News and Commentary from the Scottish Information Commissioner

News and commentary from the Scottish Information Commissioner

November 2012 to January 2013

 
Commissioner's commentary
Photo of Rosemary Agnew

It's that time of year again: holiday ads, retrospectives and calorie counting (I'm definitely giving up cake - maybe).  For authorities it's the start of our final quarter when we are mindful of budgets, business plans and the year ahead.  I can't help but look back over my first seven months, but in doing so it brings alive for me the future and what I would like to achieve.

So what fired me up for the future?  I hit the ground running, within weeks issuing some significant decisions, which resulted in considerable press coverage and promoted wider debate that went well beyond the actual decisions taken.  These emphasised for me the importance of evidence-based decision making and being open and fair to all parties, even when that means making the difficult decision.  I feel privileged to be part of an organisation whose culture is one of fairness and openness, and I would like to help others develop theirs in their approaches to information.

A culture of fairness and openness can have a huge impact on the delivery of FOI legislation because it puts the needs of individuals, under FOI, at the heart of an organisation's approach, whether requesters or authorities.  It is frustrating to see that there remain deficiencies in some authorities in carrying out reviews, responding to requests on time and in some cases responding at all.  When I contrast this with the really great practice I also see, one of the key factors is the culture of the authority.  Those committed to delivering FOI because they want to engage positively with service users seem to do better than those who simply see it as yet another legislative and financial burden.  This is reflected in timescales, proactive publication and the policies and practices followed at all levels.

One of the ways we aim to contribute to overall improvement is through active sharing of good practice and effective training.  We introduced the weekly decisions round-up, and our learning and development survey is the starting point for future plans (more about these below).  The message is simple - the benefits of getting FOI right first time range from improved relationships to reductions in costs such as dealing with reviews and appeals.  The easiest of all the actions public authorities can take is reducing the number of reviews and appeals resulting from failure to respond in time.

We also aim to be able to report on FOI in a more informative way.  Presently, there is no single repository of FOI statistical data in Scotland.  The Section 60 Code of Practice requires data to be collected by authorities but nowhere is this collated and analysed.  This makes it difficult to say with confidence, for example, whether the rise in the number of appeals to me is a reflection of a rise in the number of requests being made or whether there might be other factors.  It also does not support authorities in being able to benchmark themselves against similar organisations.  Look out for more on this over the next few months.

Apart from business as usual the other big thing was, and is, the FOI Amendment Bill.  I welcome the removal of the proposed absolute "royal" exemption which would have damaged rather than strengthened FOI rights in Scotland, and the amendments to section 5 (see more below).  While I support broadly the section 5 amendments, I remain concerned about the frequency of reporting and do not intend to stop pushing for greater designation under the powers that exist.  Designation is important for the protection of rights ? it's not just about extension.

Here's to the next 12 months!

Rosemary Agnew's signature

 
FOI amendment Bill - the story so far
Image of cover of FOI Act

We've been keeping you posted about the passage of the FOI Amendment Bill since it was introduced to the Scottish Parliament in May 2012.  In the last edition of Inform we explained that while we welcomed most of the provisions, we had serious concerns about some of the Government's proposals. We're pleased to report that the Finance Committee (leading the Bill) recommended the removal of plans for an absolute exemption for information relating to communications with senior royals, and expressed concerns about the lack of extension of FOI coverage since 2005.

The Scottish Government has responded by:

  • removing proposals for an absolute royal exemption
  • requiring Ministers to report to Parliament every three years on their use of section 5 powers (designation of Scottish public authorities) and wider consultation with "other appropriate persons" (not just the authorities being considered).

The Deputy First Minister has also made welcome commitments to extend FOI to arms' length external organisations "in early course" and to revisit wider designation issues in the longer term.

The final Stage 3 debate by the Scottish Parliament will be held on 16 January 2013. Several further amendments have already been lodged by MSPs - including requiring "members of the public" (not just "other appropriate persons") be consulted in relation to designation orders, and to make reporting on designation more frequent than proposed.

Bill Timeline

 

 Ministerial announcement  16 Dec 2011
 Scottish Government consultation  16 Dec 2011 - 8 Mar 12
 Scottish Government's consultation report  31 May 2012
 Bill laid before Scottish Parliament  30 May 2012
 Call for written evidence  4 Jun 2012
 Evidence and Committee deliberations  5 Sep - 31 Oct 2012
 Stage 1 Report published  2 Nov 2012
 Stage 1 debate  15 Nov 2012
 Stage 2 concluded  5 Dec 2012
 Stage 3  16 Jan 2012

 (Image courtesy of the Scottish Parliamentary Corporate Body)

Link to Commissioner's submissions

Link to Finance Committee's website

Link to FOI Amendment Bill pages on Scottish Parliament's website

 
Understanding Learning and Development Needs
Close up image of tick box on a questionnaire

We've had a great response to our online FOI learning and development survey issued in December but would appreciate further contributions before the survey closes at the end of this month. The survey aims to set a baseline of current national practice and views about FOI learning and development which we can use to help shape future plans.

Our plans will include positive actions that support the aim of helping authorities getting it right first time, recognising that the key to this is the knowledge and expertise of staff.

The survey seeks a wide range of views - from staff with strategic knowledge of the authority's learning and development strategy, through to individual FOI practitioners.  We will report on the survey findings in a later edition of Inform.

You can access the survey at:

http://www.surveymonkey.com/s/OSICLearning

 
At a glance - January 2012 to December 2012

Graphs showing applications statistics for 2012

Excel File Click here for an accessible version of the above charts (Excel - 26.7 kB)

 
Compliance, good practice and lessons learned
Filing cabinet with papers flying out

The Commissioner continues to publish a round-up of Decisions every week with a focus on lessons that can be learned by authorities and applicants.  We also pick up great examples of good practice when we go to see public authorities.  We've focused on three key themes October to December.

Be specific

One of the commonest mistakes was relying on overly-general arguments in favour of applying exemptions or exceptions, or refusing requests on cost grounds.  It is important that authorities consider how FOISA (Freedom of Information (Scotland) Act 2002) exemptions and EIR (Environmental Information (Scotland) Regulations 2004) exceptions apply to the specific information asked for.  If you cannot make an argument for an exemption or exception to apply to information, then consider if it should simply be released.

Can you identify requests?

When asking for information, an applicant does not have to mention FOI legislation in the request, and the "20 working days" clock starts ticking as soon as the request is received by any member of the authority's staff.  In recent decisions, requests have been missed because staff did not know how to recognise requests, or because requests have been "buried" in correspondence about other matters.  Training is vital to ensure all staff can recognise FOI and EIR requests and know what to do with them in their organisation.  In our visits to public authorities, we are seeing encouraging evidence of new approaches to staff training e.g. South Ayrshire Council have developed a new online FOI training package for staff.  Applicants can also help themselves by making FOI requests separately from other correspondence though they are not obliged to do so.

Are you advising and assisting?

Authorities are legally obliged to advise and assist people when they make requests. Failure to do so can lead to decisions being made against authorities.  Recent decisions have seen an authority fail to help a requester by not advising him what types of information it held, and failure to help a requester refine a request so it could be met within cost limits.  Staff may be unclear what is required of them in relation to this duty: again, training can make a big difference, and the Ministerial Code of Practice issued under section 60 of FOISA provides some excellent examples.  It is also worth mentioning that applicants should not be afraid to ask for advice from authorities.  It is your right to receive assistance and it can help ensure you get what you are looking for.

View recent decisions round-ups at Decisions Round-ups: October to December 2012 and our practice assessment reports at .

 
News in brief
Image of light shining through keyhole

Annual Holyrood FOI Conference 2013

The tenth Annual Holyrood FOI Conference will take place on 31 January at the COSLA Conference Centre in Edinburgh.  Is Scotland becoming less free with its information? will explore recent developments in FOI and is an opportunity to to learn from key figures in FOI, and explore and understand the latest issues. Confirmed speakers include the Commissioner and Deputy First Minister Nicola Sturgeon, who now has responsibility for FOI as part of her ministerial portfolio. The event will also feature breakout discussion groups, exploring a range of relevant areas including: FOI extension; the interrelation between open data and FOI; the application of fees and protecting personal data in an FOI response.

For further information or to book a place, visit: http://foi2013.holyrood.com

New publication schemes due in 2013

On 31 May 2013, the Commissioner's approval for the current publication schemes of all local government bodies, police, and educational institutions will expire.  This comes at a time when many of these organisations are undergoing major structural change, e.g. the creation of Police Scotland and reorganisation of Scotland's FE colleges.  Since launching the Model Publication Scheme 2013 in October, we have been working with these sectors to assist them in their preparations.  For example, we ran a workshop to develop a sectoral guide to information for FE colleges.  The event, in partnership with Colleges Scotland, was attended by 17 colleges.  We are optimistic that all the bodies affected will adopt the Commissioner's Model Scheme, and we are writing to them this month to confirm their intentions.

View the Model Publication Scheme 2013 at http://www.itspublicknowledge.info/MPS/

Response to Procurement Reform Bill

In November, the Commissioner submitted her views to the Scottish Government's consultation on the Procurement Reform Bill.  The Bill aims, amongst other things, to promote public procurement systems which are transparent.  The Commissioner welcomed this particular aim of the Bill, and supported provisions which would require the proactive disclosure of contract information.  She has recommended that those provisions of the Bill which relate to transparency align with existing information legislation, and particularly that any exemptions in the Bill should align with those in FOISA and the exceptions in the EIRs.

View: Link to Commissioner's submissions

Campaign for Freedom of Information in Scotland Training Event

The Campaign's Director Maurice Frankel is leading a half day's training course in Glasgow on Tuesday 26 February, from 1.30pm to 5pm.  While the course will focus on the significant decisions issued by the Scottish Information Commissioner since the last course, it will also cover significant Court of Session rulings and decisions issued by the UK Tribunal that have implications for Scottish public authorities.  A 30% discount is available for second and subsequent bookings from the same organisation.  Advocates and solicitors can claim three hours' CPD.

You can access the course programme and booking form here:

http://www.cfoi.org.uk/pdf/sicdecisionsfeb13.pdf

Naming applicants in decision

From time to time, the Commissioner anonymises decisions when they are published on our website.  This can be for a number of reasons, most importantly perhaps when an applicant requests it.  When we start an investigation, we invite the applicant to tell us if they have a valid reason to remain anonymous.  While the final decision on whether to anonymise a decision rests with us, the wishes of the applicant are a critical factor in determining the best course of action.  We also anonymise decisions occasionally, where the applicant has not specifically requested it, but where we believe it is in the interests of the applicant to do so.  We will shortly be updating our guidance to applicants to make our approach to anonymisation clear.

 
Other FOI News
Silverglobe

Scotland

  • In November, FM Alex Salmond announced a new whistleblowing hotline for NHS workers following a BBC investigation, using FOI, to reveal 300 previously unpublished health board reports into adverse events.
  • Act Now Training announced its new Practitioner Certificate in Freedom of Information in Scotland ? the first certificated course specifically designed for those who work with FOISA and EIRs in Scotland.  The Commissioner was consulted on the draft programme, and it is endorsed by the Centre for Freedom of Information.
  • The National Archives published an update on progress in relation to the implementation of the Public Records (Scotland) Act, following five surgeries that were held across Scotland. The update is available at: www.nas.gov.uk/recordKeeping/publicRecordsActLatest.asp

UK and Ireland

Around the world

  • The Canadian Information Commissioner is consulting on reform of Canadian Access to Information Act. As part of this consultation, she has solicited and published a paper on international best practice trends in FOI by Professor Alasdair Roberts, and a submission on the lessons for Canada from Australia's 2010 FOI reforms from the Australian Information Commissioner.
  • The Australian government also announced a review of the Australian national FOI Act, in November. The state of Queensland opens a consultation on the topic of what ministers should be told about applications to access government information.
  • The Hong Kong ombudsman announces plans to review its access to information regime and records management system. Hong Kong currently has a Code on Access to Information rather than a fully-fledged law.
  • The Mexican Senate approves FOI amendments to give more authority to the Federal Institute of Access to Information (IFAI), Mexico's oversight body. Under the legislation, the IFAI's decisions would be made binding, and the government would be prevented from appealing IFAI decisions to the Supreme Court (a right now reserved only to citizens). IFAI's jurisdiction would extend to cover legislative and judicial branches, as well as states and municipalities. Political parties, unions and trusts will also be required to be transparent about their management of public funds.
  • South Africa is creating a new position of Information Regulator, with the power to decide access to information cases.
 
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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