News and Commentary from the Scottish Information Commissioner

News & Commentary from the Scottish Information Commissioner

March/April 2010

 
In this edition of Inform, I introduce my 2009 Annual Report. I update readers on recent events including a Parliamentary reception and a seminar at the Centre for FOI. Approval of model publication schemes for the health sector for 2010 to 2014 is also featured and I comment on the practice assessments carried out by my office.
Kevin Dunion

My 2009 Annual Report celebrates the first five years of FOI rights in Scotland. So far as the past year is concerned however, I report that the volume of applications for decision has increased whilst at the same time my staff are undertaking the first general assessments of a wide range of individual authorities to establish the state of practice and compliance with their statutory obligations.

I am keen to explore additional, innovative ways to deliver the report to key audiences - the "public" and public authorities. So while formally I have laid a paper Annual Report before Parliament, I am marking the 5th anniversary of FOI by communicating, using a variety of media, the 'right to information' and the work of my office.

With this in mind, for the first time an enhanced version of my Annual Report is available as a fully interactive website at Annual Report 2009. It contains substantially more information than can be included in the formal report to Parliament, providing readers with additional details of the performance of my office and development of FOI in Scotland since 2005. By clicking on the online links each user can explore the aspects of FOI that are of most interest and relevance to them. The online report preserves the statistical charts introduced in earlier annual reports, but provides new options for navigating the data. The public can easily see, for example, how their local council, local police force or NHS Board is performing in terms of FOISA and can compare this to the experience in other regions of Scotland. With only a few clicks of a mouse, they can access relevant decisions, find the text of Scotland's FOI Act or access one of my briefings.

From the report anyone can analyse how my office is performing. We see that the number of applications received in 2009 was 421, bringing the overall total over 5 years to 2,362 applications. (Members of the public are still the main users of Scotland's FOI legislation: the majority of applications to my office were from members of the public with 73% in 2009, and 69% across 2005-2008. We also see the average age of cases closed is continuing to decline in 2009: 5.3 months, down from 6.7 months the previous year. Since Scotland's FOI Act was passed I have issued almost 1000 decisions. The proportion of decisions finding in favour of applicants in 2009 was 33%, compared to 24% for 2005-2008. 34% of decisions found in favour of the authority (compared to 42% for 2005-2008), while 33% were partially upheld.

There is much in the report which will be of interest to public authorities too. We know that authorities are always keen to read the statistical tables and to compare their own performance in complying with FOI with that of other authorities. As in previous years, the 2009 Annual Report features several important case studies which show what people are asking for when using Scotland's FOI Act, the response from public authorities and how requesters are using the information they receive. The case studies may also be of interest to community groups, the voluntary sector, trade unions and campaigners. The website format of the report allows readers to drill down to find information that is relevant to them and perhaps a case study that highlights a subject similar to their concerns. There are also links to current FOI research. For example the most recent poll of public awareness, the research into the use of FOI rights by civil society groups being conducted by the University of Strathclyde and details of my collaboration with the University of Dundee Law School in the Centre for FOI.

Editions of Inform always state that my staff are on hand to provide information, support and advice on any issue relating to FOI and that commitment is reflected in our enquiries statistics. 1,551 enquiries were received in 2009, bringing the overall total to 7,891 since my office was set up. Again, the public's interest is reflected: 59% of 2009 enquiries were received from members of the public, the majority seeking advice and guidance on how to use FOI effectively. 23% of enquiries were from public authorities.

The public sector is clearly going to face tough times, and it is likely that authorities will be asked to account for their decisions. My Annual Report closes with a call for authorities to adopt smart compliance measures to improve the service provided to applicants and to reduce the burden of compliance. Our assessments have shown that the best authorities are those which have:

  • trained frontline staff to recognise requests,
  • instituted a culture of responding positively to requests,
  • put professional systems in place for the times when information may be refused e.g. tracking systems to ensure compliance with timescales for response; and template letters to avoid technical breaches of the law when replying to applicants

The benefit of getting things right first time is that applicants are more likely to get the information they want, or to be satisfied with the reasons for withholding information, thereby reducing the number of requests for review or applications to me as Commissioner

Kevin Dunion's Signature
Kevin Dunion, Scottish Information Commissioner
 
At a glance - January and February 2010
 New applications received:  68
 Enquiries responded to:  286
 Cases closed - Decision Notice:  31
 Cases Otherwise closed  38
 
Key decisions issued
Your Right to Know Cover - No Text

 Decision 003/2010 Jonathan Mitchell QC and SLAB

This involved a request by a QC to the Scottish Legal Aid Board (SLAB) for information about the payment of solicitor advocates. Under section 34 of SLAB's founding legislation, it is illegal for SLAB to disclose information furnished to them without the consent of the person who furnished it. SLAB managed to obtain consent to disclose much of the information, but one organisation which had supplied information refused to allow its disclosure. SLAB therefore cited the exemption in section 26 of FOISA (prohibitions on disclosure). The Commissioner has dealt with section 34 of the SLAB legislation before, but only in relation to information about a person seeking or receiving legal aid. In this case, he accepted that the prohibition was wide enough to cover the more general information (furnished to SLAB for the purposes of its founding legislation) which had been withheld: therefore, he accepted that the exemption in section 26 applied.


Decision 020/2010 Michael Peterson and Shetland Islands Council

In this case, the Commissioner was asked to consider the provisions of section 11 of FOISA. This requires Scottish public authorities, where reasonably practicable, to provide information to a person who requests it in a way which meets a preference they have expressed in making their request. This only applies in relation to certain specified means of providing the information, which include the provision of a reasonable opportunity to inspect the relevant records. Here, the applicant had asked to inspect a number of files held by the Council on various matters and had stipulated requirements in relation to the inspection arrangements. The opportunity to inspect offered by the authority did not meet all of these requirements. While acknowledging that the applicant may have had personal reasons for his stipulations, the Commissioner found that the opportunity to inspect offered by the Council was reasonable in the circumstances and gave effect to the applicant's preference to the extent that it was reasonably practicable to do so. Consequently, the Council complied with section 11 in dealing with the request.

 
News in brief
Photograph of Commissioner with Minister and MSP

Parliamentary reception a success

At a reception in the Scottish Parliament on 4 February to celebrate the 5th anniversary of FOI in Scotland around 160 guests joined the Commissioner, Bruce Crawford, Minister for Parliamentary Business and sponsoring MSP Michael Matheson. Guests had all been part of Scotland's FOI journey in some way - from individual applicants through to Lord James Wallace, who introduced the FOI Bill into Parliament. As well as addresses from the Commissioner, the Minister and Mr Matheson, guests heard from Claire Turnbull, from the Scottish Parliament, and Donna McSwiggan from campaign group Inclusion Scotland, who talked about their experiences of working with the Act.


Centre for FOI Forthcoming seminar

The final Spring seminar is in Edinburgh on 24 March. Professor Dan Metcalfe, of Washington College of Law will provide a keynote presentation "Lessons from America". Professor Metcalfe retired in 2007 from a career in government service that began at the Department of Justice in 1971; for more than 25 years he guided all federal agencies on the administration of the FOI Act and supervised the defence of more than 500 FOI and Privacy lawsuits. He has a keen interest in the Obama Administration's aspirations for FOI and provides fascinating commentary about the experience of FOI from both sides of the fence. See Centre for Freedom of Information

 
News in brief

Model Publication Schemes for Health sector

The Commissioner's Office has supported bodies in the NHS sector to develop new model publication schemes. A new Model Scheme for Scotland's 22 Health Boards has already been approved. This scheme was developed by a working group of FOI practitioners in Health Boards. The new model covers more published information than its predecessor e.g. expenses and salaries, contract information, and details of community health partnerships. From the health practitioner sector, two model schemes have been approved: for Dental Practitioners, developed by the British Dental Association (Scotland) and for General Practitioners, developed by the British Medical Association (Scotland). The models are published on the 'Approved Model Schemes' page of the Commissioner's website.


Promoting Good Practice - Practice assessments

Practice Assessments explore whether an authority's practice complies with its obligations under FOISA and whether it is following the related codes of practice. They are undertaken through on-site visits, with the Commissioner's staff assessing an authority's systems and procedures for handling information requests. Assessments have been positive and constructive, with authorities responding to recommendations on their practice and implementing changes. Practice assessments can be viewed at 

  • Transport Initiatives Edinburgh (tie) Ltd (report published)
  • Queen Margaret University (report published)
  • Northern Constabulary (report published)
  • Stevenson College (report published)
  • University of Glasgow (report published)
  • Perth & Kinross Council (report published)
  • Fife Council (report pending)
  • Lothian & Borders Fire Board (report pending)
  • Scottish Ambulance Service Board (report pending)
  • Scottish Borders Council (report pending)
  • Transport Scotland (report pending)
  • Aberdeen City Council (report pending)
  • Crown Office and Procurator Fiscal Service (assessment planned)
  • NHS Grampian (assessment planned)

 
Contact us
Photo of Commissioner's staff

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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