News and Commentary from the Scottish Information Commissioner

News and commentary from the Scottish Information Commissioner

November/December 2010

 
Commissioner's commentary
Kevin Dunion

Just before Christmas, the eighth annual Holyrood FOI conference attracted an excellent range of speakers and delegates to discuss the future of FOI in Scotland during these difficult times.  Before the event, Holyrood Magazine ran a short survey of delegates, in partnership with my Office.  The findings were thought provoking.  63% of respondents believed spending cuts would drive the public to make greater use of FOI, while 64% anticipated that authorities would have fewer resources for FOI over coming years.

Public authorities are, understandably, concerned about how to address this challenge.  It is, perhaps, tempting for some to consider choking off demand, for example by charging fees as Ireland has done.  The truth is that this would be socially regressive, prone to discriminatory use, and politically challenging given the commitment made by successive Scottish Governments to openness and transparency.

That is not to say that the concerns of authorities are not legitimate - they are.  But there is another way.  Before changing the law, we should look at changing current practice to reduce the burden.

My practice assessments highlight that FOI performance varies between authorities, depending on how it is managed.  In most instances I have found that improvements need to be made.  Authorities can also learn from each other - there are many examples of good practice highlighted in my assessment reports, all of which are readily available on my website.

Authorities who get it right first time avoid the cost of dealing with reviews and appeals.  What practices do these authorities have in common?  They train their staff, set up robust monitoring systems, and maintain good information records.  They correctly identify FOI and environmental information requests.  They respond in time and inform people of their rights.  Well performing authorities also tend to have a customer-oriented culture.  They treat people maturely, and share information with them in real time.  They share the tough choices, and explain the unpopular decisions.


Extending the scope of FOI

In his Ministerial address to the conference, Bruce Crawford updated us on progress towards extending the scope of FOI to the Glasgow Housing Association, the Association of Chief Police Officers in Scotland, private prisons, leisure trusts and PFI contractors.  He reported overwhelming support for the principles of openness and transparency, coupled with the concerns of some about the practical impact of extension - although he did acknowledge that very little evidence of actual burden was forthcoming.  My support for extending the scope of the Act is a matter of public record, and I have set out my arguments for why FOI need not be as burdensome as some fear, and why the benefits of coverage outweigh the costs.  I am encouraged that the current Government has taken the agenda forward - further indeed than any of its predecessors.  It is also interesting to note that the UK Government has just followed suit, and announced its own intention to review the UK FOI Act with a view to extending it to a wider range of bodies. 

However, in Scotland time grows alarmingly short, and it will be a truly regrettable missed opportunity if designation does not occur before Parliament dissolves for the elections.

 
Publication schemes - the way forward
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The consultation which I announced in September 2010, on revising my approach to publication schemes, closed on 29 October 2010, and I have spend the past few weeks considering the findings in order to arrive at a way forward which addresses as many of the points raised in the consultation as possible.

I received 50 written responses in total, of which most (44) were from Scottish public authorities.  I was also pleased to received representations from a small number of civil society groups and commercial organisations - publication schemes are public documents which should be user friendly, in order to encourage the general public and other stakeholders to make active use of them, and it is important to understand their perspective.  Interestingly, I also received responses from UK public authorities which are subject to the Freedom of Information Act 2000, and which have already adopted a single model prepared by the Information Commissioner's Office.  Their experience of adopting and implementing a single model scheme will be of great value to us here in Scotland.

A preliminary report on the consultation findings will be published on my website shortly, along with electronic copies of all 50 written responses received.  Although I am yet to finalise my analysis of the findings, I can share that there was strong support in principle for a single model scheme from the majority of respondents.  As a result I intend to proceed with plans to develop and publish a single model publication scheme, with a view to piloting this with Schedule 1 Part 7 bodies (which includes non departmental public bodies) and publicly owned companies, whose current schemes expire this year.

Kevin Dunion's Signature

Kevin Dunion, Scottish Information Commissioner

 
At a Glance - March to December 2010

 

Inform Enquiries Mar to Dec 2010Inform New apps Mar to Dec 2010

 

Inform Cases Otherwise Closed Mar to Dec 2010Inform Decisions Mar to Dec 2010

 

 

 

 

 

 

 
Key decisions/Practice assessments
Files flying out of a cabinet

The 40 decisions issued by the Commissioner during November and December 2010 cover a wide range of topics, from overtime work on the Edinburgh tram project, to the First Minister's engagements, and from the policing costs for football fixtures, to preparations for the summer 2010 Cabinet Tour.  In almost three quarters of these decisions, the Commissioner found that the public authority had failed, wholly or in part, to deal with the requests in line with the Act.


Failure to comply with timescales

Ten of the decisions looked at whether the public authority had complied with the timescales under the Act.  The Act gives public authorities 20 working days to reply to an information request and a further 20 working days to reply to requests for review.  Six years after the Act came into force, it is disappointing to see that public authorities are still failing to comply with these timescales.


Vexatious requests

Four of the decisions looked at whether information requests were vexatious - public authorities are not required to comply with a request where it is vexatious.  The Act does not define 'vexatious', but the Commissioner has published guidance for public authorities on the types of requests he considers to be vexatious.  In two of these decisions, the Commissioner agreed that the requests were vexatious. One decision (Decision 208/2010 Mr D and Accountant in Bankruptcy) related to a request made to the authority which involved a matter which had been the subject of correspondence between the applicant and the authority for almost 20 years.  The Commissioner took account of the context of the application, and came to the conclusion that the request was vexatious, given that it appeared to have been made with the intention of reprising an earlier debate with the authority, in relation to which the authority had already provided as complete a response to the applicant as may have reasonably been expected.

The Commissioner also considered a case involving 60 requests made to Scottish Water by a company with which Scottish Water were in dispute (Decision 212/2010 CaL Solutions (Billingham) Ltd and Scottish Water).  The Commissioner came to the conclusion that the volume and nature of the requests would impose a significant burden on the authority, particularly given that groups of requests were sent in rapid succession. While the Commissioner recognised that Scottish Water has substantial resources at its disposal, he considered that the task of responding to the requests could only have been achieved via the diversion of significant resources, at the expense of Scottish Water's wider functions and responsibilities.


Requests from local elected members

Finally, the Commissioner notes that three of the decisions involved information requests made by elected members to the local authorities they represent.  It will be interesting to see if this trend continues.


Practice Assessment? City of Edinburgh Council

The Commissioner's assessment team visited City of Edinburgh Council on 1 and 2 September 2010.  The Council was selected for assessment following concerns about compliance with statutory timescales and difficulties in receiving adequate submissions and consistent responses from the Council during the Commissioner's investigations.  The Council was notified of the assessment visit in April 2010, but it is worth noting that it had instigated work to address shortcomings in the way it dealt with information requests in April 2009.  By the time of the visit, the Council had carried out a review of the management of its FOI function, which amongst other things had recommended the creation of a new Central FOI Unit.  While the assessors noted these changes, and recognised the potential for improvement, should they be implemented fully and effectively, they then went on evaluate the Council's practice in terms of its actual past and current performance.  The assessment found that the Council's procedures were robust when the Act was introduced, but as request volumes increased, it did not re-evaluate its processes to ensure they remained fit for purpose, until April 2009.  Amongst other things, the assessment recommended staff training, improved content for notices and a consistent approach to logging, tracking and monitoring requests for information.  The effectiveness of the changes being introduced by the Council (both proactively and in response to the Commissioner's assessment) will be reviewed in May 2011.  View the Assessment Report (pdf - 232 Kb) and Action Plan (Pdf - 164Kb).


Unless otherwise stated, the decisions listed may be appealed by either party to the Court of Session on a point of law.  Any such appeal must be made within 42 days of the date of intimation on the decision.

The full text of all decisions issued under Scotland's FOI legislation can be viewed on the Commissioner's website.

 
Commissioner's news in brief
Pile of Newspapers

FOI roadshow weathers the storm

On 6 December 2010, staff from the Commissioner's office travelled to Inverness to host a day of workshops, training sessions and one-to-one surgeries to raise awareness of FOI, and advise potential requesters on how they can put their 'right to information' to good use.  The day was a great success - despite the challenging weather conditions - with voluntary organisations, advice and rights providers, campaigners and members of the public exploring how to use FOI effectively, and a successful training session held with local media representatives.  Details of further roadshows across Scotland in early 2011 will be announced shortly.


5th Anniversary campaign success

Part of the Commissioner's role is to provide the public with information about their FOI rights, and how to make the most of them.  The Commissioner's '5th Anniversary of FOI' information campaign, which ran from January to March 2010, received two awards at the Chartered Institute of Public Relations (CIPR) 'PRide Awards' in November 2010.  The small-budget campaign - which was developed and delivered by Real PR in association with the Commissioner and his team - won the gold award for 'Best Public Sector Campaign', as well as picking up the silver award for 'Best Use of Media Relations'.

To find out more visit our news release: 5th Anniversary FOI Campaign wins two CIPR awards


Decisions database

The Scottish Information Commissioner's decisions database is the most used part of his website.  As a result of feedback from users, it is now possible to search the full text of all the Commissioners decisions - not just the decisions titles and short descriptions, as was the case before.  This allows users to pinpoint decisions of interest to them with greater accuracy.  For example, public authorities, civil society groups and members of the public alike can locate decisions which are relevant to requests they are either making or responding to, more easily than before.  Researchers can use the new search functionality to interrogate the database and 'shortlist' groups of decisions around common themes. 

We welcome your feedback on the database, and thoughts on how we can improve it further.


Getting it right first time

The Commissioner has updated the content of 'The Commissioner's Investigations: A Guide for Scottish Public Authorities', to reflect changes in his approach to investigations, from January 2011, designed to increase the efficiency of his Office.  At present, an investigating officer will write to a public authority inviting it to comment on an application, and asking specific questions relating to it.  The authority can offer arguments in support of its position, and should answer all the questions asked.  Before now, should the authority's response at this stage be incomplete or unclear, the investigator has gone back to the authority as often as necessary to achieve clarification.  From January 2011, the Commissioner intends to move to a decision based solely on the arguments provided by the authority in response to the initial letter from the investigator.  While they are not legally obliged to comment on any application to the Commissioner, it is in public authorities' interests to ensure that, should they do so, they provide clear, accurate and comprehensive submissions which fully address all the relevant issues.

 
FOI news
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This edition of Inform introduces a new section, following feedback from our recent readers' survey. It provides links to selected news highlights on FOI and information management from around Scotland, the UK and farther afield.

(Please note that the Scottish Information Commissioner cannot take responsibility for the content of external links.)

In Scotland

Across the UK

Around the world

We welcome feedback on this new section of Inform.  Is it useful?  how could we improve it?  You can contact us on the details below.

 
Contact us
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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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