News and Commentary from the Scottish Information Commissioner

     News and commentary from the Scottish Information Commissioner
January 2015

 
Commissioner's Commentary
    Photo of Rosemary Agnew

1st January 2015 is a momentous date for Scotland as it marks the 10th anniversary of the Freedom of Information (Scotland) Act 2002 coming into force. For the first time, the public had enforceable rights for access to information about Scottish public authorities. From 1st January 2005, we had a right to ask and Scottish public authorities had a duty to tell: both in response to information requests and through proactive publication under publication schemes.

The 10 year anniversary is a timely opportunity to reflect on how FOI is working for us, and how it could develop.

In my view, FOI has, on the whole, been a success story for Scotland. Thanks to the efforts of Scottish public authorities uploading and sharing their data, we know that over 60,000 requests were made last year alone, and recent research revealed that 95% of the public believe that the right of access to the information held by public bodies is important. FOI changed expectations in relation to information, and how it is created, used, accessed and shared.

Since the Act was passed in 2002, YouTube, Flickr, Facebook, Twitter and Dropbox have all come into existence. They illustrate a key point that expectations about how we access and share information, and in what timescale, have changed beyond recognition since the Act was drafted. We share more information, we look for it differently and we expect more on demand.

We expect information quicker, often instantaneously on demand. That is why failing to respond to requests in good time, or at all, or not making information available can lead to suspicion and undermining of public trust. We should make information available in the way people need, want and use it.

While access to information has become embedded in our expectations, and public awareness of and support for FOI has risen over the past decade, FOI is falling behind in relation to ensuring the right organisations are covered.

This is not a new issue. There is a history of discussion on the topic, starting in the Parliamentary discussions immediately following the passing of the FOI Bill in 2002, through to the making of the very first order under Section 5 of the FOI Act in 2013. That Order designated culture and leisure trusts set up by local authorities as being covered by the FOI Act.

The fact is, rights to information have been lost since the FOI Act came into force. For example, since 2005, over 15,000 Scottish households have lost FOI rights following the transfer of local authority housing stock to housing associations. Right now, the Scottish Parliament's Public Petitions Committee is considering a call for FOI rights to apply to all housing associations. Remember, a loss of rights under the FOI Act is not just a loss for an individual, it is also a loss to society and diminishes the extent to which organisations making decisions on our behalf are accountable.

As models for public service delivery are changing, we have to ask, are information rights keeping up with that change? This is not simply a matter of Section 5 designation, which has been woefully underused, it is also about understanding the complexity of access to information and making access on demand the norm, with time-bound rights the backstop.

We are exacerbating the problem if we don't act now. That is why, last week, I laid a Special Report before the Scottish Parliament: "FOI 10 years on: are the right organisations covered?". It considers in detail the issues of why it is important the right organisation are covered, what my concerns about designation under Section 5 are, what the public thinks about the extension of FOI, why Section 5 has not been used more, and whether there is a better approach to Section 5 designation.

In my report, I recommend:

  • adopting a policy to ensure FOI rights are migrated whenever a body delivering public functions or services changes
  • carrying out a review to identify where FOI rights have been lost over the past decade, and reinstate them
  • taking steps to ensure that FOI rights apply to those bodies responsible for social housing and private prisons and
  • adopting a factor based approach to wider FOI designation, to ensure that FOI rights apply to bodies which are considered to be delivering functions of a public nature.

The Special Report is available at www.itspublicknowledge.info/reports.

The purpose of laying the Special Report is to get people talking and encourage action, so please let us know what you think at enquiries@itspublicknowledge.info.

Here's to the next 10 years (and many, many more)!

Rosemary Agnew's signature

Rosemary Agnew
Scottish Information Commissioner

 
New Section 60 Code of Practice
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In December, the Scottish Government published a fully revised and updated Section 60 Code of Practice. This statutory guidance is essential reading, as it helps authorities interpret the FOI Act and the EIRs, and promotes good practice. It is also taken into account by the Commissioner when considering applications and FOI performance. From our experience, authorities who apply the Code are more likely to get requests right first time and reduce the potential costs of reviews and appeals. For example, the Procurement section gives invaluable advice about managing contracts and tenders to make it easier to respond to requests for commercial information.

The Commissioner contributed extensively to the review and development of the revised Code, which includes helpful new guidance on:

  • requests made via social media
  • corporate responsibility for FOI compliance
  • proactive publication
  • reviews and appeals.
 
Compliance, good practice and lessons learned
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Our Decisions Round-up provides a weekly summary of the decisions published by the Commissioner that week, along with details of the key learning points for requesters or authorities from those decisions. From next month, round-ups will also look at the cases we've resolved informally and at what authorities can learn from these cases. You can sign up to receive the round-up at www.itspublicknowledge.info/signup.

Explain where you're coming from

Recently, a common thread in the round-up has been the need to provide explanations in correspondence: whether you are the requester or the public authority.

For public authorities, giving fuller explanations helps requesters to understand why you are responding to requests in a particular way. They also ensure that you meet your duty to give advice and assistance. In practice, it might mean, e.g., explaining why you don't hold requested information. This can make a difference by leaving a requester content with your response, even if they are unhappy that you cannot provide information. It is then less likely they will make an application to the Commissioner.

Where a request is set out in parts, it is important to fully explain your response to each part of the request. In Decision 247/2015, the authority's response focussed on one part of the request, which gave the requester the impression that the authority had only dealt with that part. In fact, the authority had considered all parts of the request, but because this was not explained in the response, the requester made an application to the Commissioner.

It's also worth bearing in mind that when handling requests under the EIRs which you think are "formulated in too general a manner", as in Decision 261/2014, you cannot apply that exception unless you've asked the requester for more particulars and have assisted them to do that.

For requesters, it means making sure your request adequately describes the information you are looking for (otherwise your request will be invalid). If you need help doing this, you can ask the authority for assistance. When requesting a review, you should also make sure your reasons why you are unhappy with the authority's response to your request are set out clearly. The issue of whether or not requests adequately described the requested information was considered in Decision 255/2014 and Decision 254/2014. Tips for making requests can be found at www.itspublicknowledge.info/tipsforrequesters.

Other noteworthy decisions

Other decisions issued in recent weeks which may be of interest include Decision 252/2014, which found that even where information has been provided by one authority, it may still be reasonable for another authority to withhold the same information.

Decision 001/2015 and Decision 003/2015 show the importance of taking care when reading and interpreting requests. In Decision 003/2015, we found it should have been clear to the authority that the requester was making an information request for environmental information. In Decision 001/2015 the authority failed to properly interpret the request, resulting in the provision of the wrong information.

 
Our work at a glance
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Month

Enquiries

New
Applications

Total
number of
valid cases
closed

Cases closed
with a decision
notice

Settled /
withdrawn during
investigation

Apr

143

49

23

16

7

May

204

40

32

24

8

Jun

140

42

37

26

11

Jul

125

49

37

28

9

Aug

163

35

29

18

11

Sep

133

36

34

23

11

Oct

140

42

24

19

5

Nov

145

33

31

24

7

Dec

79

38

19

14

5

Year to Date

  1,272

     

364

      
        

266

   
          

192

 
           74

It is hard to believe but another quarter has been and gone. October to December (Quarter 3) was the quietest Quarter 3 for three years, in terms of applications received. It is also the quietest year to date since 2010/11. The reasons for the fall in numbers are not entirely clear, but we think that one of the contributory factors was the Referendum.

We continue to meet most of our targets for case closure times but are keeping our eye on the 'cases closed within four months' indicator.

Quarter 3 saw a sustained fall, for the first time this year, in applications about failure to respond (FTR). Overall the proportion of valid applications about FTR, at 28%, is higher than this point last year when it stood at 22% but compared to the position at the end of June, when it peaked at 35%, the direction of travel is encouraging.

 For more information about our operational performance click here.

 
News in Brief
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Self-Assessment Toolkit: Capture, Assess, Improve

Searching for, locating and retrieving information, the second in our series of self-assessment modules went live on 23 January. Module 2 helps authorities examine and assess their ability to carry out complete, reliable, thorough and proportionate searches to identify and locate the information they hold.

We're working on the third module, Advice and Assistance, to be published in March.

For more information about the toolkit, including access to the modules and guidance on using it, please visit our .

We are always pleased to hear about your experiences of using the toolkit, and any suggestions or comments you may have to develop the tools.

For more information, support or advice, contact the Policy and Information Team on 01334 464610.

 


 

10th Anniversary Holyrood Conference

The 2014 Holyrood Conference on 11 December celebrated the 10th anniversary of FOI in Scotland. Speakers, including Lord Jim Wallace of Tankerness, Joe Fitzpatrick MSP and Rosemary Agnew, reflected on the experience of FOI in Scotland over its first ten years and speculated on the future of FOI.

Lord Wallace, who introduced the FOI Bill to the Scottish Parliament while Deputy First Minister, spoke of his disappointment that more had not been done to ensure that FOI kept pace with changes in public services, while Joe Fitzpatrick, the Minister for Parliamentary Business, who has responsibility for FOI, announced plans to consult in the Spring on new bodies to be brought within scope of FOI. The day also featured a panel discussion with lively contributions from requesters, journalists and public authority staff, exploring the benefits that FOI had brought to Scotland.

 


BBC celebrates 10 years of FOI

BBC Scotland filmed a piece at the Holyrood Conference to mark the 10th anniversary of FOI. The item features contributions from Rosemary Agnew, Lord Wallace of Tankerness, Joe Fitzpatrick MSP and the Scottish Rural Schools Network. View the BBC Scotland piece here.


Public awareness of FOI

We commissioned an Ipsos MORI telephone poll in October last year, to ask the public about their views on FOI. The results are available on our research webpages.

They show that public awareness of, and support for, FOI is at its highest recorded level, and that the public disagree more strongly than ever before with the statement "FOI is a waste of public money". We also asked the public for the first time for their views on how important particular factors were when the Scottish Government was considering whether bodies should be subject to FOI law.


Scottish Borders Roadshow

The fifth Regional Roadshow will be held in the Scottish Borders on 20 March 2015. The day will feature a free programme of FOI training, awareness-raising and discussion for public authority staff across the region, with content delivered by Rosemary Agnew and her staff, and other invited guests. The day will include sessions on appeal-proofing your FOI, responding to challenging requests, and working with FOI requests for personal information. Alongside the public authority sessions, we also plan to discuss FOI with local voluntary organisations, the local media, chief executives and MSPs.

For further information on the Roadshow, or if you'd like to take part, contact Paul Mutch at pmutch@itspublicknowledge.info.

 


Revised exemption briefings

We're currently in the process of revising our FOI exemption briefings and will be publishing the first of the revised briefings (for Sections 25 to 29) in February. Briefings for Sections 30 to 34 are due in March. Other updates will follow later in the year.

 


New Section 4 Order

A new statutory order under Section 4 of the FOI Act will come into force on 1 April 2015. The Order removes some bodies from Schedule 1 of the FOI Act, and adds integration joint boards, the James Hutton Institute, and the Moredun Research Institute to the list. The Order also removes text from Schedule 1. Removing the text means all of the functions of the Commissioner for Ethical Standards in Public Life in Scotland are now covered.

 


Public Petition to extend FOI to Housing Associations

The Commissioner has made a submission to the Scottish Parliament's Public Petitions Committee about a petition which calls for all housing associations to be made subject to the FOI Act. Read the submissions here.

 

 
Don't forget...
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Publication schemes for bodies listed in Part 7 of Schedule 1 to the FOI Act, and all publicly-owned companies are due to be renewed this year. The Commissioner's approval for their current scheme expires on 31 May 2015.

Click here to see the Model Publication Scheme for 2015, and guidance on adopting it.
 
Contact us
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The Commissioner's staff are pleased to provide information, support and advice on any issue relating to freedom of information. We also welcome your feedback, including about our website and Inform newsletter. Contact us at:

Scottish Information Commissioner, Kinburn Castle, Doubledykes Rd, St Andrews, KY16 9DS

Website: www.itspublicknowledge.info

Telephone: 01334 464610

Email: enquiries@itspublicknowledge.info

Fax: 01334 464611

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