News and Commentary from the Scottish Information Commissioner

News and commentary from the Scottish Information Commissioner

November/December 2013

 
Commissioner's commentary
Photo of Rosemary Agnew

As Christmas and the New Year approach most of us find ourselves torn between the mad rush to get things done and contemplating the events of the year past. We also find ourselves coping with the onset of winter weather: something with which many of you who booked for this year's Holyrood FOI Conference will be only too familiar.

The conference date of 5 December was a day when Scotland was hit by severe storms, leading to treacherous conditions for travellers, and widespread road and rail closures.

Despite this, the majority of delegates and speakers successfully battled the weather to attend the conference, although some, including yours truly, ended up cutting it a little fine with their arrival time!

Against that backdrop it was perhaps fitting that the main focus of the conference was on the Environmental Information (Scotland) Regulations (the EIRs), the law that provides a right of access to the environmental information held by Scottish public bodies. The travel chaos underlined how dependent we are on our environment (in the widest sense), and how vital accurate and reliable environmental information can be in helping us to plan and organise our daily lives.

Speakers explored these themes during the day, looking at: the key differences between the EIRs and FOI; the impact access to environmental information can have for individuals and communities; and why it is so important that authorities identify and respond to EIR requests quickly and accurately.

It is fair to say that this is an area where we in Scotland could do better. Awareness of the EIRs remains low, among both requesters and public authorities. This point was made by the Deputy First Minister, Nicola Sturgeon, in her speech to delegates.

The issue of awareness is most acute for public authorities, as it is they who are responsible for responding to information requests under the appropriate legislation. Responding to a request under the wrong regime can lead to a different outcome, and can mean the difference between release or refusal. This in turn can disadvantage requesters, and may cause expensive administrative delays for authorities as they often need to start the process over, re-considering a request from the beginning under the correct legislation.

For requesters, an awareness of the EIRs is less critical, but it is still important. Requesters do not have to know about their information rights to exercise them, but awareness of the EIRs will help them make more informed requests that can be dealt with more effectively; and which may ultimately lead to more information being disclosed more quickly.

The University of Dundee's Professor Colin Reid urged conference delegates to always think of the EIRs first in their request handling. His advice was to only process a request under FOI once you are satisfied that it doesn't fall within the scope of the (wide) definition of environmental information.

Delegates were directed to the EIR guidance available on my website, which contains detailed information on handling requests under the EIRs and a flowchart which sets out the steps to follow when processing a request. I urge you to read this guidance and assess whether you are doing all you can to ensure that EIR rights are being recognised and respected in your authority.

 In the coming weeks and months (and probably years) we will be looking at ways in which we can further support authorities (and requesters) to work more effectively with the EIRs. If you have any comments or suggestions to help us with this, we are very keen to hear them.

In the meantime, all of us here in St. Andrews wish you a very merry but restful Christmas and a Happy and lively New Year.

 

Rosemary Agnew's signature

 Rosemary Agnew
Scottish Information Commissioner

 
Compliance, good practice and lessons learned
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The Commissioner's Decisions Round-up provides a weekly summary of all the decisions published that week, along with details of the key learning points for both FOI requesters and authorities.

Key issues from recent Round-ups include:

Authorities: remember the duty to advise and assist
There were a number of decisions that highlighted when it would have been appropriate to take action under the section 15 duty to advise and assist. These included:

  • where a request was legitimately refused on cost grounds, but it would have been appropriate for the authority to provide advice on what might have been provided within the upper limit
  • where it would have been appropriate to engage with the requester early to clarify an ambiguous request, rather than respond on the basis of an (incorrect) assumption.

Requesters: FOI only applies to recorded information
On three recent occasions our round-ups have included reminders that FOI only covers information which is recorded and held. When requesting information, try to word your requests to reflect the information that is likely to be held in a recorded format.

The scope of a search will depend on the circumstances
The Commissioner will consider what is reasonable in the circumstances when deciding whether a search for information was adequate. For example, where a request is for something that an authority is highly unlikely to hold, the search may be less in-depth than for a request for information related to the functions of, or services provided by, that authority.

Consider Aarhus when applying the EIRs
Decision 225/2013 reminds us that authorities should consider guidance provided under the Aarhus Convention and its associated EU Directive, when interpreting the EIR exceptions. You can view the second edition of the Aarhus guidance here.

Failing to respond may lead to problems later
The Commissioner's concerns about the increasing number of failures to respond by authorities has been well documented in her 2012/13 Annual Report and elsewhere. A Decisions Round-up issued in early November provided helpful advice for authorities about how to avoid failures to respond. We also plan to lay a special report before the Scottish Parliament before the end of this financial year, setting out why compliance with statutory timescales is so important and necessary for effective exercising of rights, and exploring the impact of poor practice on authorities and requesters.

 

 

 

 
                   
           

 

 
At a glance - 2013/14

 Date

 Enquiries

New Applications 

Total number of valid cases closed 

Closed with a decision notice

Settled / withdrawn etc during investigation 

 Apr/May

 333

96

70 

39

31

 Jun/Jul

318

108

76

56

20

 Aug/Sep

 344

88

74

59

15

 Oct/Nov

 407

99

76

55

21 

 Year to Date

1,402

391

296

209

87

 

We have closed more cases so far this year (2013/14) than in any previous year. So far we have closed 296 cases (accepted as valid for investigation) in the period April to November. The previous highest was 2011 when 260 were closed in the same period.

While this is a significant achievement, numbers are not the most important thing. We are more committed than ever to ensuring that requesters and their rights to access information lie at the heart of what we do. We seek to make decisions in the optimum time so requesters receive information (or reasons for not receiving it) sooner rather than later. But this is not at the expense of fair and robust decision-making. During an investigation we gather the information we need to enable a balanced and fair decision to be taken. We are well aware that FOI legislation makes it mandatory to seek only the views of public authorities, so we are diligent in ensuring that we seek and consider views from requesters, particularly when authorities change the exemptions or supporting arguments during our investigations.

So far, 65% of all decisions have been for, or partially for the applicant (39%, for and 26% partially for), while 35% have been for the authority.  

You can read all the decisions published this year, and all those from previous years, on our decisions database.

 
Our news in brief
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Learning and development strategy
We published our learning and development strategic framework in October.  The framework is informed by the outcomes of our learning and development survey, carried out earlier this year.   It is a five year strategy, which covers a range of issues, including: supporting senior leaders get behind FOI; defining good practice; building expertise and professional recognition; and developing understanding of the EIRs.  You can read the strategy here.

Out and about
Next year will see the Commissioner’s staff deliver the first in what is planned to be an ongoing roadshow programme around Scotland.  The roadshows will visit areas around the country to deliver a range of FOI training and awareness-raising content.  We will be targeting these events at a range of audiences, including public authority FOI staff, chief executives and senior managers, local voluntary sector organisations and local media. 

The first roadshow is scheduled to take place in Aberdeen on 7 February 2014, with a follow-up event scheduled in Ayrshire shortly after.  If you’d like to know more, get in touch with us at enquiries@itspublicknowledge.info.

FOI and EIR statistics
The second data return from our statistics collection project has now been published.  The combined data from the first two returns reveal that Scottish public authorities reported receiving over 30,000 FOI and EIR requests in the six months since April 2013.  Of these, 15% were requests for environmental information.    

Our office received 292 appeals in the same period, only 0.9% against the requests reported.  We continue to work with authorities to make the data consistent and robust so that the true value of the dataset can start to be realised. We anticipate that it will be at least another six months before the dataset is suitable for detailed analysis.

Leisure trusts prepare for FOI
The Commissioner is working with Edinburgh Leisure to host a one-day training event for leisure and cultural trusts on 16 January 2014.  These bodies were the subject of Ministers’ first statutory order to extend scope of the FOI Act.  The event, to be held at the Edinburgh Indoor Climbing Arena, will help these bodies prepare to meet their new obligations under the FOI Act from 1 April 2014.  Experienced FOI practitioners and the Commissioner’s staff will share tips on how to set up an FOI function, prepare a publication scheme, and deal with FOI and EIR requests.  Contact us for more information.

New rules for re-use
The EU adopted the revised Re-Use of Public Sector Information Directive in June 2013.  The revised Directive must be transposed into UK legislation by July 2015. The National Archives are leading the work to replace the existing Re-use of Public Sector Information Regulations 2005 in time. 

The new Directive will make it mandatory in most cases for public authorities to permit re-use of any accessible information (including information released under FOISA and the EIRs), and for most charges for re-use to be set at marginal cost.  The revised Directive also requires more formal regulation than at present, particularly an impartial review body that can make binding decisions.   

Requests about referendum issues
Given that the independence referendum will be held in only ten months, we would remind public authorities of the need to respond promptly to all information requests around referendum issues. They also need to ensure that requesters are informed of their rights to review and appeal. 

The Commissioner recognises that this is one of the most important decisions many citizens will take in their lifetime, and that information to make an informed decision is critical.  With that in mind the Commissioner has committed resources to investigating any referendum-related appeals we receive as quickly as the law and fairness to all parties permit.

Conference report
Despite the weather problems, the 11th Annual Holyrood FOI conference was a success, with most of the speakers managing to overcome the weather conditions and reach the venue.  Deputy First Minister Nicola Sturgeon reinforced the Government’s commitment to FOI by confirming that the current designation of local authority trusts under FOI was very much the first step in an ongoing process.  Delegates also discussed and debated a range of topics, including the important role of access to information in community engagement, engaging leaders and senior managers in FOI, and what can be done to raise the profile of the EIRs.

A new look
Over the coming months we’ll be updating and refreshing our visual materials. You will already have had a taster of this in the Annual Report.  Expect to see other resources, including our web pages, guidance, newsletters and decisions, follow suit.  We’d love to hear what you think of our revised resources.  Do get in touch to tell us.

 
Don't forget...
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Our FOI Tips for Requesters page provides a range of handy tips to help requesters get the most out of their FOI requests. Requesters can refer to this when drafting a request and public authorities can also point requesters to it for independent advice on how to frame a request effectively.

Read the tips at: www.itspublicknowledge.info/tipsforrequesters

 
Other FOI News
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Scotland

  • Following the passing of the FOI Amendment Act, the Scottish Government laid a draft section 59(1) order in November. This order proposes to reduce the lifespan of each of the exemptions at section 58(1) of the FOI Act from 30 years to 15 years, with the exception of s36 (confidentiality) (to be retained at 30 years); and section 41(a)(communications with Her Majesty, etc). Read our briefing for more information.
  • The Scottish Government's Referendum White Paper, published on 26 November, proposes that, in the event of a "yes" vote, the functions of the Scottish Information Commissioner will be extended to include data protection, currently the responsibility of the UK Information Commissioner.
  • Citizens Advice Scotland (CAS), the umbrella body that serves individual Citizens Advice Bureaux across Scotland, has been designated as a public authority under the FOI Act for the consumer helpline, extra help service and policy functions transferred from the National and Scottish Consumer Councils. This is the first time (we are aware of) that a voluntary sector body has been made subject to FOI.

UK

  • Following its privatisation on 13 October, the Royal Mail ceased to be subject to FOI on 21 October 2013.
  • The Open Government Partnership (OGP) held an annual summit in London in October, which brought together 1,000 delegates from 60 countries, including Commissioner Rosemary Agnew. The event explored the relationship between openness and a range of other factors, including better public services and economic growth. For more information visit www.opengovpartnership.org.

  • On the eve of the OGP (see above), 76 civil society organisations wrote to the UK Government calling for it to drop proposals to restrict FOI. The coalition government is currently considering several proposals aimed at reducing the impact of FOI, including a reduction in the upper cost limit for requests, and the ability to charge for "thinking time".

  • Backbench MP Grahame Morris has tabled an Early Day Motion calling for the extension of the UK FOI Act to cover public services contracted out to the private or third sectors. The motion has so far attracted 51 signatories.

World

 
Contact us
Rosemary Agnew and her team 2012

The Commissioner's staff are pleased to provide information, support and advice on any issue relating to freedom of information. We also welcome your feedback, including about our website and Inform newsletter. Contact us at:

Scottish Information Commissioner, Kinburn Castle, Doubledykes Rd, St Andrews, KY16 9DS

Website: www.itspublicknowledge.info

Telephone: 01334 464610

Email: enquiries@itspublicknowledge.info

Fax: 01334 464611

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