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Freedom of Information (Scotland) Act 2002

A strategic view

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Overview of the FOISA

• Introduces a right for any person anywhere in the world to ask a Scottish public authority for any recorded information held by the public authority

• Introduces an obligation on all Scottish public authorities to pro-actively publish information in a publication scheme

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The context

• Scottish Ministers are committed to open government

• Openness should improve public participation in public affairs

• The adoption of the FOISA fits with other moves in the public sector such as e government, moves towards electronic records, increased sharing of information to improve services

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Leadership

• It has been shown from overseas experience that one of the most important success factors for an organisation in dealing with the introduction of rights of access is the attitude of senior managers

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How will the FOISA affect your organisation?

• How much interest will you attract?

• Are the activities of the organisation likely to attract public or media attention?

• Is the information that the organisation holds sensitive in any way, for example includes personal details about individuals, particularly those in the public eye, or information about significant decisions?

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• How many requests are you likely to receive?• Which areas of the organisation are likely to

receive difficult requests?• Where will these requests be made to?• How many of the organisation’s activities and

staff might be significantly affected by the introduction of FOISA?

• WHO IS LIKELY TO BE INTERESTED IN YOU?

How will the FOISA affect your organisation?

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Publication schemes

• The organisation has an obligation to publish material under the scheme

• This is the proactive aspect of FOISA

• The scheme should be dynamic, owned by the authority, kept up to date, consistently applied throughout the organisation, well organised and user friendly

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Records management

• In addition to the core obligations to publish material and to respond to requests the authority is obliged to ensure that its records meet the standards set out in the section 61 code of practice on the keeping, management and destruction of the authority's records

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Contents of the section 61 code

• Recognise records management as a corporate function

• Give responsibility to a senior member of staff

• Adopt a records management strategy and policy statement on records management

• Put an active management policy in place• Ensure that disposal of all records follows

the established policy

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Rights of access

• Any person anywhere can make a request • Information held on behalf of another

person or in confidence having been supplied by a Minister of the Crown or UK Government department is not covered

• All other recorded information is covered although an exemption may apply

• Applicants can ask for the material to be supplied in a preferred format

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Obligation to provide advice and assistance

• There is a statutory obligation to provide advice and assistance to anyone making or intending to make an access request to the authority

• If the authority complies with the section 60 code of practice on handling requests it will be deemed to be meeting the requirement to give advice and assistance.

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Dealing with requests for information

• Requests may be made to the wrong organisation and the section 60 code advises on the transfer of requests between authorities

• The information requested may emanate from a third party such as a contractor and affect the interests of those third parties

• Some requests may be classed as vexatious

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Fees and timescales

• Fees will be based on a percentage of the cost of retrieval and supply of the information

• The first block of time may be free

• There will be an upper limit

• The timescale is 20 working days from receipt of the request, allowing for any time between the delivery of a fees notice and its acceptance by the applicant

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Access to environmental information

• Environmental information is widely defined

• The current rules are going to be altered to take account of the UK’s international obligations

• The access rights have been little used to date

• The rules for making requests and timescales for response differ from the FOISA

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Exemptions

• Exemptions may be absolute or non-absolute

• Exemptions apply where– The information is available under other

legislation – The information is not available legally – The exemption protects some other important

area of public interest

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Absolute Exemptions

• Information otherwise accessible

• Information prohibited from disclosure

• Information subject to an obligation of confidence

• Court records

• Personal data where the applicant is the data subject

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Non absolute exemptions

• Information intended for future publication

• Information prejudicial to the effective conduct of public affairs

• Information prejudicial to the commercial interests of any person

• Information relating to investigations and law enforcement

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Data Protection

• If an individual asks for access to personal data about him or herself the request is exempt from the FOISA but the individual may exercise an access right under the Data Protection Act 1998

• If a third party asks for information about another person there is a specific exemption to protect personal privacy.

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Human rights

• The FOISA exists in the broader context of the Convention rights

• The Convention includes rights to respect for private life and to freedom of expression

• Freedom of expression does not include a right to freedom of information

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Reviews

• The authority must have a review procedure for anyone who is not satisfied with the response given by the authority.

• The review process must be independent of the original decision and capable of changing it

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Project Planning for FOISA

• Publication Scheme

– management and upkeep

• Records Management

• Impact on external relationships

– customers

– other stakeholders

• Impact on other relationships

– staff

– contractors

– partners

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• Processes and procedures

– fees

– handling requests

– assessing exemptions

• Training needs

• Review procedures

• Synergies with other initiatives

• Communications strategy and public relations

• Data Protection interface

• Culture change

• Management commitment

Project Planning for FOISA

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Powers of the regulator

• The Scottish Information Commissioner is the regulator for the FOISA

• He can serve various notices including information and decision notices

• He can serve practice recommendations in relation to the codes of practice

• Appeals from the notices can be made to the Court of Session

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Other Initiatives

• Open Scotland

• E-Government and 21st Century Scotland

• Electronic records

• Information sharing

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Offences by individuals

• It is a criminal offence to alter or amend or destroy material to which a request relates with intent to prevent access

• The offence can be committed by individual employees at both senior and junior levels as well as by the organisation

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“The Act will give everyone the right to access the wealth of information that is held by Scottish public authorities. It will help to increase the accountability of public bodies, breaking down a culture of official secrecy and making sure that public bodies look outward to the needs and aspirations of the individuals and communities that they are there to serve.”

Scottish Executive FAQs.