News and Commentary from the Scottish Information Commissioner

News and Commentary from the Scottish Information Commissioner

October 2012

 
Commissioner's Commentary
Photo of Rosemary Agnew

It's now six months since I took up the post of Commissioner, and, as anticipated, these past few months have been some of the most eventful and interesting of my career to date.

I have been occupied with a huge range of activities, covering every aspect of the Commissioner's function. From developing our strategic plan, to reviewing and approving decisions, to meeting and learning from stakeholders from Scotland's FOI community and beyond - it's safe to say that I have found more than enough to keep me busy!

There are two areas of my recent work - arguably the two most high profile since I took up office - which I would particularly like to focus on here. These are the publication of my first Annual Report as Commissioner, and my evidence to the parliamentary committee considering the FOI Amendment Bill.

2011/12 Annual Report

Most readers will, I'm sure, be aware that my first Annual Report was published in September. The report was a challenge in that its principle focus is on the achievements of the organisation under my predecessor, Kevin Dunion. As the report shows, I am extremely fortunate to have joined an organisation that is in good health, has a dedicated and hard-working team who are passionate about what we do, and which has developed a substantial body of FOI decisions.

It is clear from the Report that most of the challenges of the last year have been met. Despite a 23% increase in FOI appeals and a reduction in funding, 72% of appeals were closed within four months (compared to 48% the previous year). Significantly, the average case journey time was reduced further to 15.9 weeks, meaning that cases are resolved more quickly, to the clear benefit of both authorities and requesters.

The report also sets out some of my own priorities for 2012/13 and beyond. Key to this is an increased focus on sharing good practice and supporting positive learning on FOI. All public authorities are facing new challenges in the management of resources to meet obligations, and the impact of FOI can be greatly reduced through practice efficiencies. Over the coming year we will be working closely with stakeholders to support the delivery of FOI in the most effective and efficient way possible.

As a first step, we now issue a weekly round-up of decisions which identifies key learning points for authorities and requesters. I strongly recommend you sign up to our mailing list to receive this, if you have not already done so. The round- up aims to help you get quickly to the heart of decisions and is an essential resource for anyone working with FOI.

You can access the full text of the Annual Report online at:

www.itspublicknowledge.info/home/SICReports/AnnualReports.aspx.

FOI Amendment Bill

On 12 September I was invited to give evidence to the Scottish Parliament's Finance Committee as it considered the Bill to amend FOI. As I told the Committee, I am supportive of the majority of the Bill's proposals, and I believe that, for the most part, the Bill will strengthen and clarify the provisions of Scotland's FOI Act.

I welcome particularly the proposed change to the timescales of section 65, making it easier to bring a prosecution where records have been altered, concealed or destroyed to prevent disclosure. I also support the addition of the personal information exemption to the list of exemptions where an authority is entitled to neither confirm nor deny whether information is held (section 18), and the clarification of the "publication scheme" exemption under section 25(3). The proposed changes to these provisions will simplify the application of exemptions for authorities.

Perhaps inevitably, the bulk of my evidence session was taken up with exploring my concerns around two aspects of the draft Bill.

Firstly, it is very disappointing that the draft Bill retains the proposal to create a new absolute exemption. If enacted, this measure would exempt all information which is contained within - or even relates in some way to - communications with senior royals. It is my view that the existing FOI provision, which includes a public interest test, provides adequate protection, and has worked very effectively to date.

I simply do not see the need to take the backwards step of creating a new absolute exemption, moving away from the internationally recognised good practice measure of a public interest safeguard. This is particularly the case when the new exemption will be as wide ranging as the one proposed, when the rationale for its creation has not been clearly articulated, or when it would have the effect of creating greater divergence between FOI and requests for environmental information (where a public interest test will continue to be applied).

My second area of concern relates to my disappointment that the Bill did not take advantage of the opportunity to designate additional bodies under FOI. It is now ten years since the FOI provision to designate additional bodies was enacted, yet in that decade no orders have been made, despite radical changes to the public sector landscape.

It is easy to think of designation principally in terms of an extension of the right to information. However, a failure to designate is increasingly representative of a failure to protect rights. By not designating new authorities rights to information are being lost through the outsourcing of public service delivery - whether it be to PFI contractors, external "arms-length" organisations, or other third parties. Since the FOI Act came into force in 2005, for example, 15,000 Scottish households have lost FOI rights as a result of the transfer of local authority housing stock to housing associations.

It was reassuring then, to hear Deputy First Minister Nicola Sturgeon, who now has responsibility for FOI, inform the Committee that she would be looking afresh at this issue following the Amendment Bill. The First Minister subsequently informed Parliament that he was extremely sympathetic to the designation of local authority trusts. I look forward to working with Ministers to take this agenda forward, to ensure that FOI rights are preserved and further erosion prevented.

More information on the Bill, including my own submissions and transcripts of evidence sessions, are available from the Scottish Parliament:

Scottish Parliament's FOI Amendment Bill Committee Pages

Rosemary Agnew's signature

Rosemary Agnew
Scottish Information Commissioner

 

 
At a Glance - October 2011 to September 2012

Inform Charts - October 2012

Excel File Click here for an accessible version of the above charts (Excel - 26kB)

 
Key Decisions Issued
Filing cabinet with papers flying out

We introduced our new Decisions Round-up in July. The round-up provides a summary of each decision published in the preceding seven days and highlights the key learning points from the decisions for authorities and requesters. The round-up replaces the update in this newsletter, providing you with an immediate notification of new decisions in the week of publication, rather than having to wait for the next edition of Inform.

The Decisions Round-up is currently being sent to all subscribers to our Inform mailing list. We plan to refine the service soon to allow you to subscribe to these resources separately - further details will be available shortly.

In the meantime, please make sure you're signed up at: www.itspublicknowledge.info/signup.aspx. (If you received this copy of Inform by email, then you don't have to do anything ? you're already signed up!)

 
Practice Assessment Update
Practice Assessment Image

The Commissioner's Assessment Team continues to visit authorities around Scotland across a diverse range of sectors, including health boards, local government, leisure and sports authorities, in line with the current schedule, which can be viewed at:

PDF icon 

Our assessments process continues to highlight areas of good practice by public authorities, and identifies where compliance remains an issue. The most common recurring themes in poor FOI request-handling continue to be:

  • A failure to identify requests (FOI or EIRs)
  • Late or no responses, typically due to procedural failures (resulting in additional and unnecessary work for authorities at appeal stage)
  • Inadequate searches for information held

These highlight the importance of authorities getting things right in the early stages of the FOI process. This helps authorities to focus resources more effectively.

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News in brief
Pile of Newspapers

OSIC Organisational Changes

Staff responsible for FOI practice assessments (Alistair Rennie and Elaine Moffat) have moved from our Enforcement Team to our Policy and Information Team. The move reflects our organisational aims to share best practice and learning.

Also, Claire Sigsworth, a long-serving Deputy Head of Enforcement, left the organisation in September. Claire will be sorely missed, but we all wish her the best in her new life overseas. Alison Davies, whom many of you will know as a highly experienced FOI investigator, has been appointed as Claire's replacement.

Court appeal withdrawn

On 23 October Nicola Sturgeon announced that the Scottish Ministers would  abandon their appeal against Decision 111/2012, which concerned whether legal advice on the status of an independent Scotland in the European Union was held. The court case had been due to go ahead on 18 December 2012. In her announcement, the Cabinet Secretary confirmed that the relevant legal advice was not held at the time of the applicant's information request. The Commissioner will not oppose this.

Other Court dates set

We currently have two court dates set for appeals in relation to the Commissioner's decisions:

  • 12-13 December 2012 - The Court of Session will judicially review Decision 014/2012, which concerned a request for the Tax Increment Finance business case in relation to Glasgow's Buchanan Quarter development.

  • 8 July 2013 - The Supreme Court will hear an appeal against Decision 056/2011, which concerned information on the numbers of people placed at specified points on South Lanarkshire Council's pay structure. The Council appealed the case to the Supreme Court following the Court of Session's dismissal of an appeal earlier this year.

 

Conferences and events

On 5 November we will again be joining forces with the (UK) Information Commissioner's office to deliver a second day of FOI and data protection workshops for voluntary sector organisations in Edinburgh. The workshops are now fully subscribed, but a further session is being planned for March 2013. Contact pmutch@itspublicknowledge.info for further information.

The next Holyrood FOI conference is being planned for January 2013 - slightly later than the traditional December slot. The move will mean that the conference can provide current updates on key FOI developments, such as the FOISA Amendment Bill which is due to complete its passage through the Scottish Parliament in December.

The Centre for FOI is also planning a full day learning event for FOI practitioners in spring 2013. More details will be available in future editions of Inform, or at www.centrefoi.org.uk in early 2013.

The Campaign for Freedom of Information in Scotland is holding a training course focusing on the Scottish Information Commissioner's decisions in Glasgow on Tuesday 26 February 2013. More details will be available on the campaign's website at www.cfoi.org.uk shortly.

 

Research shows voluntary sector concerns remain

In July we published the final report from the University of Strathclyde's study into the FOI experiences of the voluntary sector. The research explored the finding from an earlier survey that many people in the voluntary sector are concerned about the potential impact of FOI-use on their relationships with public authorities. The researchers also found that FOI-use was more likely amongst smaller, more independent organisations. Read the voluntary sector research report here.

To support use of FOI by the voluntary sector, we also published new web pages for the sector to provide support and guidance on using their rights effectively. The web pages are available at: www.itspublicknowledge.info/voluntarysector/


International engagements

In September Rosemary Agnew was invited to deliver a keynote address to an international FOI conference in Morocco. Morocco has recently agreed a new constitution providing access to information rights for the first time. Delegates were particularly interested in Scotland's experience of establishing an independent Commissioner to enforce FOI.

In October, Rosemary also addressed the Open Government Partnership European Outreach and Support meeting in Dubrovnik, and hosted a visit to Scotland by Cllr. Mark Freeman, the newly-appointed Liberian Information Commissioner.


Model Publication Scheme 2013

The new single Model Publication Scheme (MPS) 2013 was launched at an event in Perth on 18 October to participants from local government authorities, police services and higher and further education institutions. These authorities are all due to adopt a new publication scheme by the end of May 2013.

The MPS was positively received by authorities attending the event, and we are looking forward to supporting authorities in coming months in their adoptions of the scheme.

The MPS and accompanying guidance are available at:

www.itspublicknowledge.info/mps

 


 

 
Don't Forget...
Light Bulb

The search function on the Commissioner's Decisions Database allows you to search through the full text of every decision issued since 2005, letting you see whether any issues relevant to your current request have been considered before.

To use this function, click on the "Full Decision Text" option before searching for your keyword(s).You can also use the advanced search options to narrow your search further.

 

 
Other FOI News
Silverglobe

Scotland

  • Commissioner discusses value of FOI
    Rosemary Agnew wrote a comment piece for Scotland on Sunday, on the eve of the publication of her 2011/12 Annual Report. Read Rosemary's article.

  • Amendment Bill Briefing
    The Scottish Parliament's Information Centre has published a briefing on the FOI Amendment Bill for MSPs. The briefing provides information about the provisions of the Bill and a summary of key points raised during the recent consultation. Read the briefing at: http://scottish.parliament.uk/parliamentarybusiness/53960.aspx

  • FOI and Archives
    Rosemary also recently met Irene O'Brien and Gerry Slater of the Scottish Council on Archives (SCOA), to discuss areas of common interest. Rosemary gave support for the Archive and Records Management Services Quality Improvement Framework, which aims to encourage the development of strong records management practices. A report on the meeting is available in the recent edition of the SCOA's Broadsheet magazine. See: www.scottisharchives.org.uk/broadsheet/18/issue18.pdf

  • Successful screening for Campaign
    The Campaign for FOI in Scotland celebrated International Right to Know Day (28 September) with a free screening of All The President's Men at the GFT in Glasgow. The well-attended screening was followed by a debate at which members of the public shared their own views on the importance of openness and transparency for Scottish society.

UK and Ireland

  • Anonymisation Code of Practice
    The (UK) Information Commissioner has published a draft Code of Practice which advises how to assess the risks of identification of individuals through the release of information, and how to anonymise personal data. The code is currently open for consultation. See: www.ico.gov.uk/about_us/consultations/our_consultations.aspx

  • FOI scrutiny report published
    The Westminster Justice Select Committee has published a report following its post-legislative scrutiny of the Westminster FOI Act. The report strongly supports the underlying principles of FOI, and rejects the calls made by some consultees for a tightening of certain exemptions or a radical overhaul of fees. Read the Justice Committee's Report.

  • Public interest report
    The Carnegie UK Trust has published a report exploring the public's perception of the "public interest". The report has a particular focus on the "public interest" in relation to journalism, but its considerations are applicable in a number of wider fields, including FOI. The report, "Voicing the Public Interest", is available at: www.carnegieuktrust.org.uk/publications/2012/voicing-the-public-interest

  • New veto issued
    Attorney General, Dominic Grieve, issued a ministerial veto following a ruling by the Upper Tribunal (formerly the Information Tribunal) requiring the release of correspondence made by Prince Charles to a number of Government Departments. It has been reported that the Guardian, which made the original request, is planning to judicially review this veto decision. Read the veto and statement of reasons.


    The House of Commons Library has produced a briefing exploring the five occasions the ministerial veto has been used in Westminster and summarising the use of equivalent veto powers overseas. Read the briefing at: www.parliament.uk/briefing-papers/SN05007

  • Email appeal dropped
    The Department of Education has abandoned its appeal against a ruling by the Information Commissioner that official information stored in the private emails of the Education Secretary is accessible under FOI. See: www.bbc.co.uk/news/uk-politics-19775763

Around the world

  • International FOI ratings
    Two international civil society organisations have rated the FOI laws of 89 countries. Serbia tops the list, and the top 20 countries have newer laws, reflecting the progress made in international standard-setting in recent years. The UK ranks 25th in the list, with no independent rating given for the Scottish law. See: www.rti-rating.org/index.php

  • Open data and FOI
    The website www.freedominfo.org has published an interesting report on the competing agendas and priorities of open data and FOI enthusiasts. Read the report here: www.freedominfo.org/2012/09/open-data-foi-communities-show-signs-of-convergence/

  • Open Government Partnership video
    As noted earlier, Rosemary addressed an Open Government Partnership (OGP) conference in Dubrovnik earlier this month. The OGP has produced a short animated video introducing its work which is available at: www.youtube.com/watch?v=LijchWVlirc&feature=youtu.be

  • Parliamentary Transparency
    A new website aims to bring together organisations and individuals from around the world who are working to make their parliaments more open, accountable and transparent. See: www.openingparliament.org/

  • New US Request website
    Six US Federal agencies have created a joint website that allows the public to make, monitor and manage FOI requests and to search through a disclosure log of previously answered requests.
    https://foiaonline.regulations.gov/foia/action/public/home
 
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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