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SCOTTISH EXECUTIVE FREEDOM OF INFORMATION (SCOTLAND) ACT 2002:OPEN LEARNING WORKBOOK

MODULE 2
INTRODUCTION TO FOI SCOTLAND - WHAT IS FREEDOM OF INFORMATION AND WHAT DOES IT DO?

2.1 CONTENT AND LEARNING OBJECTIVES

This module introduces some of the basic information about access to information in Scotland. It sets out the context of the Act and broadly what the Act covers. In other modules you will explore the detail in more depth. Once you have worked your way through this module you should understand:

• When the Act comes into force
• What the Act does in outline
• Rights of access prior to January 2005
• Other rights of access

SUGGESTED TIME ALLOCATION: 50 minutes

2.2 LEARNING MATERIALS

2.2.1 The Freedom of Information (Scotland) Act 2002 - An introduction

The Act was passed by the Scottish Parliament on 24 April 2002 and received Royal Assent on 28 May 2002. The right of access under the Act will not come into effect until 1 January 2005.

Once the FOISA is in force it will give a right of access to all recorded information held by Scottish public authorities covered by the Act. It will not replace other statutory powers to disclose or use information which such authorities have. All other powers will continue to apply for the moment.

Under the Act authorities will have to develop publication schemes so that the public can see what sort of information the authority publishes or intends to publish.

Where information is not proactively made available, public authorities have to respond to specific requests for information. The Act will allow anyone, anywhere to make a request for information to a Scottish public authority. The applicant can be a limited company or an individual or another public authority. It can be an employee or a client. There is no restriction on who can use the Act to ask for information; no need to cite the Act when making a request; no need to give reasons for requesting the information.

It does not matter how old the information is or when the public authority first held it or the reason why it was prepared in the first place. As long as it is information held by a Scottish public authority then the right of access will apply. The information however has to be held by a Scottish public authority on its own behalf. If the authority has material in its possession which it holds on behalf of another person, then this information will not have to be disclosed. However, if it is held on behalf of another public authority then a request to that public authority could be made.

Information held in confidence and supplied by a Minister of the Crown or by the UK Government is also outside the Act. In addition, the applicant may not be able to have the information if it is subject to one of the exemptions.

One of the Act's consequences is that public authorities will need to review and improve the way they manage their records and the Act requires the Scottish Ministers to issue a code of practice on records management.

Another important provision in the Act is the creation of the post of Scottish Information Commissioner. The Commissioner has a key role in promoting and enforcing the Act. He has published guidance on preparing publication schemes and will be responsible for approving the schemes of all Scottish public authorities during 2004, in advance of the introduction of the rights of access. He will also handle appeals made by applicants who are dissatisfied with the response made to their request for information.

All of the issues in this introduction are covered in more detail in the rest of the Workbook.

2.2.2 Rights of Access prior to January 2005

Although the FOISA does not come into effect until 1 January 2005, certain information about public authorities in Scotland is available to the public before then. Information may be available under non-statutory codes of practice where:

• the organisation is subject to the Code of Practice on Access to Scottish Executive Information, in which case the information could be available under that Code;
• the organisation is part of the NHS in Scotland and is subject to the equivalent NHS Code; or
• the organisation is subject to the UK Code of Practice on Access to Government Information, in which case the information could be available under that Code.

2.2.3 Other rights of Access

Even when the Act comes into force, information may still be available in other ways. Examples are:

• Personal information about the applicant available under the Data Protection Act 1998 (this is covered in Modules 15, 16 and 17).
• Environmental Information available under regulations (this is covered in Module 11).

2.4 SUMMARY

The Freedom of Information (Scotland) Act 2002 comes fully into force on January 1 ^st 2005. Once in force it provides a right of access to all recorded information held by Scottish public authorities covered by the Act. Anyone, wherever they are based, will be able to make an access request to a Scottish public authority.

Until the Act comes into force, people will still be able to access some information about public authorities through the non-statutory Codes and other access rights and even when the legislation comes into force, other access rights will continue to exist.

2.5 KEYWORDS

2.6 REFERENCES

Section 1 FOISA General Rights to Information
Section 3 FOISA Information held by a Scottish public authority
Sections 16 - 18 FOISA Responses to requests
Section 23 FOISA Publication Schemes
Section 25 FOISA Information otherwise available
Section 73 FOISA Interpretation

2.7 RESOURCES

Scottish Executive FAQs:
www.scotland.gov.uk/government/foi/faqs.pdf

Scottish Executive Overview:
www.scotland.gov.uk/government/foi/foioverview.pdf

The Freedom of Information (Scotland) Act 2002:
www.scotland-legislation.hmso.gov.uk/legislation/scotland/acts2002/20020013.htm

2.8 SELF ASSESSMENT CHECKLIST

1. Access to information about public authorities cannot be requested in Scotland until 1 January 2005. TRUE or FALSE?

2. Requests for information from Scottish public authorities may only be made by people who live in the UK. TRUE or FALSE?

3. The FOISA will apply retrospectively to information held by Scottish public authorities. TRUE or FALSE?

4. Under the Code of Practice on Access to Scottish Executive Information certain public authorities must provide information except where disclosure would not be in the public interest, or risk being sued. TRUE or FALSE?

5. The FOISA imposes a positive duty on public authorities to review and improve the way in which they manage their records and publish information. TRUE or FALSE?

Click here for answers

2.9 WHAT THEY SAID

The pros…..

"Our freedom of information regime will be much more robust than the regime that was set up under the Freedom of Information Act 2000 [the Westminster Act]. I have no doubt that campaigners in England and Wales will continue to press for changes to be made down south to emulate what we have in Scotland" (Roseanna Cunningham - MSP)

""..a new form of democracy: an accountable, visible Parliament, where people were encouraged to participate fully in public debate and the policy-making process…it was proclaimed that the Parliament was to be open and accessible to all. Those same principles sit at the heart of the Freedom of Information (Scotland) Bill" (Jim Wallace - MSP)

The antis…

"..an inflexible regime that is more suited to dealing with appearances than with practicalities." (Lord James Douglas-Hamilton - MSP)

2.10 CASE STUDY

Andrew Black had been in post as Information Officer with a Scottish Parole Board for only a couple of weeks when he was presented with the following letter from Aran Consulting (Ireland) Ltd.

Andrew had been sorting through his e mails after a long bank holiday weekend, and planning to do some pre-course reading later in the morning, when the Chief Executive called him in and handed him the letter. Andrew took the letter from her gingerly, not expecting to be thrown in at the deep end in his first few weeks.

His place on the training course for his new role was booked (which explained the pre-course reading) but so far the only knowledge he had of handling access requests came from the bit they had been told about access and privacy at the induction session. He only had a hazy memory of that and it had been pretty brief.

The CE's parting words as he left the room did not make him feel any better, "We aren't keen on these people you know. And they are obviously looking for ammunition - we won't want to give them any assistance if we can help it. Can we kick it into touch early on? They're not from Scotland after all".

While Andrew did not know much about the Freedom of Information (Scotland) Act 2002 he had a suspicion that being Irish was no barrier to using it and he rather doubted that it included a sub-section allowing the Board to withhold information from people whom they "weren't keen on".

At least the Chief had not expected him to advise her there and then. He had a bit of breathing space. His first task was simply to review the request and prepare a list of key points (on one side of A 4 - the Chief refused to read anything longer) for the Chief on whether they had to respond.

Task

Prepare a list of five key points for the Chief on no more than one side of A4 on whether the Board has to answer the letter drawing on the material you have learnt in the learning materials for this module.

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