News and Commentary from the Scottish Information Commissioner

News and commentary from the Scottish Information Commissioner
April 2013

 
Commissioner's Commentary
Photo of Rosemary Agnew

The end of a financial year often brings a flurry of new announcements and activity from public sector organisations. This is certainly the case for us as we publish new guidance and provide updates on FOI developments.

In this newsletter we outline a number of important recent developments, including the publication of a new briefing on the FOI Amendment Act, news of our plans to gather statistical data on request handling (including internal reviews), updated guidance on dealing with vexatious requests, and details of a new conference from the University of Dundee's Centre for FOI.

The FOI Amendment Act - what it means for you

In July 2012, one of my first formal submissions as Commissioner was responding to the Scottish Parliament Finance Committee's scrutiny of the FOI Amendment Bill. That Bill finally finished its progression through the Parliament on 16 January this year, becoming the Freedom of Information (Amendment) (Scotland) Act 2013 (the Amendment Act).

It's been a fascinating and eventful journey. The Bill that was eventually passed is very different from the one Ministers originally proposed. Along the way, we've seen the welcome decision by Ministers to drop plans for a new absolute exemption, and the late-stage introduction of important new measures which makes Ministers accountable to Parliament in their use of powers to designate bodies under FOI.

But how will the Amendment Act change our existing FOI Act? And what will this mean in practice for FOI practitioners and requesters?

In summary, it makes the following key changes to the FOI Act:

  • The window for section 65 prosecutions in relation to the concealment or destruction of information is extended

  • Authorities will be able to "neither confirm nor deny" the existence of personal data (section 18)

  • Section 25(3) will clarify that information available under an authority's publication scheme is exempt

  • The path is cleared for the lifespan of certain exemptions to be shortened (section 59)

  • There is a new requirement for Ministers to report to Parliament on the use of the power to designate additional bodies (section 7A), and consult more widely on designation orders (section 5(5))

The Amendment Act has met its purpose of strengthening and clarifying FOI in Scotland.

The Act doesn't itself bring any new bodies under FOI, but it does impose new requirements on the Scottish Government to report on the use of its designation powers. Nicola Sturgeon, Deputy First Minister, announced to Parliament that Ministers intend to move quickly with a section 5 designation order. Indeed, Ministers have already written to local authorities informing them of the planned designation of "arms-length" bodies providing culture and leisure services. Beyond this, the Deputy First Minister has also committed to explore the designation of other local authority trusts and public sector contractors. Watch this space...

For those that want to know more, we've produced new guidance which provides more detail on the changes brought about by the Amendment Act, also showing how these changes will amend Scotland's FOI law.

PDF icon  Amendment Act Briefing Note - Updated December 2013 (PDF - 142kB)

 

FOI statistical return

I announced at the Holyrood Conference on 31 January that we will be writing to public authorities across Scotland asking them to provide us with statistical data about the FOI requests they receive. Many of my conversations with public authorities over the last year have reflected on the value of such statistics in helping to provide a truer picture of FOI in Scotland.

Last week I wrote to chief executives to notify them that this is the pilot year of data collection. I provided a schedule of the statistics we will be asking for on a quarterly basis from 1 April 2013. These statistics are mainly those recommended for collection on the Scottish Ministers' Section 60 Code of Practice.

The statistics will be published online. I expect this information to be particularly useful to authorities and to my own office, but there will be others, such as researchers who will find it of interest. The publication of this data will, I am sure, help to increase our understanding, inform debate, and support the delivery of good practice. I fully expect that there will be lots of issues about the data which need to be ironed out following this first year of collection, but I look forward to the discussions!

Excel File Dowload the schedule of statistics to be collected here (Excel - 22.9kB)

 

Updated Guidance on Vexatious Requests

We published updated guidance on dealing with vexatious requests under section 14 of the FOI Act on 1 April. The revisions bring the guidance in line with our experience of dealing with appeals, and introduce a greater degree of flexibility in the use of section 14(1). In particular, the revisions make clear that "significant burden" on an authority should be one of a number of factors to be considered when assessing whether a request is vexatious, rather than a first test.

Importantly, the guidance also emphasises that authorities must not use the section 14 provisions lightly. FOI ensures that the public has a right to the information held by public bodies, and authorities must take great care when considering whether an individual should be denied of this right. Where a section 14 case is appealed to me, I will expect an authority to provide robust evidence to support its claim.

You can view the updated guidance here.

 

FOI Practitioners' Conference

On 22 May the Centre for FOI is holding a conference for FOI practitioners. The conference, which will be held at the University of Dundee, will provide practical learning sessions for those working in FOI, focussing on new developments, key topics, and the sharing of learning, ideas and experience.

Details of the full programme and cost will be announced shortly. To receive updates as they become available, you can register your interest by emailing centrefoi@dundee.ac.uk.

Rosemary Agnew's signature

Rosemary Agnew
Scottish Information Commissioner

 
At a glance - March 2012 to February 2013

Appeal Statistics

Excel File Dowload accessible version of chart data (Excel - 26.7kB)

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

No doubt you are already on the mailing list for our weekly round-up of the key learning points from the decisions published each week. If not, you can register here to receive the round-up and you can also view previous round-ups here. The round-up provides up-to-the-minute learning from decisions that we think is important to authorities and requesters alike.

Key themes from the round-ups issued during January and February are:

Good communications reduce the likelihood of appeals
There were a number of decisions issued over the period which might have been resolved long before an appeal was made if there had been better communication between the requester and the authority.

While FOI is, by its nature, a legally based process, taking a "plain-English" approach to your dialogue with requesters can help them to understand what information is and isn't held by the authority, or why a particular decision has been taken. Requesters who are able to understand the reasoning underpinning a response are more likely to be satisfied with that response, while good communications also help to build trust in the longer term.

Similarly, for requesters, ensuring that requests are clearly defined, and providing relevant clarification when asked for, makes it far easier for the authority to identify information and respond accurately.

Ineffective communications were a feature in a number of recent decisions including 213/2012, 003/2013, 008/2013 and 022/2013. Had better communication taken place, these cases may have been resolved long before they were appealed.

The Decisions Database is an invaluable resource
Alongside the decisions round-up, our Decisions Database is an invaluable resource when dealing with information requests. You can search the database by FOI exemption or EIR exception, and also refine your search based on the outcome of the decision.

While each case must be considered on its merits, understanding how the Commissioner has viewed a similar case in the past can help you gain a clearer understanding of the issues, and may help either reinforce or discount the application of an exemption.

 

Practice Assessment Update

Our most recent practice assessment report was published on 15 February, reviewing the FOI and EIR practice of South Ayrshire Council. This is the first of a new style of reports, providing the headline findings in a more digestible format. We found strong FOI practice in several areas, including: comprehensive FOI practices and procedures; and strong technical knowledge of FOI, supported by a programme of training and briefings, including an e-learning package.

Our recommendations are focused on helping the Council to address its compliance with timescales for responding to requests, in particular the importance of performance reporting to the management team and an escalation process for late responses.

The Assessment Report can be viewed here:

PDF icon Assessment Report - South Ayrshire Council (PDF 197kB)

 
News in brief
Thank You Image

Learning and development survey
A big thank you to all the FOI staff who took part in our recent survey of FOI learning and development needs. We received a fantastic response, with 288 responses received (a 51% response rate).

Some very interesting conclusions are emerging, and we'll be publishing a full report detailing the findings of the survey shortly. Keep an eye on our website, or sign up to our RSS feeds to read the report as it is published.  We'll also provide a summary of findings in the next edition of Inform.

 

Model Publication Schemes - 2013 renewals
The process of updating publication schemes is now well underway for bodies due to renew their schemes this year - the police, universities, colleges, councils and other local authority bodies.

All of the authorities due for renewal, plus the new single police and fire services, have informed us that they will be adopting the Commissioner's Model Publication Scheme 2013, rather than developing their own bespoke scheme. Over the coming months, authorities will be working to produce their guides to the information they publish in accordance with the model scheme, with support and guidance from our office.

 Find out more about the publication scheme process here.


Events update
The Commissioner and her staff have spoken at a number of recent conferences, workshops and events.

Rosemary's recent engagements include updating local authority lawyers and archivists on FOI developments at the SOLAR conference and the In-House Lawyers Group, participating in two recent discussions on enhancing democratic processes in Scotland, and updating councillors and staff from Scottish Borders Council on FOI and related issues.

Rosemary and her staff also delivered plenary and workshop sessions at the annual Holyrood FOI Conference on 31 January.

Staff also delivered a successful workshop introducing FOI rights to voluntary sector staff in Edinburgh, attended by representatives of a range of organisations, including those working in the fields of domestic violence, offender support, animal welfare and gender issues.

Forthcoming events include engagements for the Commissioner at the Ombudsman Association Conference in May, the Association of Chief Police Officers Conference in June, and the International Conference of Information Commissioners in Berlin in September.

View our online events diary here.

 

FOI Webinar for FE Colleges

We are running a FOI "webinar" for further education colleges, in partnership with the College Development Network, on 30 April 2013. Entitled "A practitioner's guide to FOI", the hour-long webinar is aimed at FOI practitioners and managers in FE colleges.

The webinar will cover: FOI obligations; how to deal with requests; publication schemes; and where to go for support.

For more information and to book a space visit: http://events.collegedevelopmentnetwork.ac.uk/events/show/4660

 
Don't Forget...
Light Bulb

There are several videos available through our website which you can download and use in internal training sessions, embed onto your website to help explain FOI - or just watch!

These include a short animated guide to using FOI, as well as a range of user case studies, showing how FOI has helped requesters in the past.

View the full range of videos here.

 
Other FOI News
Silverglobe

Scotland

  • Scotland's INSPIRE regulations, which govern access to spatial data, were amended in November by the INSPIRE (Scotland) Amendment Regulations 2012. The amendments largely deal with issues of interoperability - ensuring that relevant datasets can be easily combined. See: www.legislation.gov.uk/ssi/2012/284/contents/made

  • A new online community has launched, aimed at anyone involved in information management in the public sector Scotland. The community aims to provide a forum for the sharing of support and advice. The Records and Information Management Scotland forum is accessible through the Local Government Association's Knowledge Hub ? https://knowledgehub.local.gov.uk

 

UK and Ireland

  • The Westminster Justice Committee has published a report examining the functions, powers and resources of the Information Commissioner. The report raises concerns about a potential shortfall in data protection funding as a result of EU reforms, while also noting that FOI funding for FOI has been cut by 23%, with a further cut planned next year.

  • The BBC has revised the webpage that collates the stories BBC journalists have generated using FOI.
    See: www.bbc.co.uk/news/uk-politics-21768148

  • Information Commissioner Christopher Graham has published his 3-year Corporate Plan.
  • ActNow Training has published a useful review of UK cases - Commissioner and Tribunal - involving the disclosure of staff names.
    http://actnowtraining.wordpress.com/2013/03/01/disclosure-of-staff-names-under-foi/

  • http://informationsharing.co.uk/ is a resource toolkit aimed at helping the public sector to improve services by sharing information safely. The site provides a range of downloadable tools and resources to encourage open data and information sharing initiatives.

  • The Westminster Parliament held a debate on the Commons justice committee's post-legislative scrutiny report of the UK FOI Act in January. During the debate, Justice Minister Helen Grant confirmed that the Government hoped to bring forward secondary legislation on extension within two years, while also stating that Ministers would be looking carefully at the "disproportionate burden" of "industrial users" of the Act. Read the debate here.

  • The Centre for Public Scrutiny has published a report exploring the future and benefits of transparency for England. The report concludes that transparency makes for better decision making, that dialogue and collaboration are key elements of transparency, and that open data on its own does not ensure accountability.

  • The UK Government has launched a two-week consultation period on its open Government Action Plan, until 15 April 2013.  See:
    http://data.gov.uk/blog/ogp-uk-national-action-plan-self-assessment-report

Around the World

 
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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