News and Commentary from the Scottish Information Commissioner

News and Commentary from the Scottish Information Commissioner

May/June 2012

 
Commissioner's commentary
Photo of Rosemary Agnew

It's hard to believe I took up post as Scottish Information Commissioner two months ago.  It has been a busy and exciting time spent getting to know my team, taking stock of where we are, and looking ahead to how we take our work forward ? not to mention making decisions!

It is a great honour to serve as Scotland's Information Commissioner, and a unique opportunity to develop and build on the success of Scotland's freedom of information (FOI) regime.  As you may be aware, previous roles gave me first-hand experience of dealing with FOI requests and reviews, including putting in place FOI policies and procedures.  I know only too well the challenges facing practitioners and decision-makers alike in implementing FOI legislation in practice - both in terms of the practicalities of dealing with requests and in relation to maintaining standards in a time of reduced resources.

There are many factors that contribute to an authority's success in FOI practice, some of which go wider than simply applying the legislation.  These include:

  • an open culture where every person in the organisation is transparent in the delivery of services and proactive in promoting the sharing of information
  • well-informed staff, with the skills and training to support the organisation, whether that be technically expert FOI officers and reviewers, front-line staff who deal with service-users day-to-day or leaders and decision-makers
  • good robust policies and procedures that ensure the processing of FOI is embedded in the organisation
  • meaningful monitoring and reporting that enable trends and issues to be identified and addressed in a constructive and proportionate way to deliver good quality work, efficiently
  • the co-ordination and sharing of good practice and advice in dealing with FOI
  • effective supporting business systems such as records management and stakeholder engagement.

The appointment of a new Commissioner is an opportunity to review how statutory functions are delivered.  I am fortunate to have inherited, from Kevin Dunion, expert committed staff and an extensive body of case precedent.  I and my team are exploring how we can deliver our statutory functions with reduced resources and how, with this wealth of knowledge and experience, we can add value to enable authorities to deliver theirs.

As far as the enforcement function is concerned you are unlikely to see significant change in how this operates in practice - any change will be incremental, a matter of refinement.  Authorities and I will inevitably have differences of opinion about the application and interpretation of FOI legislation, particularly in relation to decisions about appeals, and I hope we can approach these in a constructive way.  As part of our own efficiency drive, we will continue to strive to reduce case journey times and explore whether more cases can be resolved between parties without the need for formal decisions.

The main change I want to make during my term of office is to enable authorities to deliver FOI more efficiently and effectively, through developing both the expertise of FOI practitioners, and their practice in relation to other aspects of FOI legislation.  I believe that meeting statutory obligations under FOI can enable authorities to become more effective and transparent, and that getting it right first time can help an authority make efficiency gains at a time when resources are ever scarcer.  Areas I will focus on, for example, include: the use of publication schemes to develop more effective "information-push" rather than authorities having to constantly take a reactive approach; and enabling shared learning and good practice to develop expertise in authorities.

In the coming months, I and my team plan to initiate a wider discussion by publishing an online survey.  We aim to gather the views of a wide range of stakeholders about the need for FOI training and other support to authorities, and we hope you, and your colleagues, will contribute your thoughts and experiences to that debate.  Already I am receiving encouraging responses from authorities expressing enthusiasm for the approach.  So please do not hesitate to contact us.

 Rosemary Agnew's signature

Rosemary Agnew, Scottish Information Commissioner  

 
A guide to dealing with requests
Image showing Compass Points

We are currently developing a new guide which draws together our advice for authorities on the "technical" aspects of responding to requests into one volume, including practical step-by-step guidance, checklists and links to further resources.

The new "Guide to dealing with requests" will provide a practical tool for anyone responding to an FOI request on behalf of a public authority, which aims to reduce the likelihood of technical errors ? that is the way in which a request is deal with, rather than decisions about whether or not to release information.  It will deal with every aspect of handling a request in detail, including:

  • recognising that a request has been made
  • complying with timescales
  • conducting thorough searches
  • considering and applying exemptions properly
  • advising applicants about their rights to review and appeal.

Technical mistakes in handling requests are a source of great frustration for both authorities and applicants.  Applicants are naturally disappointed when authorities fail to respond, take too long, or issue inaccurate or incomplete responses.  For authorities, technical breaches are generally simple errors which are easily preventable.  Avoiding these can help an authority use its resources more efficiently.  Where authorities get requests "right first time" they can avoid the need to conduct a review, or to respond to an investigation by the Commissioner.

We will let you know when the guide is published, and you will be able to download it from our website, or contact us for a hard copy.

 
At a glance - June 2011 to May 2012
Charts showing applications statistics for May and June 2012
 
Key decisions issued
Filing cabinet with papers flying out

The Commissioner's first three decisions, published in June, show her support for some hard-won principles established in Scotland's FOI law, but also signal her commitment to providing positive learning opportunities for all of Scotland's public authorities.  The Commissioner's decisions are a valuable resource for public authorities providing them with the knowledge and understanding they need to improve their own practices.

In two decisions relating to City of Edinburgh Council, the Council made similar arguments against disclosure under the Environmental Information Regulations (the EIRs).  The Commissioner ordered release in one case, but upheld the Council's decision to withhold the information in the other.  These two decisions reinforce the established principle of examining the impact of release of the specific information in question.  In one case, the information could lead to the identification of people under investigation but about whom no conclusions had been reached.  Release of information could substantially prejudice a fair trial.  In the other case, the information being requested was largely factual and would not have the same damaging effect.

Decision 094/2012: Mr Craig Beveridge and City of Edinburgh Council

Mr Beveridge asked City of Edinburgh Council whether anyone who was being investigated or had been suspended in connection with an ongoing investigation relating to statutory notice repairs, had been involved in decisions on a statutory notice served on a particular property.  The Council applied the exception in regulation 10(5)(b) of the EIRs, claiming that disclosing that information would substantially prejudice the ability of the Council to conduct a criminal or disciplinary inquiry.  The Commissioner found that the Council had been correct to withholding the information in terms of regulation 10(5)(b) of the EIRs.

Decision 093/2012: Mr Bruce Thompson and City of Edinburgh Council

Mr Thompson asked City of Edinburgh Council for information that was withheld within two pieces of correspondence, which had been disclosed following a previous information request.  The Council refused, citing regulations 10(4)(e) and 10(5)(b) of the EIRs, claiming some of the withheld information was internal communications, and also that release would substantially prejudice the ability of the Council to conduct a criminal or disciplinary inquiry.  The Commissioner found that the Council had not applied these exceptions correctly, and had not responded to Mr Thompson's request within the statutory timescale.  She ordered release of the information.

Decision 092/2012: Kathleen Winter and Dundee City Council

Ms Winter asked Dundee City Council for information relating to winter maintenance activities carried out at a particular location and weather forecasts during a specified period. The Council refused her request, claiming it was exempt under sections 33(1)(b) (Commercial interests and the economy) and 36(1) (Confidentiality) of the FOI Act.  Following a review, the Council withdrew its claim that section 33(1)(b) applied.  During investigation, the Commissioner decided that the sought information was environmental, so the Council stated that it wanted to withhold the information under regulation 10(5)(b) of the EIRs.  The Commissioner found that the Council had not applied the exemption correctly and had not dealt with the request properly in line with the EIRs.

 
Practice Recommendation issued to UHI
Practice Assessment Image

In May, the Commissioner issued the final report and action plan for the assessment of the University of the Highlands and Islands (UHI), carried out in February 2012.  The assessment found serious shortcomings in UHI's FOI arrangements, around FOI management and culture, request handling procedures, training, the review process and FOI monitoring systems.  The Commissioner took the unusual decision to issue a formal Practice Recommendation under section 44 of FOISA ? only the second issued since 2009.  The Practice Recommendation outlines the areas where, in the Commissioner's view, UHI failed to conform to the Scottish Ministers' Code of Practice on the discharge of its functions under FOISA and the EIRs.  It also explains the steps that she has asked UHI to take in order to remedy these.   For example, UHI has been asked to:

  • formalise its administrative arrangements for dealing with requests
  • define the allocation of key FOI roles and responsibilities, including identifying who is responsible for conducting reviews
  • ensure that suitable training is provided to staff with FOI responsibility
  • put documented procedures and systems in place to allow it to manage and report on reviews.

The Commissioner will monitor UHI's progress over the coming months, with an interim report due to be made to the Commissioner in July 2012, and a full update on progress in December 2012.  View the Assessment Report. Action Plan and Practice Recommendation online. 

 
News
Pile of Newspapers

Seeking your views on FOI training

The Commissioner will shortly be launching an online survey, seeking your views on how we can help public authorities meet their FOI obligations effectively, efficiently and confidently.  The survey will seek views on the quality and availability of FOI training (both in house and from external suppliers), what kind of training support public authorities need, and what you think of the training and briefing materials we already provide.  This is an important initiative for us, as the findings will help us understand how we can add value to FOI learning and development already available in Scotland.  We plan to build a framework to help practitioners, managers and leaders understand the benefits of FOI, and become more efficient and effective in meeting their FOI obligations.  You will be sent a personal link to the survey, and we hope you will participate.

New at the Centre for FOI

Over 80 delegates attended a seminar at the Centre for Freedom of Information at Dundee Law School on 30 May, entitled "FOI ? time to change? ? Implications north and south of the border".  As parliamentary scrutiny of FOI law in England and Wales draws to a close, a panel of experts discussed what changes were likely to result, and what this might mean for FOI in Scotland.  Speakers and panelists at the event: Back Row: Professor Kevin Dunion, Christine O'Neill, Partner at Brodies LLP, Ibrahim Hasan, Director of Act Now Training, and Dr Ben Worthy, from the University College London's Constitution Unit.  Front row: Rosemary Agnew, Scottish Information Commissioner, and the Law School's Professor Alan Page, who chaired the seminar.

Photo of Kevin Dunion, Christine O'Neill, Ibrahim Hasan, Rosemary Agnew and Alan Page

(Photograph courtesy and copyright D.C.Thomson&Co., Ltd)

The Centre for FOI is a partnership between the Commissioner and the Law School and has recently been joined by Professor Dunion, who held the post of Scottish Information Commissioner until February this year.  The Centre for FOI is entering a new phase and developing a new vision and strategy.  Together, the three partners will shape the Centre's strategic direction, while the programme of delivery will be managed by the University, and Professor Dunion.

An update on the FOI Amendment Bill

The Scottish Government introduced its Freedom of Information (Amendment) (Scotland) Bill to the Scottish Parliament on 31 May.  The Bill includes measures to: extend the time period in which a prosecution can be brought under section 65 of the FOI Act (i.e. for the offence of altering, concealing or destroying records to prevent disclosure); reduce the time period after which certain exemptions can no longer be applied; and create an absolute exemption for information relating to communications with senior members of the Royal Family.  In addition, the Bill adds two measures which featured in Kevin Dunion's Special Report to Scottish Parliament 2012 - a rewording of section 25(3) clarifying that information made available under a publication scheme is exempt under section 25, and the addition of section 38 to the list of exemptions where an authority can neither confirm nor deny that it holds the information.  The Scottish Parliament's Finance Committee will consider the Bill in the autumn, and the Commissioner will submit further written evidence then.

On the road again

On 28 May, members of the Commissioner's staff joined the Information Commissioner's Office to deliver a day of workshops for voluntary sector organisations in Edinburgh.  The workshops, in partnership with the Edinburgh Voluntary Organisations' Council (EVOC), introduced voluntary sector representatives to both FOI and data protection issues.  The day was fully subscribed, and a follow-up event has been arranged for 5 November for anyone who missed out.  For further information or to book a place visit: www.evoc.org.uk/course/freedom-information-data-protection-day-free-workshops/

 
Image of globe

Scotland

UK and Ireland

  • The Westminster Justice Select Committee has finished taking evidence in its post legislative scrutiny of the Freedom of Information Act 2000 (FOIA) and will publish its report over the summer.  It's likely the report will included recommended amendments to FOIA and the related codes of practice.  Visit the Justice Select Committee's website.

  • The Information Commissioner's Office (ICO) has published five new guidance documents on: the prejudice test; the public interest test; the exemption for legal professional privilege; calculating costs where a request spans different access regimes; and the public interest in the EIRs.  The ICO's Guidance Index lists all available guidance.

  • Irish Commissioner Emily O'Reilly published her ninth Annual Report.  In it she looks forward to publication of new FOI legislation later in 2012, which she expects to extend the Irish FOI Act to additional public bodies.  View the Irish Commissioner's Annual Report 2011.

  • The Protection of Freedoms Bill gained Royal Assent on 1 May 2012.  The new Act will make amendments to FOIA, including a requirement for data to be accessible in machine readable form.   View the Protection of Freedoms Act 2012.

  • Andrew Lansley, Secretary of State for Health, invoked the ministerial veto in FOIA to block release of the NHS Risk Register, on 8 May 2012.  It is the fourth time UK ministers have invoked the veto.

Around the world

  • The World Bank Institute has published a paper by Article 19's David Banisar on the interplay between access to information rights and privacy from a global perspective. Download David Banisar's paper.
 
Contact us
Rosemary Agnew and her team 2012
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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