Freedom of information in context

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Freedom of information in context

• The Freedom of Information (Scotland) Act 2002
  provides a right to access information held in
  Scottish public authorities. This should
• lead to increased accountability
• lead to the breakdown of a culture of secrecy and
• ensure that public bodies look outward to the
  communities they serve
• Module 1

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Freedom of information in context

• Freedom of information underpins wider
  aspirations of making public authorities
  accountable, building public trust in those
  authorities and assisting citizens to engage with
  decision making processes which affect them

Kevin Dunion Scottish Information Commissioner
Module 1
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Freedom of information in context

• Questions of disclosure may require a balancing
  act between the public interest in disclosure and
  other interests which require that information be
  withheld
• Information should only be withheld where the
  interest in withholding it outweighs the interest
  of openness
• Module 1

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Introduction to FOI Scotland

• The Freedom of Information (Scotland) Act 2002
  (FOISA) became law on 28 May 2002
• Scottish Information Commissioner appointed
  February 2003
• Publication schemes phased in from June 2004 to
  November 2004
• Full implementation 1 January 2005
• Module 2

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Outline of the FOISA

• An authority subject to the FOISA must
• Publish information under a publication scheme
  which has been approved by the Scottish
  Information Commissioner
• Respond to specific requests for recorded
  information held by it and supply the information
  requested unless an exemption applies
• Ensure that the records it holds comply with
  records management standards
• Module 2

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Information available before the FOISA comes into
effect

• Information available under other provisions e.g.
  public registers
• Information available under non-statutory codes
  of practice
• Scottish Executive
• NHS Scotland
• UK Government
• Module 2

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Scottish Executive code of practice on access to
information

• Adopted by the Scottish Executive in July 1999
  and reflects the Executives commitment to
  openness in Scottish public life
• Applies until 1 January 2005
• Complaints of non-compliance are made to the
  Scottish Information Commissioner
• Covers publication of information, response to
  requests and exemptions
• Module 2

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Who is subject to the FOISA?

• The Scottish Parliament
• The Scottish Executive
• Scottish local authorities
• NHS Scotland
• Scottish police forces
• Scottish institutes for higher and further
  education
• Other Scottish public bodies e.g. The Parole
  Board for Scotland
• Module 3

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Who is subject to the FOISA?

• Any company wholly owned by the Scottish
  Ministers or any other Scottish public authority
• Private bodies but only if
• They are exercising functions of a public nature
  or providing public services under a contract AND
• They are designated by Scottish Ministers by an
  order under the FOISA
• Module 3

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Who is subject to the FOISA?

• The FOISA describes the listed authorities as
  Scottish public authorities. In the remainder of
  the slides, unless the context requires, they are
  referred to simply as authorities or public
  authorities.
• Module 3

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Relation with the UK Freedom of Information Act
2000

• Freedom of information is a devolved matter
• The UK Act covers bodies subject to the UK
  Parliament
• Some bodies which operate in Scotland will be
  subject to the UK Act
• The FOISA and the UK Act have the same structure
  and effect but there are some differences between
  the two Acts
• Module 3

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Publication schemes

• Publication schemes will be of considerable
  benefit to authorities they will significantly
  reduce the administrative burden of dealing with
  freedom of information requests, publicise the
  work done by public authorities and encourage a
  spirit of openness and accountability throughout
  the public sector in Scotland
• Guide to Publication Schemes under the
  Freedom of Information ( Scotland) Act 2002
  Office of the Scottish Information Commissioner
• Module 4

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Publication schemes

• A Scottish public authority must
• Adopt a publication scheme
• Have it approved by the Scottish Information
  Commissioner
• Publish information in accordance with the scheme
• Maintain the scheme
• Review the scheme from time to time
• Module 4

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Publication schemes

• Timetable for submission
• Scottish Executive, police and local government
  - 28 February 2004
• NHS and educational establishments - 31 May 2004
• Remaining authorities - 31 August 2004
• Module 4

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Publication schemes

• Schemes must specify
• The classes of information which the authority
  publishes or intends to publish
• The manner in which the information is to be
  published and
• Whether the published information is available
  free of charge or for payment
• Module 4

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Publication schemes

• In adopting and reviewing the scheme an authority
  must have regard to
• Allowing public access to its information
• Providing information on the provision of
  services, including the cost and standard of
  services
• Providing information on facts or analyses which
  are the basis for important decisions and
• Publishing reasons for decisions it makes
• Module 4

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Publication schemes

• The Commissioner may prepare or approve model
  schemes prepared by others
• An authority which adopts an approved model does
  not require specific approval from the
  Commissioner as long as the model remains
  approved
• Module 4

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Records Management - Introduction

• Any freedom of information legislation is only
  as good as the quality of the records to which it
  provides a right of access. Such rights are of
  limited use if reliable records are not created
  in the first place, if they cannot be found when
  needed or if the arrangements for their eventual
  archiving or destruction are inadequate
• Module 5

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• Consequently all Scottish public authorities are
  expected to have regard to the guidance in this
  Code to ensure that they are managing their
  records effectively. For many authorities this
  will mean a significant culture change for all of
  their staff senior managers have a
  responsibility to lead and promote that change
• Code of practice on the keeping, management and
  destruction of records issued by the Scottish
  Ministers (Section 61 Code)
• Module 5

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Code of Practice on Records Management

• Covers both electronic and paper records
• Provides guidance on desirable practice in
  respect of
• Records management policies
• Records management training
• Management and destruction of records
• Transfer of records to the Keeper of the Records
  of Scotland
• Module 5

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Code of Practice on Records Management

• The Code is supplementary to the FOISA
• Failure to comply with the Code may lead to a
  failure to comply with the FOISA
• The Scottish Information Commissioner has an
  obligation to promote observance of the Code
• The Commissioner may serve a practice
  recommendation on an authority that does not
  comply with the Code
• Module 5

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Contents of the section 61 Code

• Records management should be
• recognised as a corporate function
• supported by appropriate allocation of staff and
  other resources including training
• supported by a records management strategy and
  policy covering electronic and paper records
• records should be actively managed throughout
  their lifetime
• records should be disposed of in accordance with
  the policy
• Module 5

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Records Management archive transfers

• Part 2 of the section 61 Code applies to
  authorities which transfer records to the
  National Archives of Scotland
• Part 3 of the section 61 Code applies to other
  authorities which transfer records to other
  public archives
• The Code sets out the appropriate procedures for
  access, review and transfer
• Module 6

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Rights of Access

• Anyone, anywhere can make a request under the
  FOISA
• Any information held in a recorded form is
  covered by the FOISA
• Access requests can be made by children who have
  sufficient understanding and a child over 12
  years is presumed to have such understanding
• Module 7

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Request for access

• Must be in writing or other permanent form
• Must state the name of the applicant and an
  address for correspondence
• Must describe the information which the applicant
  seeks
• May express a preference for the information to
  be provided in a specific way for example by
  providing copies
• Module 7

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Fees for information

• The authority does not have to charge a fee but
  may do so
• If a fee is to be charged the authority must tell
  the applicant of the proposed fee by sending a
  Fees Notice after it receives the request
• The fees which can be charged are to be set out
  in Fees Regulations
• Module 7

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Introduction section 60 Code of Practice

• The Act places a duty on public authorities to
  provide advice and assistance to applicants and
  potential applicants as far as it is reasonable
  to expect the authority to do so. An authority
  following the guidance in this Code in this
  respect will be deemed to have complied with its
  duty to provide advice and assistance.
• Module 8

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Section 60 Code of Practice

• The Code covers
• The provision of advice and assistance to those
  making requests for information
• The transfer of requests between authorities
• Consultation with interested parties
• Terms of contracts entered into by authorities
• How authorities should handle reviews and
  complaints
• Monitoring requests
• Module 8

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Section 60 Code

• The Code is supplementary to the FOISA
• Compliance with the Code means authorities have
  complied with the duty to provide advice and
  assistance
• The Scottish Information Commissioner has an
  obligation to promote observance of the Code
• The Commissioner may serve a practice
  recommendation on an authority that does not
  comply with the Code
• Module 8

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Dealing with requests

• The authority has an obligation to provide advice
  and assistance to applicants
• The authority must deal with requests within 20
  working days
• It may require the applicant to supply further
  information to enable it to find the information
  requested
• It does not have to comply with repeated or
  vexatious requests
• Module 8

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Access to Environmental Information

• Environmental information is very widely defined
  and the current definition covers
• The state of any water or air, flora, fauna, soil
  land or other natural site and
• Any activities or measures which either adversely
  affect or which are designed to protect any of
  the above
• Module 11

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Access to Environmental Information

• The Environmental Information Regulations 1992
  apply and not the FOISA
• Where a request is made
• for information which falls within the definition
  
• to a public body which has or is under the
  control of an organisation which has
  responsibilities in relation to the environment
• Module 11

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Access to Environmental Information

• The rules governing access are different in some
  ways from the FOISA
• The request does not have to be in writing
• The public authority has 2 months in which to
  respond to the request
• The authority is able to impose a reasonable
  charge for the supply of the information
• It is planned to introduce new regulations to
  remove these differences
• Module 11

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Exemptions from the right of access

• Information may fall outside the FOISA because it
  is held by the public authority on behalf of
  another
• Held in confidence from the UK Government or
• Information may be subject to an exemption from
  the right of access under the FOISA
• Module 12

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Exemptions from the right of access

• There are two kinds of exemptions
• Absolute exemptions and
• Non-absolute exemptions
• Module 12

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Exemptions from the right of access

• Absolute exemptions

Where an absolute exemption applies the public
authority does not have to consider the public
interest in the disclosure of the information
before it refuses to supply it Module 12
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Exemptions from the right of access

• Non- absolute exemptions

Where a non-absolute exemption applies the public
authority must always consider whether the public
interest in providing the information is not
outweighed by the interest served by the
exemption. If this is the case the information
must be supplied Module 12
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Absolute exemptions

• Information which the applicant can reasonably
  obtain because it is available to members of the
  public by another route being
• Available under the authoritys publication
  scheme
• Made available under an enactment or
• Made available by the Keeper of the Records of
  Scotland
• Module 13

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Absolute exemptions

• Information in respect of which there is a legal
  prohibition on disclosure being
• Prohibited under an enactment
• Incompatible with a European Community obligation
  or
• Would be a contempt of court
• Module 13

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Absolute exemptions

• Information which is subject to an obligation of
  confidence that is
• The information obtained by a public authority
  from another person (which may include another
  public authority) and
• The person who made the disclosure could take
  court action for an order to stop the public
  authority disclosing the information
• Module 14

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Absolute exemptions

• Information which is contained in court records
  being a document
• Served on a public authority or placed with the
  court or created by a court for the purpose of
  proceedings or
• Held by a public authority solely because it was
  placed with or created by a person conducting an
  arbitration or inquiry for the purpose of the
  arbitration or inquiry
• Module 14

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Absolute exemptions

• Information which relates to a living individual
  and the application for access to the information
  is made by that individual
• In those circumstances the individual will be
  entitled to access the information using his or
  her rights under the Data Protection Act 1998
• Module 14

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Absolute exemptions

• Information which relates to a living individual
  other than the applicant for the information
  will be exempt where the disclosure of the
  information would breach one of the data
  protection principles contained in the Data
  Protection Act 1998
• Module 14

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Non-absolute exemptions

• Information derived from a research programme in
  respect of which
• There is an intention to publish and
• Premature disclosure would substantially
  prejudice the programme or the interests of the
  participants
• Information held by the authority or another in
  respect of which
• there is an intention to publish
• within the next 12 weeks and
• it is reasonable not to give access pending
  publication
• Module 13

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Non-absolute exemptions

• Information the disclosure of which would
  prejudice substantially relations between any
  administration in the UK and any other such
  administration
• Information held by the Scottish Administration
  relating to
• Formulation or development of government policy
• Ministerial communications or the operation of
  any private office
• The provision of advice by Law Officers
• Statistical and factual information should be
  provided once decisions have been taken
• Module 13

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Non absolute exemptions

• Information the disclosure of which would or
  would be likely to prejudice substantially
• collective responsibility of Scottish Ministers
• inhibit the provision of advice or exchange of
  views or
• Otherwise prejudice substantially the effective
  conduct of public affairs
• Module 13

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Non absolute exemptions

• Information
• Which a member of the Scottish Executive
  certifies is required to be withheld in order to
  safeguard national security
• The disclosure of which would prejudice
  substantially the defence of the British Isles or
  any colony or the capability effectiveness or
  security of the armed forces or those
  co-operating with them
• Module 13

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Non-absolute exemptions

• Information
• The disclosure of which would prejudice
  substantially
• Relations between the UK and any other State or
  international organisation or court
• The interests or the protection of the interests
  of the UK abroad
• Which is confidential information obtained from
  another State or an international organisation or
  court
• Module 13

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Non absolute exemptions

• Information
• Which constitutes a trade secret or
• The disclosure of which would prejudice
  substantially the commercial interests of any
  person
• The disclosure of which would prejudice
  substantially the economic or financial interests
  of the whole or part of the UK
• Module 13

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Non absolute exemptions

• Information held by a Scottish public authority
• For criminal investigations or proceedings
• For enquiries into sudden deaths and fatal
  accidents
• For civil proceedings related to the above or
• From a confidential source in connection with
  legal regulatory matters
• Module 14

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Non absolute exemptions

• Information the disclosure of which would
  prejudice substantially a range of regulatory,
  criminal and judicial matters listed in section
  35 for example the operation of immigration
  controls or the maintenance of good order in
  prisons or other institutions where people are
  detained
• Module 14

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Non absolute exemptions

• A deceased persons health record
• Information which relates to a living individual
  where the request is made by a person other than
  that individual if
• The information would not be disclosed to the
  individual him or her self or
• The individual has lodged an objection which has
  been accepted by the authority
• Module 14

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Non absolute exemptions

• Environmental information which is available
  under other legislation
• Information the disclosure of which would
  endanger the physical or mental health or safety
  of an individual
• Module 14

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Non absolute exemptions

• Information the disclosure of which would
  prejudice substantially the exercise of audit
  functions of a Scottish authority or the
  examination of the economy, efficiency and
  effectiveness with which the authorities use
  their resources
• Module 14

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Non absolute exemptions

• Information which relates to communications with
  Her Majesty or the Royal Household or
• The exercise of the honours system
• Module 14

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Data Protection Act 1998 (DPA)

• Data protection is not a devolved function - the
  1998 DPA applies throughout the UK
• The DPA was passed to give effect to a
  requirement of the European Community so the UK
  law has to meet those standards
• The DPA sets standards for the use and handling
  of any personal data, gives individual rights and
  has an enforcement regime
• Module 15

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Data Protection Act 1998

• The standards for processing personal data are
  set out in the Principles which state that
  personal data must be
• Fairly and lawfully processed
• Processed for limited purposes
• Adequate, relevant and not excessive in relation
  to the purpose of the processing
• Accurate and not kept for longer than is
  necessary for the purpose
• Module 15

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• Processed in accordance with the rights of data
  subjects
• Held securely and not disclosed without proper
  authority and
• Not transferred to countries outside the European
  Economic Area without adequate protection being
  provided to the data
• Module 15

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Data Protection Act 1998

• Data controllers must notify the (UK) Information
  Commissioner of the processing they carry out.
  The notification is entered on a public register
• The UK Information Commissioner
• Gives advice and assistance on the DPA
• Deals with complaints of non-compliance from the
  public
• may take action against data controllers for
  breach of the DPA
• Module 15

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Data Protection Act 1998

• It applies to personal data that is information
  about a living individual
• It applies to automated information or that held
  on filing systems structured by reference to the
  data subject
• There are more stringent rules for some types of
  data known as sensitive data
• Those who process personal data are called data
  controllers
• Module 15

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Data Protection Act 1998

• Individuals have rights
• To access data held about them
• To object to processing for direct marketing and
  to processing which would cause unwarranted
  damage or distress
• To object to automated decisions being made about
  them
• To seek rectification of inaccurate data
• To compensation for damage caused by breach of
  the DPA
• Module 15

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Data Protection Act 1998

• Not all information will be provided in response
  to a subject access application some will be
  exempt
• An application for subject access must be
• Made in writing
• Include a fee of 10 unless the data controller
  waives the fee
• Describe the information so that the data
  controller can locate that required
• Receive a response within 40 days of receipt
• Module 15

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Interface FOISA and DPA subject access

• Where an individual asks for access to personal
  data about him or herself the request does not
  come under the FOISA. It is covered by an
  exemption from the FOISA. If the authority is
  sure of the identity of the applicant it should
  be treated as an application for subject access
  under the DPA
• Module 16

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Interface FOISA and DPA subject access

• The right of subject access will be extended to
  cover all recorded information which relates to
  the data subject including filing systems which
  are structured other than by reference to the
  individual and unstructured systems
• The data subject will have to describe any
  information which may be held on unstructured
  files so that the public authority knows where to
  look for it
• Module 16

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Interface FOISA and DPA subject access

• A new subject access exemption will apply to
  information held in an unstructured way and that
  held on the new category of structured files
• The exemption covers information relating to
  personnel matters of any staff employed in the
  armed forces or Crown service or any other part
  of the public sector
• Module 16

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Interface FOISA and DPA third party access
requests

• Where a third party asks for access to
  information about another person it is an access
  request under the FOISA. However the information
  may be exempt from the right of access if
  disclosure would involve
• Breach of the DPA
• Health records of those who are deceased
• Census information in the last 100 years
• Module 17

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Interface FOISA and the DPA third party access
requests

• Information will be exempt under FOISA if
• The disclosure would involve a breach of the data
  protection principles
• The information would not be provided to the data
  subject himself because of the application of a
  subject access exemption or
• Where the information would fall under the DPA,
  the individual has exercised his right to object
  to processing and the objection has been accepted
  by the data controller
• Module 17

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Human rights and freedom of expression

• Human Rights is not a devolved function the
  Human Rights Act 1998 (HRA) applies throughout
  the UK
• The HRA requires all public authorities to
  respect and comply with a set of individual
  rights called Convention Rights
• These include the right to respect for private
  life and the right to freedom of expression
• Module 18

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Human rights and freedom of expression

• Public authorities must respect an individuals
  right to private and family life, home and
  correspondence
• Public bodies can interfere with these if the
  public body
• Has a legal basis for its action
• Is acting in one of a list of specified interests
• Acts reasonably or proportionately
• Module 18

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Human rights and freedom of expression

• Public authorities must respect the right to
  freedom of speech
• Public bodies can interfere with the right if the
  public body
• Has a legal basis for its action
• Is acting in one of a list of specified interests
• Acts reasonably or proportionately
• Module 18

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Human rights and freedom of expression

• The right to private and family life is protected
  by the DPA as well as the Convention Rights
• Freedom of information, that is the right to
  access information held by the public sector, is
  not protected by European law.
• Freedom of expression is not the same as freedom
  of information
• Module 18

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Scottish Information Commissioner

• The Commissioner must
• Promote good practice by Scottish public
  authorities in following the FOISA and the codes
  of practice
• Consider what information it is desirable to have
  made available to the public about the FOISA, its
  operation and good practice in relation to it and
  ensure that such information is made available.
  Where it concerns the records management code he
  must consult the Keeper of the Records of
  Scotland
• Module 19

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Scottish Information Commissioner

• The Commissioner may
• Give advice on the FOISA to any person
• Assess whether a public authority is following
  good practice
• Charge for the provision of his services
• Propose bodies as suitable to be covered by the
  FOISA
• Module 19

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Scottish Information Commissioner

• The Commissioner has enforcement powers. He may
  also make a practice recommendation to a public
  authority where he considers that the practice of
  the authority does not conform to the codes of
  practice issued under the FOISA.
• It must be in writing and set out how the
  authority is failing and what steps it must take
  to rectify the situation
• Module 19

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Requirement for review

• An applicant who is not satisfied with the
  response of an authority to an access request
  may, within 40 days, require the authority to
  review the decision
• The authority must do so, usually within 20
  working days
• If the request was vexatious or repeated the
  authority need not review it but must respond to
  the request for review
• Module 19

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Requirement for review

• An applicant who remains unsatisfied may complain
  to the Commissioner
• The applicant must either have exhausted the
  review procedure or have had no response to the
  request for a review
• Complaints should be lodged within 6 months of
  the review decision but the Commissioner may
  accept complaints outside that period
• Module 19

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Decision of Commissioner

• If the complaint is frivolous or vexatious the
  Commissioner may reject it
• The Commissioner must contact the authority and
  invite its comments on any complaint which he
  handles
• The Commissioner may seek to resolve the
  complaint
• If the complaint is not withdrawn or settled he
  must issue a decision notice stating whether the
  authority has complied with the FOISA
• Module 19

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Information powers

• In order to deal with complaints and to assess
  whether authorities are complying with the FOISA
  in other ways the Commissioner may require the
  authority to supply information by the use of
• An Information Notice or
• A warrant of entry to premises
• It is an offence to make a false statement or to
  fail to respond to an information notice
• Module 19

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Information notice

• Must
• Describe the information required
• Explain why the information is required for
  example that the Commissioner has received a
  complaint of non-compliance
• State the time by which the information must be
  supplied and
• Explain the right of appeal to the Court of
  Session
• Module 19

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Criminal offences

• It is a criminal offence to alter, deface, erase,
  destroy or conceal a record held by an authority
  after a request has been received unless the
  authority would not have had to provide the
  record to the person requesting it
• Any person who carries out or is responsible for
  such an action can be brought before the court
• Module 19

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Enforcement notice

• Decision notices are used to deal with specific
  complaints
• The Commissioner may serve an Enforcement notice
  if he considers that an authority has not
  complied with the FOISA setting out
• How the authority has failed
• What it must do to remedy the situation and
• The authoritys right of appeal
• Module 19

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Power to override

• The First Minister may override an information
  notice served on the Scottish Administration
  where an exemption is claimed on grounds relating
  to national security or other security-related
  exemptions apply and he considers that the
  material is of exceptional sensitivity
• Module 19

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Failure to comply

• If an authority fails to comply with an
  information notice, decision notice or
  enforcement notice the Commissioner may bring the
  authority before the Court of Session which may
  deal with the failure as a contempt of court
• Module 19

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