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Scottish Executive Freedom of Information (Scotland) Act 2002 Open Learning Workbook

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

APPENDIX 3
ANSWERS TO SELF-ASSESSMENT QUESTIONS

MODULE 1 - Freedom of Information In Context

  1. TRUE. There is no specific aim to increase the level of consultation with individuals in respect of new policies although this may in fact be an outcome of the new legislation.
  2. TRUE. The vast majority of public bodies are affected by the new Act. Further detail about those affected is provided in module 3.
  3. TRUE. The Act contains a series of exemptions to the general right of access. Many of these relate to circumstances in which the release of information would substantially prejudice the purpose to which the exemption relates.
  4. FALSE. Many countries around the world have freedom of information legislation, for example the USA, New Zealand, Canada and the rest of the UK.

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MODULE 2 - Introduction to FOI Scotland

  1. FALSE. The rights of access provided by the Freedom of Information (Scotland) Act 2002 do not come into effect until 1 January 2005. However, there are already a number of other powers by which certain types of information can be gleaned from relevant public authorities, for example, under the Environmental Information Regulations 1992, and under the Code of Practice on Access to Scottish Executive Information.
  2. FALSE. Anyone will be able to request information under the FOISA once it comes into force, regardless of nationality or domicile.
  3. TRUE. Once the FOISA is in force it will apply to all information held by Scottish public bodies, regardless of how old the information is, how long it has been held by the body, or for what purpose it was prepared.
  4. FALSE. The Code is non-statutory which means that an authority who breaches it cannot be pursued directly through the courts for that breach. However, breach of the Code may be an indication of a breach of the Act itself, and the courts will have regard to the Code in interpreting the provisions of the Act.
  5. TRUE. The Act places a duty on each Scottish public authority to adopt and maintain a publication scheme which sets out the classes of information which the authority publishes and the manner in which the information is published, and details of any charges.

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MODULE 3 - Scottish Public Authorities

  1. TRUE. Even though Scottish Water is structured and managed like a private company it is directly answerable to the Scottish Parliament because its functions are of a public nature.
  2. TRUE. A company will not be classed as publicly-owned if it is an organisation which is only covered for those of its functions which are of a public nature, and for this reason alone is classed as a public authority for the purposes of the FOISA.
  3. TRUE. Scottish Ministers can apply the Act to private sector organisations in limited circumstances using an Order.
  4. FALSE. The "reserved matters" are those areas of legislative competence reserved for Westminster, such as defence and international relations. The Scottish Parliament has full legislative competence in respect of the devolved matters, namely those not listed in Schedule 5 of the Scotland Act 1998.

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MODULE 4 - Publication Schemes - Making Information Available

  1. FALSE. FOISA does not require a public authority to publish specific documents; it is up to the authority to decide what to publish. However the FOISA states that a publication scheme must set out classes of information that are available. Listing specific documents would necessitate frequent revision of the scheme every time a new document were added to the list.
  2. TRUE. If the model scheme is adopted in its entirety, further approval is not required. However, any changes made to the model will require approval.
  3. FALSE. The publication scheme must indicate whether a fee is charged for a given category of information but there is no statutory requirement to state the level of fee to be charged.
  4. TRUE. When revoking approval the Commissioner must give reasons for his decision.
  5. FALSE. The guidance states that public authorities do not have to do this for the purposes of the FOISA but that they should be aware of what obligations exist under other legislation.
  6. FALSE. While it will depend on the nature of the documents, it will not always be necessary to omit the whole class of documents. Authorities should consider options such as deleting exempt material from a document prior to sending it out or creating 2 separate versions of a document, a full version and an edited version which can be made publicly available.

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MODULE 5 - Records Management - Part 1

  1. FALSE. The section 61 Code of Practice is supplementary to the FOISA and as such does not have statutory status, but failure to comply with the Code may lead to breach of the FOISA, so public authorities are strongly advised to give it due weight.
  2. TRUE. Records management is to be regarded intrinsic to the effective functioning of an authority, and should therefore be resourced accordingly.
  3. TRUE. The Code proposes that a senior member of staff should be designated responsible for the records management system and the authority's overall strategy should be endorsed and enforced by senior management.
  4. FALSE. While the disposal of records must be undertaken in accordance with clearly established policies, the Code acknowledges that it is neither appropriate nor realistic to retain every record or file created.
  5. TRUE. The Commissioner has a duty to promote observance of the Codes and if he considers that an authority is failing to comply he has the power to issue a practice recommendation, which will specify what steps an authority should take to improve its practice.

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MODULE 6 - Records Management - Part 2

  1. FALSE. While public authorities are strongly advised to give the section 61 Code of Practice due weight, compliance with the Code will not relieve an authority from any additional duties it may have under statutory provisions on record-keeping contained elsewhere, e.g. the Public Records (Scotland) Act 1937 and the Public Registers and Records (Scotland) Act 1948.
  2. TRUE. Part Two of the section 61 Code applies to all such transfers, and those authorities affected should establish procedures for regularly reviewing their records to ensure that they become available to the public at the earliest possible time in accordance with the FOISA..
  3. TRUE. The Public Records (Scotland) Act 1937 and the Public Registers and Records (Scotland) Act 1948 deal specifically with the transfer of documents to the NAS. The section 61 Code suggests that by agreement with the NAS transfer of records to the Keeper of the Records of Scotland may take place before the records reach 30 years old. In any event, a review of records held should take place before the 30-year period is reached in order to ensure prompt transferral.
  4. TRUE. If an authority transfers records other than to the NAS, the authority remains responsible for the records for the purposes of the FOISA as the records are held on behalf of the authority. Where the records are publicly available through the archive in question, and the authority makes this point in its publication scheme, the authority may simply refer applicants to the archive.
  5. FALSE. The authority should consider whether parts of records might be released if it is possible to withhold the sensitive information in some way. Any method of blanking out information should not damage the document and should be fully reversible.

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MODULE 7 - Rights of Access - How is a Request Made?

  1. TRUE. Any individual or organisation is entitled to make a request for information.
  2. TRUE. An e-mail is in writing and therefore satisfies that formality, although there is an issue about the required address for correspondence. An e-mail address should constitute an address for correspondence if the information requested is in electronic form and can be sent to the applicant's e-mail account. Where the information requested is not available in an electronic form, the authority still has a duty to provide advice and assistance (s.15 FOISA) and so should therefore respond to the e-mail request and advise the applicant of the need for an address to which 'hard' copy information can be sent.
  3. FALSE. Despite the applicant's use of a fictitious name, the authority is obliged to provide advice and assistance. However where the request for access involves personal data the authority will not be able to judge whether the request is a subject access request and give it the appropriate protection without knowing the real identity of the applicant. In these circumstances the authority would not have to respond to the request, although if the Tooth Fairy's request did not involve personal data, the authority would be expected to respond. An authority does not have to comply with vexatious requests for information (see Module 8).
  4. FALSE. Authorities are not required to charge for providing information, but if they do so they cannot set their own fees, they are obliged to comply with the Fees Regulations (not yet published). If authorities have separate statutory power to charge fees for the provision of information (e.g. the Land Registry) they may continue to do so using this power.

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MODULE 8 - How Should an Authority Handle a Request? Part 1

  1. FALSE. Scottish public authorities must comply with requests for information under the Act promptly. The deadline of 20 working days is a longstop and therefore it will not constitute a prompt response where, for example, the request was a straight-forward one requiring minimal effort on the part of the authority.
  2. FALSE. The public interest test is only relevant to "non-absolute" exemptions.
  3. TRUE. The public interest test relates to whether to waive an exemption where, in all the circumstances of the case, the public interest in disclosing the information outweighs the public interest in maintaining the exemption.
  4. FALSE. A refusal notice is served only when the authority is claiming the information requested is exempt. In circumstances where providing the information is too costly or the request is considered vexatious, the authority is only required to write to the applicant and advise him of the grounds for refusal, within the 20 working day timescale.
  5. TRUE. A practice recommendation must specify the steps that the Commissioner considers the authority ought to take however it cannot be directly enforced by the Commissioner. Nevertheless, failure to comply with a practice recommendation may lead to a failure to comply with the Act and in these circumstances could result in the Commissioner serving an enforcement notice (see Module 19 for details of enforcement notices).
  6. FALSE. The Act protects the authority where the defamatory material was supplied by a third party - a request for information cannot be refused on grounds that the response would disclose defamatory material. However, the authority will be held responsible where the material was written or created by the authority's own staff.

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MODULE 9 - How Should an Authority Handle a Request? Part 2

  1. FALSE. The Code is non-statutory but compliance with it will enable authorities to demonstrate fulfilment of their duty to provide advice and assistance and will also help them to comply with their other obligations under the Act.
  2. FALSE. While the first 3 suggestions are genuine, the Parliamentary Ombudsman is not relevant to publication schemes in Scotland. However, you should consider including a point of contact for users wishing to make complaints or suggestions.
  3. TRUE. The section 60 Code of Practice states that the most appropriate means of doing this will be by notice under section 17 of the Act (i.e. a notice that information is not held). The Act does not include procedures for transferring requests from one authority to another and it will not generally be appropriate for authorities to do so. However, where the authority considers that it would be helpful to the applicant to redirect his request to another authority, the section 60 Code of Practice provides further guidance on what to do in these circumstances - see paragraphs 28 - 32.
  4. FALSE. Even though a third party may want its information to be protected, public authorities should only withhold such information where there is a genuinely appropriate exemption e.g. the information constitutes a trade secret or sensitive personal information.

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MODULE 10 - Midway Review

  1. d).
  2. c).
  3. b).
  4. c). Where a public authority wishes to modify the classes of information within the publication scheme, the scheme must be re-submitted to the Commissioner for approval. However, where the authority is proposing to add an additional class of information which does not involve a charge, the Commissioner should be notified of the addition being made, but the authority may make the additional information available under its publication scheme immediately. If the overall class description remains the same, it is not necessary to re-submit the scheme for approval.
  5. d). The section 61 Code does not deal specifically with action plans; the Records Management Sub-Group of the Scottish Freedom of Information Implementation Group have developed a model action plan to assist public authorities with good records management practice.
  6. d).
  7. c).
  8. a).
  9. c).

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MODULE 11 - Access to Environmental Information

  1. FALSE. Access rights to environmental information are embodied in Directive 2003/4/EC which will be implemented by way of the Environmental Information (Scotland) Regulations, currently in draft form. This regime is more wide-ranging than that in respect of requests for non-environmental information.
  2. TRUE. Any record held by a public authority which has any bearing on the environment comes within the scope of the Regulations, subject to certain exemptions.
  3. TRUE. Every "natural or legal person" regardless of citizenship, nationality or domicile, has a right of access to environmental information held by or produced by public authorities. There is no requirement to show a specific interest in the information requested.
  4. FALSE. A request does not have to be in writing, but it can be refused by the public authority if it is formulated in too general a manner or is manifestly unreasonable.
  5. TRUE. An applicant should be informed about the appropriate review procedure in any refusal letter.

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MODULE 12 - Exemptions - Part 1 Overview

  1. TRUE. This is to avoid an authority having to segregate artificially individual documents; the whole file only becomes available once the newest document on the file meets the criteria for an historical record.
  2. FALSE. Where the information requested would be exempt but the authority considers that to reveal whether or not it is held by that authority would be contrary to the public interest, it may (regardless of whether the information exists and is held by it) serve the applicant with a refusal notice (s.18(1) FOISA).
  3. TRUE. The section 60 Code of Practice suggests that this approach be adopted.
  4. FALSE. The "public interest" has been described as something that is of serious concern or benefit to the public, not merely of individual interest. See the section 60 Code for factors that authorities are advised to take into account and those that they are not when determining whether a disclosure is in the public interest.
  5. TRUE. Section 16(3) of the Act states that the authority is not obliged to make a statement as to why the exemption applies if such a statement would disclose information which would itself be exempt information.

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MODULE 13 - Exemptions - Part 2 Can Information Always be Accessed?

  1. TRUE. A non-absolute exemption is available in order to protect certain types of commercial interest (s. 33 FOISA).
  2. FALSE. A non-absolute exemption is available in respect of information which could prejudice the effective conduct of public affairs (s.30 FOISA). However, this is intended to mean information that could prejudice substantially the collective responsibility of Scottish Ministers or inhibit substantially the exchange of views or provision of advice; it is not about covering up ministerial blunders.
  3. TRUE. The information would be subject to an absolute exemption because it should be obtainable by another means (Section 25 FOISA), namely the Environmental Information Regulations 1992.
  4. TRUE. The Section 31 exemption in respect of national security and defence is a non-absolute exemption and so the public interest test must be applied.

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MODULE 14 - Exemptions - Part 3 Can Information Always be Accessed?

  1. TRUE. An absolute exemption applies to confidential information that is actionable. However, an obligation of confidence can be overridden where the third party consents, a court orders it, or where there is an overriding public interest in the disclosure. In such circumstances the information would no longer be confidential and as such it would not be covered by an absolute exemption any longer.
  2. FALSE. Although section 37 is an absolute exemption, public access to court records in Scotland is generally open; nonetheless in some circumstances it will be at the discretion of the court.
  3. FALSE. Section 39 which relates to information concerning health, safety and the environment is a non-absolute exemption and therefore the public interest test must be applied before a public body takes a decision about whether or not such information should be disclosed.
  4. FALSE. Much information is subject to an absolute exemption because it is already publicly available by some other means; for example, environmental information under the Environmental Information Regulations.

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MODULE 15 - Effect of the Data Protection Act 1998

  1. TRUE. The bullet points listed cover five of the eight Data Protection Principles. The remaining three Principles are that the data must be processed for limited purposes and not in any manner incompatible with those purposes; they must be processed in line with the data subject's rights, and third, they must not be transferred to countries without adequate protection.
  2. TRUE. If the data controller has the means to identify individuals from the anonymised data, then the information held will be covered by the Data Protection Act 1998.
  3. FALSE. These are grounds for processing ordinary personal data. Where a data controller wishes to process sensitive personal data the grounds are more stringent, e.g. he must have the explicit consent of the individual, or he must be required by law to process the data for employment purposes, or he needs to do so in order to protect the vital interests of the data subject or another. There are other grounds listed in Schedule 3 of the FOISA.
  4. TRUE. The Data Protection Act 1998 gives an individual the right to require a data controller, such as the Scottish Higher Education Funding Council, to provide a description of the personal data held about that individual, the purposes for which the data are processed and the classes or types of persons to whom the data are disclosed (a subject access request).

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MODULE 16 - Applications for Information by Data Subjects

  1. FALSE. A request by an individual for information about himself will be exempt under the FOISA and will continue to be handled under the Data Protection Act 1998. However, the range of information that may be requested under the Data Protection Act will be extended after January 2005 when the FOISA comes into force.
  2. TRUE. All recorded information about individuals held by a public authority subject to the FOISA will potentially be covered by the Data Protection Act for the purposes of access and correction. It is intended that these changes are made to the Data Protection Act by an Order made under the Scotland Act 1998 before January 2005.
  3. FALSE. There is no legislative mechanism whereby a request under the FOISA can be translated into a subject access request, so the FOISA request should be refused, but in view of the authority's obligation to provide advice and assistance, the applicant should be told how to make a subject access request instead.
  4. TRUE. The new category of data that will be covered by the Data Protection Act 1998 after January 2003 covers "structured" and "unstructured" data. On the facts, the staff suggestions file appears to be "structured" data in that it has an internal filing system which allows information to be readily retrieved, but is not part of a filing system structured by reference to the individual, which would have rendered it a relevant filing system and already covered by the Data Protection Act 1998.
  5. TRUE. the Data Protection Act 1998 has been extended to cover the same range of data to which third parties would have access under the FOISA and under the DPA an individual is likely to obtain more information about himself than a third party under the FOISA.

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MODULE 17 - Applications for Information by those other than the Data Subject

  1. TRUE. The information must fit the definition of personal census information to qualify for the exemption.
  2. TRUE. If information requested about a third party would not be available to that third party were s/he to make a subject access request under the Data Protection Act 1998, then the information is exempt under the FOISA. This means that the DPA exemptions are relevant to a request for third party information made under the FOISA.
  3. FALSE. If an individual lodges an objection under the Data Protection Act 1998, the objection must be accepted by the public authority for it to have any effect. Even if the authority has accepted the objection, this is a non-absolute exemption and the authority is still required to consider the public interest before refusing access.
  4. TRUE. The section 60 Code of Practice (Paragraph 35) advises consultation in these circumstances as the authority should be looking to disclose information where possible. This is particularly relevant where an interval of time has elapsed between the acceptance of the objection notice by the authority and the time of the request for information; the authority should check that the objection still stands before refusing an access request in reliance on it.

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MODULE 18 - Human Rights

  1. FALSE. Observing and implementing international obligations, such as obligations under the European Convention on Human Rights is not a reserved matter. However, the Scottish Parliament and Administration is specifically bound to obey and comply with Convention rights pursuant to the Human Rights Act 1998.
  2. FALSE. It is a qualified right as it is one that has to be balanced against the interests of national security, public safety or the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals or the protection of rights and freedoms of others.
  3. FALSE. The European Convention on Human Rights and the Human Rights Act relate to the exercise of power by public bodies. Your local football club is not a public body because it does not act on behalf of the State or fulfil a public function. In limited circumstances the Convention may by applied "horizontally", i.e. between two private parties, but as the Convention does not contain a specific right to be protected from discrimination on grounds of sex or race, you would probably have to rely on other legislation in this area, such as the Race Relations Act 1976 (as amended) and the Sex Discrimination Act 1975 (as amended).
  4. TRUE. Article 10 of the ECHR states that everyone has the right to freedom of expression but this does not give people the right to demand information from the State.

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MODULE 19 - Reviews, decisions and enforcement

  1. FALSE. In the first instance the disappointed applicant should ask the authority to conduct a review of its decision within 40 days of the refusal. Only when the applicant has received a further unsatisfactory response from the authority is the applicant entitled to complain to the Commissioner.
  2. TRUE. However, it cannot ignore the requirement for a review entirely and therefore must write to tell the applicant of its decision - this is only likely to be the case where the original request had already been dealt with or was a vexatious request.
  3. TRUE. Section 65 creates an offence of altering records etc. with intent to prevent disclosure; both the individual employee and the employer authority can be guilty of the offence and liable on conviction to a fine of up to 5000.
  4. FALSE. At this stage, if the pressure group wants to take the matter further, it must channel its complaint through the Commissioner; it has no statutory right to take the matter before the court.
  5. FALSE. An e-mail is regarded as a permanent form for the purposes of making the request for a review.
  6. TRUE. The Commissioner can serve an Enforcement Notice in any case where he is satisfied that the authority has failed to comply with the Act. In this case there have clearly been a number of failures on the part of the authority; these should be detailed in the Enforcement Notice, together with steps needed to remedy the situation in future.

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MODULE 20 - Final Review

  1. c).
  2. a).
  3. b).
  4. c).
  5. b).
  6. c).
  7. d).
  8. b).
  9. d).

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Page updated: Wednesday, April 5, 2006