News and Commentary from the Scottish Information Commissioner

News and commentary from the Scottish Information Commissioner

April 2012 

 
In this issue Acting Scottish Information Commissioner Margaret Keyse reflects on the achievements of our 2011/12 Operational Plan, and looks forward to the arrival of new Commissioner Rosemary Agnew.  We also provide an overview of recent cases involving requests for audit reports, and introduce some forthcoming FOI events.
Margaret Keyse Photograph

Welcome to my first - and only - Inform commentary as Acting Scottish Information Commissioner. Many of you will know me as the Head of Enforcement here at the Scottish Information Commissioner but, following Kevin Dunion's departure on 23 February, I have also been fulfilling the role of Acting Commissioner, and will continue to do so until we welcome our new Commissioner, Rosemary Agnew, on 1 May.

It has been a unique opportunity working with Kevin on the implementation and development of freedom of information in Scotland over the last few years. We are equally looking forward to supporting Rosemary as we address the opportunities and challenges for FOI in the future. FOI in Scotland has been a real success, and we continue to be impressed by the way in which both the public and public authorities have embraced the FOI right. I am confident that this positive approach in Scotland will continue into the future.

It has also been an interesting time to serve as Acting Commissioner, overseeing the final stages of our 2011/12 Operational Plan. The last year has been a particularly busy one for our office, with an increase in applications, alongside a challenging programme of assessments, activities and events.

Key outcomes from the conclusion of our 2011/2012 Operational Plan include:

Case Closures - Length of Investigations
Despite the number of applications being significantly higher than our projected levels (with 114 more applications than projected being received), our target to reduce the length of our investigations has not just been met, but exceeded. During 2011/12, the average age of the cases we closed was 15.9 weeks, against a target of 20 weeks, meaning that more and more applicants are having their FOI appeals resolved sooner.

Compliance
We published , intended for adoption by central government bodies in the coming weeks. The Model Publication Scheme, which aims to support a consistent approach to the publication of information across the public sector, has been a great success, with all the central government bodies due for renewal in 2012 having informed us that they plan to adopt the model.

We also carried out eleven of our twelve planned  for the year, having taken the decision in October not to proceed with one assessment during the 2011/12 financial year.

In addition, we have contributed to the Scottish Government consultation on the Freedom of Information (Scotland) Amendment Bill, which proposes, amongst other things, to extend the period in which a prosecution can be brought for the offence of altering, concealing or destroying records to prevent disclosure. Our response to the Government's consultation is available. Our response to the Government's consultation is available here.

Awareness
We have continued to promote better awareness and the effective use of FOI. During 2011/12, this work included the development of new resources and awareness events for MSPs and their staff, the successful establishment of a programme of regional roadshows for the voluntary sector, and the implementation of measures to enhance the accessibility of the Commissioner's website for all those who might wish to exercise their FOI rights.

Practice
New guidance on key concepts in FOI law on key concepts in FOI law was made available through the publication of guidance on charging under the Environmental Information (Scotland) Regulations, and the validity of FOI requests made using social media. We also supported the development and publication of a major new guide to FOI - Kevin Dunion's Freedom of Information in Scotland in Practice.

Additional guidance for authorities on the effective handling of FOI requests is in the final stages of preparation, and will be published shortly.

Development
We worked with our partners at Dundee Law School to develop and deliver a successful series of seminars through the Centre for Freedom of Information. 2011/12 seminars covered a range of issues, including Current Developments in FOI, a comparative analysis of FOI Appeal Routes, and consideration of the outgoing Commissioner's Special Report to the Scottish Parliament.

See our news in brief section below for details of a forthcoming Centre for FOI seminar examining possible changes to FOI laws, both north and south of the border.

Organisational Management
Alongside this, we have successfully procured and installed a new Case Management System, designed to manage the full range of our enquiry, application, practice assessment and publication scheme work. This new system went live on 2 April 2012, and will help us to further improve our efficiency as an organisation.

A busy twelve months then, but one in which the organisation has achieved a number of significant successes.

Having overseen the conclusion of our 2011/12 Operational Plan, I am now looking forward to returning to my "day job" as Head of Enforcement, working alongside the new Commissioner to finalise our objectives for 2012/13 and beyond, helping to develop the strategy which will take our office, and FOI, forward into its next phase.

 

Margaret Keyse
Acting Scottish Information Commissioner

 
At a glance - April 2011 to March 2012

Inform Charts April 2011 - March 2012
The above charts relate to the work of the Commissioner's office, from April 2011 to March 2012. 
 
Key decisions issued
Files flying out of a cabinet

Audit Report Requests

A number of recent decisions have concerned internal audit reports. These are valuable documents, in which an organisation's systems and processes are evaluated and tested, and strengths and weaknesses are identified for the purpose of learning and improvement. The process is, by its nature, a critical one, intended primarily for an internal audience. Disclosure of the reports can, however, contribute to a better understanding of an organisation's effectiveness, its use of public resources, and the efforts made to learn from experience and improve.

In Decisions 050/2012, 067/2012 and 076/2012 Mr Tom Gordon of the Sunday Herald and the Scottish Ministers, the Commissioner considered three of six requests for a total of 81 internal audit reports that were made by Mr Gordon (a further three cases remain under consideration).

The Scottish Ministers refused to disclose any of the 81 reports, on the basis that disclosure of any of the information therein would undermine the effectiveness of the internal audit process, and so the effective conduct of public affairs.

The Commissioner was unable to accept the very general arguments made by the Ministers, which suggested that internal audit reports should be treated as a class of information, for which disclosure would always be harmful, irrespective of the actual contents of the reports. In line with a previous Court of Session judgement, the Commissioner concluded that the actual content of each report had to be considered on its merits. Having done so, she accepted that certain content of four reports (of the 33 considered across the two decisions) had been correctly withheld. She required disclosure of all other parts of the reports.

The Commissioner commented critically on the Ministers' approach to these requests, noting that it was incompatible with decisions of both the Commissioner and the Court of Session, and also with the Ministers' own guidance on request handling. This makes clear that internal audit reports need to be considered individually to establish whether any parts are exempt from disclosure.

In a case that contrasts significantly with these, the Commissioner was able to uphold Clackmannanshire Council's rather different approach to a request for an internal audit report in Decision 056/2012 Mr John Waites and Clackmannanshire Council. In that case, an internal audit report concerning a tendering process in which mistakes had been made was released during the investigation, except for a single sentence. The Council provided a detailed explanation as to why disclosure of that particular information would be harmful in the context of an ongoing court case. The Commissioner was able to accept that disclosure would be harmful to the Council's position in that case, and so would be likely to prejudice the effective conduct of public affairs.

As these cases together demonstrate, the Commissioner is well aware that internal audit reports might contain sensitive information that could be exempt from disclosure for a range of reasons. However, she strongly recommends that authorities consider such reports based on the actual content of the information rather than simply on the category of document.

 
Practice assessment update
Practice Assessment Image

Since the last issue of Inform, the Commissioner's Assessment Team have carried out assessments of the University of the Highlands and Islands and South Lanarkshire Council. April also saw us issue the final report and action plan for the Commissioner's second desktop assessment - of  in November last year.

April also saw us successfully close our assessment of Argyll and Bute Council, which originally began in September 2010. Following the assessment, a number of areas of concern were identified. These included:

  • the systems in place to log, track and monitor requests
  • the processes and practices used to facilitate adequate record keeping and records management (which impact on the Council's ability to search for information)
  • staff training
  • the value of the Council's documented FOI policies and procedures.

The assessors made a total of 18 recommendations for the Council to address and the Council responded with an action plan. In updating the Commissioner on its progress in implementing the action plan, the Council provided a comprehensive overview of the actions it had taken in relation to each recommendation.

Following a period of three months additional monitoring - which came to an end in April - the Commissioner was pleased to note that the Council had successfully addressed all the recommendations in the assessment report. In closing the assessment, the Commissioner noted that the Council had implemented a number of changes to its FOI processes and procedures since the assessment took place, with a positive impact overall on the Council's handling of requests for information.

 
News in brief
Pile of Newspapers

Centre for FOI Seminar
The Centre for FOI will explore the plans and proposals north and south of the border to amend the UK's FOI law, in a new seminar in Dundee on Wednesday 30 May. The seminar, FOI - Time to Change?, will examine both the current post-legislative review of FOI in Westminster, and the Scottish Government's FOI Amendment Bill and new transparency agenda. Speakers will include:

  • Dr Ben Worthy, Research Associate, The Constitution Unit - who will review the progress of FOI in the UK.
  • Ibrahim Hasan, Director of Act Now Training and member of the Save FOI campaign - who will set out the key issues emerging from the post-legislative review.
  • Christine O'Neill, Partner, Brodies LLP - who will give her view on the potential outcome of the Scottish Amendment Bill, and what a transparency agenda in Scotland might look like.

For more information, or to book a place, visit www.centreforfoi.org.uk.

Website Accessibility
In March 2011, the Commissioner's website underwent an accessibility audit, to identify any actions required to ensure the site is compliant with the Web Consortium Accessibility Guidelines.

Over the past year we have implemented a number of measures to ensure we comply with the guidelines, including providing transcripts for video and audio content, improving labels for images, and introducing an accessible version of our decisions database which can now be downloaded as a spreadsheet.

Accessibility can always be improved, and we will continue to look for ways to make our site as accessible and easy to use as possible. Feedback on the accessibility of our website, or on any other issue, is always welcome.

Workshops for the Voluntary Sector
On Monday 28 May the Scottish Information Commissioner will be working alongside the Information Commissioner's Office to deliver a day of workshops for voluntary sector organisations in Edinburgh, as part of our regional roadshow programme. The workshops, which are being organised in partnership with the Edinburgh Voluntary Organisations' Council (EVOC), will cover both FOI and data protection, and will aim to provide information and advice to participants on both the responsibilities that they have under data protection law, and the right to access information that FOI gives to both an organisation and its clients.

The EVOC "FOI and Data Protection Day" is a follow up to our successful Edinburgh roadshow in March, and our partnership event with the ICO at the 2012 SCVO Gathering.

For more information, or to book a place, visit the EVOC website at:

www.evoc.org.uk/course/making-freedom-of-information-work-for-you-free-workshop/

Court of Session rules on FOI appeal
The Court of Session issued its Opinion in the case of South Lanarkshire Council v Scottish Information Commissioner on 27 March 2012. The case concerned a request for the number of employees carrying out a specific role on specific points on the Council's pay structure. The Council refused to disclose the information on the basis that it was personal data and was exempt from release under section 38(1)(b) of the FOI Act. The Court dismissed the appeal, agreeing with the Commissioner that the requested information should be disclosed.

The ruling is available at: www.scotcourts.gov.uk/opinions/2012CSIH30.html.

 
FOI News
Image of globe

UK and Ireland

  • FOI Amendment Bill - Consultation Responses
    The Scottish Government has published the responses received in relation to its consultation on the proposed Freedom of Information (Amendment) (Scotland) Bill. The draft Bill proposes three key measures:

    • An extension to the time period in which a prosecution can be brought under section 65 of the FOI Act (i.e. in relation to the offence of altering, concealing or destroying records to prevent disclosure).
    • A reduction in the time period after which certain exemptions can no longer be applied.
    • The creation of an absolute exemption for information relating to communications with senior members of the Royal Family.

49 responses were received to the consultation. All responses, including the Commissioner's, are available at: www.scotland.gov.uk/Publications/2012/04/4515/0

  • Higher education FOI costs
    The JISC Information Network has published the results of a research project aiming to discover the true cost to a higher education institution of processing an FOI request. The study tracked requests received by seven institutions in Scotland and England during January. The results revealed that the average request cost universities ?99 to process and took an average of 5 hours 2 minutes to complete. The full results of the survey are available at: www.jiscinfonet.ac.uk/projects/foi

  • Higher education FOI resource launched
    JISC has also launched an FOI "Wiki" site, which draws together all FOI guidance which is prepared for, or aimed at, the higher education sector in the UK. JISC plan to use the site to review all available guidance, identify gaps, and work with partners to develop additional guidance. The Wiki is at https://foiguidance.pbworks.com.

  • Persistent complainants research published
    The Police Complaints Commissioner for Scotland has published research, conducted by the School of Forensic Mental Health, into the issue of unusually persistent complainants. The research aims to assist the development of training and management programmes to help resolve such complaints. The PCCS report is available here.

  • Tribunal rules on vexatious case
    The Information Tribunal has overturned a decision by the UK Information Commissioner's Office that a request for information was not vexatious. In its ruling, the Tribunal suggests that an approach which tests requests by checking whether particular criteria are fulfilled is not appropriate, and that all surrounding facts relating to the request should be looked at, including the previous actions of the requester.The Tribunal's vexatious ruling is available here.

Around the world

  • Open data census underway
    The international Open Knowledge Foundation has launched an Open Government Data Census which aims to monitor the current status of open data across the globe. The census aims to gather data from every country on 10 specific datasets - including election results, government budgets and national laws - in order to examine how open and accessible the information is. Any individual can go into the survey and complete a return for their own country. For more information visit: http://opengovernmentdata.org/census/

  • World's oldest FOI Law to remain unchanged
    The European FOI resource "Wobbing Europe" has reported that the world's oldest FOI law will not be replaced, following a review by Swedish parliamentarians. The 1766 law, the Swedish Freedom of the Press Act, provides that access to official documents is a constitutional right. The committee which took the decision not to replace the law raised concerns that new legislation might weaken existing rights. See: www.wobbing.eu/news/worlds-oldest-access-law-will-remain

  • Spain proposes new FOI law
    On 23 March, the Spanish Government published the draft text of a new FOI law for consultation. The legislation proposes the creation of a website to publish all public administration and ministry details, including salaries and contracts, plus a set of rules and a best practice code on access to information on public spending. For more information, along with responses to the draft law see: www.freedominfo.org/2012/03/spain-proposes-foi-law-ngo-identifies-faults/

 

 
Contact us
Contact Us Picture
The Commissioner's staff are on hand to provide information, support and advice on any issue relating to freedom of information. We would also be pleased to receive any feedback you may have on our website, or on Inform itself. Contact us at:

Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews
KY16 9DS

Telephone: 01334 464610

Website: www.itspublicknowledge.info

Email: enquiries@itspublicknowledge.info

Fax: 01334 464611

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