News and Commentary from the Scottish Information Commissioner

News and commentary from the Scottish Information Commissioner

January to February 2011

 
Looking back ... 2010 was an eventful year
Kevin Dunion

On 8 March 2011, I published my Annual Report 2010. This is my eighth report, and as in previous years, I take this opportunity to reflect on the past year and look to what lies before us.

Image of Annual Report 2010 Front Cover

  Click to view the Annual Report 2010 online

Increase in decisions and enquiries

I issued 50% more decisions than in 2009, including some relating to high profile cases such as the Shirley McKie fingerprint affair, the Edinburgh Trams scheme, and the release of Lockerbie bomber Al-Megrahi on compassionate grounds.  July also saw the issue of my 1000th decision since the Act came into force in 2005.

There are signs that FOI is maturing in Scotland.  In spite of an increase in enquiries to my office, the number of appeals I received remained steady.  I saw a change in the balance of outcomes - increasingly the outcome of my decisions neither wholly favour the applicant nor the authority - in 2010, 41% were partially upheld (compared to 33% in 2009).  What this suggests to me is that authorities are improving how they handle requests, and requesters are increasingly aware of how to make use of their rights.


The 'valid request' issue

Early in 2010, I was concerned that some public authorities were taking a restrictive view of FOI, refusing to comply with requests for 'copies of documents' - a position I believe to be at odds with the principles and requirements of the Act.  However I'm glad to report that my subsequent decisions, finding such requests to be valid, have not been challenged.


Designation still awaited

The Scottish Government took a decision, early in 2011, not to extend the scope of the Act to cover more bodies delivering public services, including PPP/PFI contracts, private prisons, the Association of Chief Police Officers in Scotland, leisure trusts and the Glasgow Housing Association.  The fact that Ministers' powers to designate additional bodies have remained unused is disappointing, as it is contrary to assurances given in Parliament when the Act was passed 9 years ago.  I had recommended that designation be made to prevent further loss of FOI rights which should 'follow the public pound', in order that Scotland is not left behind as the rest of the UK pushes forward with its transparency agenda.

 
... and looking forward
Enforcement arrow

Public authority challenge - more requests vs fewer resources

I undertook an online survey in February 2011, looking at Scottish public authorities' experience of FOI.  87% of respondents reported an increase in their organisational knowledge of FOI, and 48% said their authority was more inclined towards disclosure - and only 2% less inclined.  The survey also found that, while requests themselves were become more sophisticated and complex, processing them was becoming easier for many authorities - and especially for those whose knowledge of FOI has grown significantly over the past 5 years.

There is evidence that public sector cuts are prompting people to make more use of their FOI rights, as they seek to understand how scarce public money is spent, at a time when capacity to respond may be stretched.  In our recent survey, 41% of respondents said the greatest challenge they faced was a reduction in resources, and 24% pointed to an increase in request volumes - indeed three quarters of those who responded reported an increase in request volumes over the last year.

 To see more results, see the news release for the Annual Report launch.

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The Commissioner at the Annual Report 2010 launch


FOI Amendment Bill

The Scottish government is introducing an FOI Amendment Bill to remedy some deficiencies in the Act e.g. the restricted timescale for prosecuting the offence of altering or destroying records to prevent disclosure. Other planned changes include reducing the period after which a record becomes a historical record to 15 years.  I will contribute to the consultation, but am mindful that, if the Bill becomes a complete overhaul of the Act, necessary changes will be delayed and less beneficial measures may be proposed.


Efficient compliance

I will undertake initiatives to reduce the burden of FOI compliance and speed up investigations.  Changes to our investigation procedures have also been implemented, as I reported in the last Inform.  My decisions will, in most cases, be taken on the basis of the initial submission from an authority, so authorities are expected to make a full case at the first time of asking.  This will reduce the time taken for investigations, and get information to requesters more quickly, where their appeal is upheld.  A single model publication scheme is also being piloted, capable of being adopted by all authorities, which sets high common standards for the proactive publication of information.


The Centre for Freedom of Information

The Centre for Freedom of Information has proven a valuable forum for deliberation of FOI law in practice, and new developments this year will include academic courses aimed at FOI practitioners.  And finally, later in 2011 my handbook for FOI in Scotland will be published by Dundee University Press.

 
At a Glance - March 2010 to February 2011

Graph showing enquiries March 2010 to February 2011Graph showing new applications March 2010 to February 2011

 

Graphshowing number of cases closed March 2010 to February 2011Graph showing Decisions issued March 2010 to February 2011

 
Key decisions/Practice assessments
Your Right to Know Booklet cover

Remuneration cases

Several decisions in early 2011 considered whether information relating to public authority staff remuneration should be disclosed.  In each case information was withheld under section 38(1)(b) of the Act, which applies to third parties' personal data, where disclosure would breach any of the data protection principles in the Data Protection Act 1998 (DPA). This involves the complex interface between FOI (facilitates public access to information) and the DPA (protects the privacy of individuals).

Decision 033/2011 Mr Paul Hutcheon of the Sunday Herald and the Scottish Ministers considered whether the value of bonuses paid over several years to the former Permanent Secretary should be disclosed. The Commissioner concluded that disclosure would not breach the first data protection principle. The Permanent Secretary is the most senior civil servant in Scotland, and there was a significant legitimate interest in understanding the remuneration of the post holder to allow consideration of whether this was an appropriate use of resources, and comparison with senior staff elsewhere. The Commissioner recognised that disclosure would intrude into the private life of the Permanent Secretary, but concluded that this did not outweigh the legitimate interest in disclosure.

Decision 011/2011 Mr Peter Cherbi and the Scottish Legal Complaints Commission (SLCC) considered a request for fees and expenses paid to SLCC Board members.  The SLCC provided totals, but applied exemptions to the forms setting out the detail of the payments. The Commissioner accepted that Mr Cherbi had a legitimate interest in expenses claimed and money paid to SLCC Board members.  He noted that fees paid to SLCC Board members were not equivalent to a salary, since they would not necessarily disclose a person's total annual income.  The Commissioner accepted that disclosure of information identifying Board members' homes would breach the first data protection principle, but with respect to the remaining information he concluded that it was not exempt.

Decision 031/2011 Mr Ian Scott and the Scottish Prison Service considered requests relating to recruitment and retention allowances (RRA) paid by the Scottish Prison Service.  RRA is an additional payment for staff occupying posts which require specific knowledge and skills, or where the pay band does not match the local job market rate for such qualities.  Mr Scott, a union representative, wanted to assess whether the allocation of this allowance was fair.  Withheld information included the value of monthly payments, identification of the posts and the post-holders to which RRA was awarded, and the business cases justifying the award of RRA.  The recipients of RRA are generally below senior management level, and the Commissioner concluded that disclosure of names of recipients was not necessary for Mr Scott's legitimate interests.  However, he accepted that there was a legitimate interest in understanding how RRA was distributed and the reasons behind its award, to allow assessment of fairness.  The Commissioner concluded that disclosure of most of the information would not breach the first data protection principle.

Practice Assessment: Greater Glasgow & Clyde Health Board

The Commissioner recently undertook a practice assessment at NHS Greater Glasgow & Clyde (NHSGGC).  It demonstrated that NHSGGC has embraced FOI and developed a culture of openness, supported by senior management. Several areas of good practice were identified.

For example, the staff intranet has been developed as a training and reference tool, and an interactive e-learning pack is being developed for staff induction and general use.  NHSGGC has a network of FOI specialists based in all of its main service areas.  They are supported by corporate specialists, with groups of officers meeting regularly to discuss key issues. The assessors were impressed with the level of performance monitoring and review which was carried out on a regular basis.

NHSGGC strives continually to evaluate and improve its policies, procedures and practices, ensuring that it responds to requests for information in a positive and efficient manner.  Given its size and complex structure, the Commissioner commends NHSGGC for its attitude, commitment and practice in relation to FOI. A report on the assessment, is being finalised.

 
Commissioner's news in brief
Pile of Newspapers

Single Model Publication Scheme launched

The Commissioner published a new pilot Single Model Publication Scheme on 11 February 2011.  The single model can be adopted by any public authority in Schedule 1 Part 7 of the Act (see ), and publicly-owned companies, whose current schemes expire in May 2011.  It was developed following the recent consultation on a new approach to publication schemes, and it benefits authorities by providing a simple, common framework based on shared learning.  Adopting bodies will simply have to notify the Commissioner they are adopting the model and advise him where to find their guide to information - a document which sets out what information that authority published under each class, where to find it and whether any charges apply.  It is anticipated that scheme users will benefit from the common framework that the model represents.  The pilot will be evaluated during 2011, and lessons learned for future years.  The Commissioner had already adopted the model himself, and his guide to information is available on his website.


The Commissioner online

The Commissioner undertook a programme of qualitative research in November 2010, looking at how his website was performing and what improvements could be made to his online presence, to meet the needs of public authorities and the general public alike. Two focus groups provided insight into their experience of the site and suggestions, which are now being implemented.  Overall, the Commissioner's website is working well for public authorities, but members of the public can find it confusing and difficult to navigate.  A research report will be published shortly.  March will see changes to the home page and a complete overhaul of the 'your rights' part of the website to provide simpler, more accessible content for members of the public.


Forthcoming Roadshow in Dumfries and Galloway

Following the success of the first 'FOI' roadshow' in Inverness in December, the Commissioner's team are planning to be out on the road again in the spring.  This time, the Commissioner's staff plan to visit Dumfries and Galloway, to run a series of workshops, training sessions and one-to-one surgeries for local people, voluntary organisations and journalists.  We hope that by bringing FOI to people, we can encourage them to be confident about using their rights to information effectively.  More details of the dates and times will follow.


Meet the Campaign for Freedom of Information

The Campaign for Freedom of Information is also running a half day course for requesters in Glasgow on Saturday 4 June 2011.  The course will provide an introduction to the legislation, covering the The Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004.  The course will cover what you can ask for, how to make an effective request, and how the Act's exemptions work.  The course is being delivered by members of the Campaign in Scotland, and places cost ?20 for individuals, freelance journalist and small NGOs, and ?45 for public authorities and others. 

See more information by downloading a flyer: http://www.cfoi.org.uk/pdf/foisacourse4june11.pdf. To book a place, contact Derek Manson-Smith on dms@ircuk.demon.co.uk

 
FOI news
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In Scotland

  • Following their consultation in 2010, Scottish Ministers announced that they were not taking forward plans to designate new bodies under the Scottish FOI Act, on 26 January 2011.  In the same announcement, Ministers set out plans for a Scottish FOI Amendment Bill to be published in the spring.
  • The Public Records (Scotland) Bill passed Stage 3 on 16 March 2011, and now goes on to receive Royal Assent. Read a parliamentary briefing on the Bill.

Across the UK

  • The Protection of Freedoms Bill was published on 11 February 2011. Amongst other things, the Bill includes provisions to require UK public authorities to make information available in a re-usable electronic format under the Freedom of Information Act 2000 (FOIA).
  • On 7 January 2011, the Ministry of Justice announced plans to extend the scope of FOIA to the Association of Chief Police Officers, the Financial Services Ombudsman, and the higher education admissions body UCAS. They will also consult on extending FOIA to e.g. Examination Boards, Harbour Authorities and the Local Government Association.
  • Changes made to the Freedom of Information Act regarding communications with the Royal Family came into force on 19 January. The amendment was introduced by the Constitutional Reform and Governance Act 2010. Information relating to certain communications is now covered by an absolute, rather than a qualified exemption.

Around the world

  • The Nigerian Senate passed the Freedom of Information Bill on 17 March 2011.
  • George Washington University published its latest 'Knight Open Government Survey' during USA's Sunshine Week (14 to 18 March). The survey reports on the FOI performance of US Federal agencies.
  • Also to mark Sunshine Week,President Obama launched FOIA.gov, a new website to help the general public request US government information.
  • US-based Carter Center is to open a local office in Liberia, to help promote government transparency in that country.
 
Contact us
Group photo of Commissioner's staff in 2010 standing on staircase.
My 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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