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

MODULE 4
PUBLICATION SCHEMES - MAKING INFORMATION AVAILABLE

4.1 CONTENT AND LEARNING OBJECTIVES

This module relates to publication schemes. It gives an overview of the legal requirements and looks at guidance that has been issued on publication schemes including the draft Section 60 Code of Practice and good practice guidance issued by the Scottish Information Commissioner.

Once you have worked your way through this module you should understand:

• What a publication scheme is and what it must include
• Provisions relating to approval of schemes
• What the public authority must have regard to in adopting or reviewing its scheme
• Model publication schemes
• What the draft section 60 Code says about publication schemes
• What guidance from the Scottish Information Commissioner says about publication schemes

SUGGESTED TIME ALLOCATION: 1 hour

4.2 LEARNING MATERIALS

4.2.1 Legal requirements

There is a requirement in the Act that each Scottish public authority must adopt and maintain a publication scheme which relates to the publication of information by the authority. This scheme must be submitted to the Scottish Information Commissioner for approval.

The public authority must then publish information in accordance with its scheme and review its scheme from time to time.

A publication scheme must specify:

• the classes of information which the authority publishes or intends to publish, for example minutes of meetings, HR policies etc.
• how information of each class is, or is intended to be, published, for example in a library, on the internet, in the offices of the authority etc.
• whether there is a payment for the information.

When it formulates the scheme or subsequently reviews it, the authority must consider the public interest in allowing access to its information, especially to information which relates to the provision of services by it, the cost to it of providing such services or the standards attained by these services and to information which consists of facts or analyses which have been used to make decisions of importance to the public. The authority must also have regard to the public interest in the publication of reasons for decisions made by it.

The publication scheme itself must be published by the authority in any manner it sees fit but it would be appropriate to publish it in a variety of formats.

4.2.2 Approval by the Commissioner

Each public authority must submit its scheme to the Scottish Information Commissioner for approval. When the Commissioner looks at a scheme, he can approve it for a limited period and he also has the power to give six months notice to revoke a scheme. When refusing or revoking approval, the Commissioner must give reasons for his decision. There is a timetable available from the Commissioner's website by when authorities must submit their schemes for approval. For example, the Scottish Ministers and the Scottish Parliament must submit their schemes to the Scottish Information Commissioner by 28 February 2004 for the Commissioner to approve by 1 June 2004. In this case, the scheme should then be up and running by 1 June 2004 - all publication schemes come into effect during 2004, before the right of access in 2005.

4.2.3 Model publication schemes

The Commissioner has a power to prepare and approve model publication schemes for particular classes of authority or to approve model schemes that have been prepared covering authorities in a particular sector. For example, it is likely that colleges of further and higher education will have their own model publication scheme that they submit to the Commissioner for approval. The advantage is that each relevant authority within the sector covered by a model scheme can just adopt the scheme without having to submit it for further approval. If they make changes to the model scheme then they will need to seek approval but nevertheless this may still be more advantageous than each authority within the sector starting work on a bespoke scheme. Model schemes may be appropriate for smaller public authorities with limited resources.

4.2.4 Guidance

There is various guidance and information on publication schemes. The Scottish Information Commissioner has issued a Guide to Publication Schemes under the Freedom of Information (Scotland) Act 2002. This is discussed later.

The Act includes a provision for the Scottish Ministers to issue guidance to public authorities on discharging their functions under the Act. This is known as the section 60 code of practice. The section 60 code is still in draft format. It has been the subject of public consultation and will be revised and formally issued in the Spring of 2004.

The section 60 code is non-statutory but complying with it will mean that authorities will be taken to comply with their duty to provide advice and assistance (this duty is discussed in Module 8) and should help them comply with their other obligations under the Act, including those in relation to publication schemes.

4.2.5 Draft Section 60 Code

The draft section 60 Code of Practice says that "The routine publication of more information is likely, over time, to lead to a reduction in the number of individual requests for specific pieces of information due to the operation of the exemption applicable in cases where the information is otherwise accessible. Authorities, therefore, have an incentive to include more information in their publication schemes as this will obviate the need to provide that information in response to a request under section 1. However, it would be good practice for authorities to keep a log of requests made for information which is not currently included in their publication schemes. Authorities could then consider the need to add that class of information as a new class to be covered by the scheme." This demonstrates that a publication scheme is not intended to be static, an authority should consider adding to it where appropriate.

The draft section 60 Code also suggests that the publication scheme should include details of the authority's procedures for handling requests for information. The procedures should include an address or addresses, including e-mail where possible, for applicants to direct requests. The Code also recommends providing a telephone and fax number and where possible the name of an individual who can assist.

4.2.6 Commissioner's Guidance

The Scottish Information Commissioner has issued good practice guidance on publication schemes which authorities should refer to when implementing and reviewing a scheme. This guidance expands on the draft section 60 Code. There are a number of key points of which authorities should be aware.

• The guidance suggests that classes of information should be defined as clearly as possible. A class of information is not the same as actual information, so that the actual information within a class may vary from time to time but the overall class description will stay the same. Classes therefore need to be defined carefully.
• Where information is to be withheld on grounds of a possible exemption, the guidance suggests two main ways to address the matter. First, authorities might choose to state in the preamble to their publication scheme that the classes of information may contain exempt information. Alternatively it may be preferable to define each class in a way that makes it clear that the classes do not contain exempt information. An example of an appropriate class description given by the guidance is for "staff policies" which could be entitled "Internal procedures which collectively establish the procedures to be followed by and the conduct expected of members of the authority's staff in the performance of their duties. Some of the material in this class may be withheld if its release would compromise the health and safety of staff or would release personal information relating to staff or other individuals."
• The guidance recommends that documents are made available in a variety of formats wherever possible and that publication schemes indicate the formats in which a document is available. Specific reference is made to duties authorities may have under the Disability Discrimination Act 1995 and the Race Relations (Amendment) Act 2000.

4.4 SUMMARY

Each public authority must have a publication scheme. The purpose of a scheme is to make information available so that people can access it without having to make an individual request. A scheme will set out what classes of information the authority publishes, how the information is made available and whether there is a fee for the information. An authority can adopt a model scheme or develop its own, but each scheme must be approved by the Scottish Information Commissioner.

4.5 KEYWORDS

4.6 REFERENCES

Section 15 FOISA Duty to give advice and assistance to applicants.
Section 23 FOISA Publication Schemes
Section 24 FOISA Model Publication Schemes
Section 60 FOISA Code of Practice providing guidance in connection with the discharge of functions under the Act.

4.7 RESOURCES

SIC Guidance on publication schemes:
www.itspublicknowledge.info/pscheme.htm

SIC publication schemes timetable:
www.itspublicknowledge.info/timetable.htm

Section 60 Code:
www.scotland.gov.uk/about/FCSD/MCG-NW/00018022/Code60.pdf

4.8 SELF ASSESSMENT CHECKLIST

1. A publication scheme is a list of the documents made available by a public authority as required by the FOISA. TRUE or FALSE?

2. If a relevant authority chooses to adopt a model scheme prepared by the Commissioner for a particular class of authority, the scheme will not have to be submitted to the Commissioner for approval. TRUE or FALSE?

3. The publication scheme must include details of what fee is to be charged for the information in question. TRUE or FALSE?

4. The Commissioner has the power to revoke a scheme provided that he gives six months' notice. TRUE or FALSE?

5. The draft s.60 Code of Practice requires public authorities to provide material in alternative formats or translations in accordance with the requirements of the Disability Discrimination Act or the Race Relations Act. TRUE or FALSE?

6. Where some information in a class is exempt, the authority will have to omit the whole class. TRUE or FALSE?

Click here for answers

4.9 WHAT THEY SAID

"Improving public services is about providing information to the public and ensuring they have access to important public information" (Paul Martin - MSP)

"An effective freedom of information regime will result in more information being in the public domain and encourage public authorities to make information available voluntarily." (Jim Wallace - MSP)

"It is clear that something needs to change. We should not be bashful about that, as we are talking about our information - public information, which is held on behalf of the public, created by the public, paid for by the public and often kept secret by virtue of public funds" (Alastair Morgan - MSP)

4.10 CASE STUDY

Task

Either:

1. Make a list of ten factors that should be considered when preparing a publication scheme. Think both about legal requirements and practical requirements.

Or:

2. Have a look at the publication scheme for your authority, if available. Make a short list of comments (5-10) both positive and, if any, negative on the scheme.

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