intended, unequivocally, to promote openness and benefit the citizen. But properly embracing that spirit can bring benefit to both citizen and public body. As we mark this milestone anniversary, I hope Scotland's public authorities will show a ready willingness to implement both the letter and the spirit of the law."

[ENDS]

For further information contact the Commissioner's Media Team on 01334 464610, out of hours on 07976 511752, or email media@itspublicknowledge.info

Notes to Editors

About the Research

  • The research report 'Volunteering Information? The use of Freedom of Information laws by the Third Sector in Scotland', was published as part of a three-year research study to explore the extent to which campaign groups and voluntary organisations in Scotland and the UK are making use of the FOI legislation.
  • The full research study, entitled 'Public Communication, Democracy and Citizenship: Assessing Civil Society Uptake of Freedom of Information' is due to be published in 2011. The research report published today brings together the first-phase quantitative findings from this study.
  • The research is funded by the Economic and Social Research Council (ESRC), and is supported by the Scottish Information Commissioner. It is being undertaken by Kate Spence, a doctoral researcher from the University of Strathclyde.
  • The research was launched in 2008 following evidence to suggest that the FOI 'right to information' might not be being used to its full potential by Scotland's voluntary and campaign organisations, with only 4% of the appeals received in 2007 by the Commissioner coming from the sector. This figure compared with 6% from the media, 7% from politicians, and 77% from the public.
  • The research report published today is available to download from the Scottish Information Commissioner's website .

About the Freedom of Information legislation

  • 1st January 2010 marks the 5th anniversary of Scotland's freedom of information legislation.
  • The Freedom of Information (Scotland) Act 2002 (which came into force on 1st January 2005) provides individuals and organisations with a right to receive the information held by over 10,000 public authorities in Scotland. The Act applies to the Scottish Parliament, the Scottish Government and the NHS in Scotland, as well as all of Scotland's police forces, local authorities and universities.
  • Under FOI any written request for information must be responded to within 20 working days. Information can only be withheld where the FOI Act expressly permits it. Information can be withheld, for example, where its release would breach someone's right to privacy under data protection legislation, or where it would harm national security or an organisation's commercial interests. Even where an exemption applies, however, in many cases the Act also says that information must be released if it is in the public interest to do so.
  • There is a three-step process to requesting information. This works as follows:

    • Step 1 ? the request stage ? an individual writes to an authority to request information. In most cases, the information will be provided first-time, and there will be no need to move on to the later stages. Where information is refused, however, the FOI Act requires that the authority inform the requester of his/her right to appeal the decision.
    • Step 2 ? the review stage ? the first stage of this right of appeal is to write to the authority asking it to review its handling of the original request. The authority has a further 20 working days to reconsider the request and respond. If it continues to withhold the information, it must notify the requester of his / her right to appeal to the Scottish Information Commissioner
    • Step 3 ? the application stage ? an individual can appeal to the Scottish Information Commissioner. On receipt of an appeal application, the Commissioner will conduct a full investigation into the public authority's handling of the request. If he finds that the authority has withheld information incorrectly, he can force the authority to release it.
  • The Scottish Government is currently considering extending the FOI Act to cover additional bodies. It announced on 8th December 2009 that it plans to consult on the extension of FOI to cover PFI / PPP contractors, trusts that provide cultural and leisure services and bodies such as the Association of Chief Police Officer in Scotland (ACPOS), the Glasgow Housing Association and privately-run prisons. The Commissioner has welcomed the announcement, arguing that the practice of handing the delivery of public services to third party organisations not covered by FOI is eroding the public's right to information. For more information click here.

About the Scottish Information Commissioner

  • Kevin Dunion was appointed as the first Scottish Information Commissioner in February 2003.In February 2008 he was reappointed for a second, and final term, for four years until 2012.
  • Kevin previously worked with Oxfam Scotland as Campaign Manager, and was Chief Executive of Friends of the Earth Scotland. From 1996 to 2000 he also served as Chairman of Friends of the Earth International. Prior to his appointment as Scottish Information Commissioner he was for many years a prominent campaigner for freedom of information, establishing two research projects into the performance of public bodies in Scotland with regards to providing access to information, and giving evidence to the Justice Committee as it scrutinised the passage of the FOI Bill through the Scottish Parliament.

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