Overview of FOI legislation

FOI and HE researchersMargaret Keyse

Head of Enforcement

Overview

How to recognise an information request under the Freedom of Information (Scotland) Act 2002

Responding to a request

Overview of the exemptions

The Environmental Information (Scotland) Regulations 2004 – key differences

FOI north and south of the border

Scottish Information Commissioner

Regulates FOISA and the EIRs – but not the Data Protection Act 1998

1200 decisions issued

34 decisions involve FE or HE bodies

Two decisions involving teaching/research

An information request must …

be in writing or in another form capable of being used for future reference

email, letter, fax, video recording, etc.

state the name of the applicant and an address for correspondence

no anonymous requests or pseudonymsrequests made on behalf of unnamed clients not valid

describe the information requested FOISA only covers recorded information information held when the request is received

Timescale for replying

– Must “comply promptly”– Maximum of 20 working

days– Weekends and bank

holidays don’t count (different from public holidays)

– No extension allowed

How to respond – options

Disclose information in fullCan’t comply – information not held (s17)Issue fees notice (s9)Refuse to comply

Vexatious or repeated (s14)Excessive costs (more than £600) (s12)Apply one or more exemptions (s16)Neither confirm or deny whether the information is held (s18)

Don’t delete or change the information before replying!

Review

Unless information provided in full, applicant must be advised of the right to seek a review and to apply to the CommissionerApplicants have 40 working days to ask for review

authority can carry out late review if “appropriate”

Authority has 20 working days to carry out reviewconfirm the original decisionsubstitute a different decisionreach a decision where none has been reached

Tell applicant of outcome – and remind can apply to Commissioner (within 6 months)

Absolute exemptions

“Absolute”, i.e. not subject to the public interest testInformation otherwise accessible (s25)

the applicant already has the informationit’s easily available to the applicant, e.g. published on internetpublication scheme

Prohibition on disclosure (s26)Breach of confidence (s36(2))Court records (s27)Personal data (s38)

no right to access own personal data under FOISAthird party data – fair and lawful to disclose the data?

Exemptions subject to public interest test

•Information intended for future publication (n.b. research)

•Relations within the UK

•Formulation of Scottish Administration policy etc.

•Prejudice to effective conduct of public affairs

•National security and defence

•International relations

•Commercial interests and the economy

•Investigations by Scottish public authorities

•Law enforcement

•Confidentiality (part)

•Personal information (part)

•Health, safety and the environment

•Audit functions

•Communications with Her Majesty etc. and honours

The harm test

• Most of the exemptions are subject to a harm test

• Test: “substantial prejudice” in Scotland v “prejudice” in UK

• How does this work in practice?

Future publication/research

Information held with a view to publication12 weeks of receipt of requestreasonable to delay disclosing information

Information obtained in the course of, or derived from, a programme of research

programme is continuing with a view to the report of the research being published anddisclosure would, or would be likely to, prejudice substantially:

the programme of research;the interests of any individual participating in the programme;the interests of the authority holding the information; orthe interests of any other authority

Origins of research exemption

Introduced at stage 3 of FOI BillLobbying by Universities Scotland

premature disclosure would prejudice disclosure of research which didn’t yet have commercial valuepremature disclosure would lead to misinterpretation, damaging Scotland’s reputation for excellence in researchrecruiting international-quality researchers to Scotland significantly would be more difficult if required to disclose incomplete research

Vote: 74 for and 34 against

Using the research exemption

“Programme of research” designed to distinguish genuine academic research from simple data collection or analysis Can be a one-off piece of research – but must be ongoingNot just scientific research Doesn’t matter if the information which has been requested will be included in the published resultsMust be an intention to publish - once research finished or published, exemption can’t apply

Commercial interests

Trade secretsrecipe for Irn Bru and Drambuie

wide definition

Substantial prejudice to commercial interests of any person (including colleges and universities)

the commercial interests exemption in practice: Decision 210/2010 Prof. David Colquhoun and Edinburgh Napier University

Environmental information: definition

the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components and the interaction among these elementsfactors, such as substances, energy, noise, radiation or waste affecting or likely to affect the elements of the environmentpolicies, legislation, plans, programmes, environmental agreements and activities affecting or likely to affect these elements and factorsreports on the implementation of environmental legislationthe state of human health and safety, conditions of human life, cultural sites and built structures inasmuch as they may be affected by the state of the elements of the environment

Key differences

Verbal requests are validtelephone callrequest made during meeting

Wider definition of Scottish public authorityincludes private bodies carrying out functions in relation to the environment

No cost limit under the EIRsbut can refuse to deal with requests which are manifestly unreasonable

20 working day period for responding can be extendedby up to a further 20 daysrequest must be voluminous and complex

EIRs trump other legislation preventing disclosure of EIbased on EU Directive 2003/4/EC

Questions