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TRAINERS' PACK

SECTION 1 - ADDITIONAL TRAINING MATERIAL AND RESOURCES

A set of answers to the case studies or exercises in the workbook have been included for each module. Trainers should note that these are intended to be indicative of the appropriate responses rather than exhaustive in every case. If you would like to provide feedback on any of the suggested answers please contact the Scottish Executive via the Freedom of Information Unit ( foi@scotland.gsi.gov.uk). The pack also includes some additional material, for example further case studies and exercises. For some modules additional briefing material has been included. You will find guidance to the use of PowerPoint presentations which are in the appendix to the pack in Section 2.

CASE STUDY ANSWERS AND ADDITIONAL MATERIALS

MODULE 1 - FREEDOM OF INFORMATION IN CONTEXT WORKBOOK CASE STUDY ANSWERS

1. The case study can be approached from various different angles and learners' personal views and opinions regarding freedom of information will heavily influence their answers. Learners do not have to reach a firm conclusion on these issues as they have not yet considered all exemptions. However, learners should be able to discuss and identify the following issues as relevant to reaching their conclusions:

• Disclosing details of the lease may cause potential harm to the private contractor e.g. possible breach of confidence, disclosure of business practices/information to competitors. [Possible exemptions could include Section 36 (Confidentiality) and Section 33 (Commercial Interests). Section 36(2) is an absolute exemption whereas Section 33 will require the public interest test to be applied.]
• Balance of public interest against contractor's private interest in nondisclosure.
• Confidentiality undertakings or contractual terms between council and contractor and whether these should prevail over the public interest.

2. Learners should consider:

• Publication of public figures' identities may be in public interest i.e. no argument privacy invaded.
• Difference between privacy for public figures' home lives (e.g. attending concerts in their own time) and activities in exercise of public office.
• Publishing photographs taken at concert without politician's permission or knowledge could breach human rights [Article 8 Human Rights Act] in certain contexts.
• [Application of Section 38 exemption on personally identifiable information.]
• [Need to balance ECHR Articles 8 (privacy) and 10 (freedom of expression) in UK.]

ADDITIONAL MATERIAL

Broader context

The relationship between individuals and the government or other public authorities is never static; economies alter, new social problems arise and have to be dealt with, people move, populations age; new technologies, wars in distant lands, climate or environmental change all affect our society and the way in which we regulate our affairs. In the last decade there have been some powerful drivers for change, among them

• The growth of new technologies, for example those which allow for instant communication, sophisticated matching of information and increased surveillance of individuals by the State;
• A drive for increased effectiveness and efficiency in the public sector;
• A recognition in the United Kingdom of the need for constitutional change;
• An increased emphasis on the importance of individual rights.

It is not possible to list all the changes these drivers have brought about but among them are the introduction of the Scottish Parliament and the Welsh Assembly, the introduction of the Human Rights Act and legislation affording protection for the disabled, the development of e- government, the drive to increased data-sharing in the public sector and the growth of the use of communications technology.

In this broader context the introduction of the FOISA should be recognised as not just another law affecting the public sector but rather an important mechanism to help preserve and strengthen democracy in this changing environment.

The importance of access rights in a modern democracy is a theme found in similar laws around the world. The United States Department of Justice ("DoJ") starts its Guide to the US Freedom of Information Act like this,

"The principles of government openness and accountability underlying the Freedom of Information Act ..are inherent in the democratic ideal… The basic purpose of the FOIA is to ensure an informed citizentry, vital to the functioning of a democratic society, needed to check against corruption, and to hold the governors accountable to the governed".

The public interest in access to information

The US DoJ Guide goes on to set out the approach to another important aspect of access rights, the need to balance competing objectives, as follows,

"..achieving an informed citizentry is a goal often counter-poised against other vital societal aims. Society's strong interest in open government can conflict with other important interests of the general public - such as the public's interest in the effective and efficient operation of government; in the prudent governmental use of limited fiscal resources; and in the preservation of the confidentiality of sensitive personal, commercial and governmental information. Though tensions among these competing interests are characteristics of a democratic society, their resolution lies in providing a workable formula that encompasses, balances and appropriately protects all interests while placing primary emphasis on the most disclosure possible. It is this accommodation of countervailing public concerns, with disclosure as the animating objective, that the FOIA seeks to achieve."

MODULE 2 - INTRODUCTION TO FOI SCOTLAND

WORKBOOK CASE STUDY ANSWERS

Learners may note the following points:

• After January 2005 the Board will be subject to the FOISA 2002.
• As the request is made in writing and describes the information required it would be valid.
• Anyone will be able to make a request under the FOISA so the fact that the applicant is from Ireland is not a reason to refuse access.
• It does not matter that the applicant is a limited company. It still has the right to make requests.
• Even though the information requested is from before the FOISA comes into force it will be covered by the FOISA.
• The applicant does not have to explain why it wants the information.
• There are exemptions under FOISA which the Board could consider.
• The Board should start from a presumption that access should be given where possible.

ADDITIONAL MATERIAL

The Code of Practice on Access to Scottish Executive Information

The Code applies to the Scottish Executive and to a number of other Scottish public authorities. It does not apply to court records. The Code was adopted by the Scottish Executive on 1 July 1999. It was one of the first actions of the Executive and reflects its commitment to openness in Scottish public life.

When the FOISA comes into force on 1 January 2005 it will replace the Code but until then people can use the Code to apply to public authorities subject to the Code for information. The Code sets out the rules under which information is released. The target for responses to simple requests for information is 20 working days from the date of receipt, although it may take longer where a significant search is required or information needs to be collated.

The Code is non-statutory which means that a public authority does not have a legal obligation to provide information, so that if it refuses to provide information under the Code the applicant cannot take that authority to court. It does not mean that there is no remedy at all. The applicant can complain to the Scottish Information Commissioner who can rule against the authority.

The Code aims to increase public access to official information. The starting point for all public authorities in applying the Code is that they should give access to information except where disclosure would not be in the public interest. Reasonable charges may be imposed for dealing with extensive requests.

There will always be some cases where it would not be right to disclose information. The Code recognises this and sets out those cases in which information can be refused. These are described as cases where disclosure would not be in the public interest. The exact wording of the exemptions in the Code must be carefully examined before a request is refused but in broad terms the exemptions cover similar ground to the exemptions in the Freedom of Information (Scotland) Act. Otherwise the approach of the Code is to ensure that any information requested should be disclosed.

Under the Code the authority does not have to supply the actual documents but the commitment is to make the information available. This means that a summary can be provided where that is appropriate.

In addition, disclosure should not only be given in response to questions but should be given proactively by publishing information.

The Code can be accessed at: www.scotland.gov.uk/library2/doc01/code.pdf

Questions on the Code

1. What is the target time in which public authorities should respond to a request?

2. Can the authority charge for providing information under the Code?

3. Is the applicant entitled to demand to see specific documents?

4. Can the Code override rules in statutes which forbid the disclosure of information?

5. Does the Code just deal with access requests?

Suggested answers

1. The target response time for requests is 20 working days from the date of receipt but this may take longer if an extensive search is required or information needs to be collated.

2. An authority can make reasonable charges for dealing with extensive requests. The Scottish Executive would provide more details of charges on request.

3. The applicant cannot demand to be given specific documents although this may be what is often provided. The authority has to supply the information requested, which means that it could provide a digest or summary.

4. The Code cannot override rules in statute which forbid the disclosure of information. The Code is non-statutory and statutes will take precedence.

5. The Code includes an obligation to publish material pro-actively.

MODULE 3 - SCOTTISH PUBLIC AUTHORITIES

WORKBOOK CASE STUDY ANSWERS

1. Although the local health board and local authority will be public authorities under FOISA, the Initiative itself may not be. This is because it is owned by more than one public authority and on the face of section 6 FOISA it is not clear whether a company owned by a group of public authorities is automatically covered as it would if it was owned by one public authority although the provision could be interpreted in this way and this would be in accordance with the spirit of the Act. The Scottish Information Commissioner is expected to issue guidance on this. The Scottish Ministers may, under section 4 of FOISA add to the list of public authorities in the Act and under section 5 can designate organisations that are exercising functions of a public nature or providing public services under contract to an authority. In the absence of such an order, the Initiative may need to seek guidance on whether it is a public authority.

2. If the Initiative is a public authority it should provide the information, subject to any exemptions. If the Initiative is not a public authority, it does not have a responsibility to respond to the request. However, it may consider informing the applicant of this and/or passing the request to the local health board and local authority.

3. Each partner is required to deal with the request and provide information that it either holds or is held on its behalf, unless an exemption applies. The Initiative may be holding information on behalf of the partner authorities.

ADDITIONAL MATERIAL

Cross border Authorities

"There is an anomaly, in that the cross-border public bodies, as defined in the Scotland Act 1998, will not be subject to the Scottish regime even for information that relates to devolved matters. The Scottish Consumer Council flagged up the confusion that is likely to arise if we are not careful. The NUJ had wider concerns about the fact that, in truth, substantial areas of Scotland's governance will fall outside the Scottish regime and under the much-criticised Westminster regime…when requests for information are made to such bodies on matters that are certainly devolved, I very much hope that those bodies will comply with the spirit of the Scottish Bill. They should not refuse to provide information simply because they can." (Roseanna Cunningham - MSP; 17/01/02; c5465/5466)

Scottish Public Authorities

"It would be a very one-sided Freedom of Information regime if it were restricted to public bodies and did not cover those with public funds." (Pauline McNeill - MSP; 17/01/02; c5499)

"I do not like the definition of public authorities, which is different from the definition in the Human Rights Act 1998. A repeatedly amended list of bodies is not obviously based on principle and does not make for clear and accessible law. A huge range of bodies could be included. I defy any list to include them all. For example, I draw social inclusion partnerships to the Minister's attention. In many members' experience, they have not been models of accessible or accountable bodies. They answer to several public organisations. The Bill does not refer to bodies that are managed by several public bodies." (Robert Brown - MSP; 17/01/02; c5483)

"…some public services are provided by public companies and voluntary bodies may provide more. I am not entirely sure that the definition in the Bill is particularly apt to deal with voluntary bodies, which do not fit the dimensions of public authorities or public companies, although many of them provide substantial public services." (Robert Brown - MSP; 17/01/02; c5483)

"… the power should be limited to requiring ministers to consult the Commissioner before removing a body from schedule 1. If the committee's suggestion was accepted, it would be politically difficult to remove a body if the commissioner said no." (Gordon Jackson - MSP; 17/01/02; c5468)

"…will allow ministers by statutory instrument to add or remove from schedule 1 bodies to which the provisions of the Bill should apply. In essence that means that, although Scottish ministers are at present to be covered by the Bill, they could remove themselves by using that provision. That creates an air of uncertainty and obfuscation". (Lord James Douglas-Hamilton - MSP; 17/01/02; c5467)

"persons acting on behalf of the Scottish Ministers or of such companies" we can take that to mean that if a PFI company is established solely for one contract - and I am thinking of Bear Scotland Limited in particular - it is acting wholly and exclusively on behalf of the Scottish Executive. For the purposes of the Bill, it is therefore a public body. I do not imagine that that is what was intended, but perhaps we could brush up on that little part of the Bill and ensure that that is its practical effect." (Stewart Stevenson - MSP; 17/01/02; c5501)

Scotland and Devolution

The aim of devolution is to prevent the over centralisation of powers in one central government body. Pre-devolution, the Westminster Parliament passed all laws affecting the people in Scotland and Wales as well as England. Now, however, the United Kingdom government has devolved different powers to bodies which include the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. As a result there is increased autonomy and accountability to the people in all of the separate countries which make up the United Kingdom.

The legislation which devolves power to Scotland is the Scotland Act 1998. The Scotland Act established the Scottish Parliament and gave it full legislative competence (in other words, it can pass both primary and secondary legislation) to pass laws affecting Scotland on a wide range of issues. Schedule 5 of the Scotland Act lists the "reserved matters". These "reserved matters" for which the UK Parliament retains competence include, amongst others, foreign affairs, defence and national security. Anything not listed in Schedule 5 is deemed to be devolved and therefore the Scottish Parliament has competence to pass laws about these matters.

As the Scotland Act sets out only those things that are reserved matters in fairly general terms there has to be a mechanism for resolving different opinions. As an example, health is a devolved issue but abortion, human fertilization, embryology, genetics and xenotransplantation are reserved matters. There are likely to be some cases where it is not clear which Parliament has the power to make decisions.

The Scotland Act provides for such disputes over competence to be dealt with as "devolution issues" by the courts.

This means that the court case has to follow special rules to make sure that all the arguments are fully considered and there is an appeal mechanism to a senior UK court, the Judicial Committee of the Privy Council.

MODULE 4 - MODULE 4: PUBLICATION SCHEMES

WORKBOOK CASE STUDY ANSWERS

1. Possible factors:

• What information does the authority have a legal duty to publish? Should the scheme include this information?
• The more the authority publishes, the less it will have to disclose in response to requests for information as an absolute exemption applies to all information included in the publication scheme.
• Who will be responsible for the scheme?
• Format of information available e.g. hard copy, online, videos or CD Rom.
• Language(s) of publication.
• Copyright in documentation e.g. can it be photocopied?
• Cost and charges for publishing documents.
• How will members of the public know what information is available?
• Will staff be able to easily check whether information is available under the scheme?
• Will there be an internet service listing documents available?
• Who will handle requests for documents in publication scheme?
• Where will documents be published e.g. in library, online or available to view at offices?
• What classes of information will be published?
• Public interest in publishing reasons for decisions.
• Public interest in allowing access to information
• Does it relate to the provision of services?
• Have facts or analyses been used to make important public decisions?
• Is there a mechanism to keep the scheme up-to-date?
• Is a model publication scheme suitable?
• Check it will meet the SICs criteria for approval.
• Guidance available on publication schemes.

2. Answers should consider points raised above in context of particular publication scheme.

ADDITIONAL MATERIAL

Exercises

1. What impact do you think the requirement to have a publication scheme will have on your authority? What advantages are there to having a scheme whether for authorities or for people seeking information?

2. Where do you think it would be sensible to publish your scheme?

Exercises

3. What do you think of this part of the draft scheme? How easy do you think it is for people to understand? What changes, if any, would you make to adapt it to your authority?

4. Do you agree or disagree that legislation is the best way of getting the public sector to proactively release information?

Exercises

5. What other general information would you consider putting into a publication scheme?

6. Using the example above, pick a category from the above list, or one of your own, and populate the class with the information that you think might go into it.

Suggested answers

1. The exercise is subjective and learners may raise a number of issues relevant to their own authority. These may include:

• Cost in preparing and maintaining a scheme
• Dedicated resource for preparing and maintaining a scheme
• Records management awareness required by all staff
• New/upgraded records management systems required
• Staff may be less prepared to create information
• Knowledge of the scheme needed by all staff
• Publicity for the scheme

Possible advantages that may be discussed:

• Easier to locate documents that form part of the scheme
• May reduce the number of specific requests if scheme is comprehensive
• Improves public perception of the authority
• Streamlines records management across the authority
• Helps people to locate useful information
• Provides consistency across the public sector

2. Suggestions may include on the internet, in authority offices, libraries, local community centres etc.

3. Learners may raise the following points:

• Clear introduction explaining the purpose of the Act
• Useful to provide information on the functions of the authority
• Contact address provided up front for further details
• Useful to divide information by functions

Alternatively, learners may feel that too much information is provided before going into the classes of information and/or that dividing information by functions is not the most appropriate or logical way of listing classes for their authority

4. Points may include:

Other countries have found legislation the best way to ensure information is made available

• There has been longstanding lobbying for freedom of information legislation
• Codes of practice have already been tried
• Legislation already exists eg. In relation to environmental information
• Authorities tend not to act unless required to do so by law
• Legislation ensures that authorities are meeting the same set of standards
• Legislation can be overseen by a regulator
• Legislation ensures that appropriate resources are allocated by authorities

5. Learners may suggest:

• Details of the complaints procedure
• Details of the right to go to the Scottish Information Commissioner
• Other ways in which information may be available eg. environmental information
• An explanation of how to make a subject access request under the Data
• Protection Act 1998
• An explanation of how to make a specific request for information under FOISA

6. This will depend on the category picked by the learner. The following is an example:

NEWSLETTERS

(a) Authority wide newsletters, for example relating to budget, performance, tax etc.

(b) Service specific newsletters, for example relating to leisure, waste, health etc.

(c) Internal newsletters, for example relating to staff training, staff welfare etc.

Learners may discuss what it is and is not appropriate to include in a scheme and what happens if exemptions may apply.

MODULE 5 - RECORDS MANAGEMENT

WORKBOOK CASE STUDY ANSWERS

The notes for the proposed flyer may include any of the following reasons for records management:

• Organises information and improves accessibility;
• Ensures vital information is recorded and retained;
• Prevents unauthorised access to information;
• Controls volume of paper records;
• Information is not lost so readily;
• Electronic documents can be found quickly;
• Keeps accurate record of past events;
• Destroys out of date and irrelevant information;
• Relevant information is archived;
• Reliable evidence for legal action or disputes;
• Data protection requirements; and
• Helps organisation run efficiently and control their costs

The notes for the proposed flyer may include any of the following descriptions of what constitutes good records management.

• Having an organisational strategy for records
• Awareness of records management importance at all levels in organisation;
• Employ dedicated records management staff;

Ensuring staff are fully trained in records management and your organisation's informational needs;

• Keeping efficient filing systems (electronic and paper);
• Keeping filing systems tidy and up to date;
• Clear procedures for retention of, archiving and destroying records;
• Guidelines on appraising, storing and retrieving documents;
• Good supervision of records management activities;
• Providing adequate resources for records management;
• Ensuring all employees are aware of relevant legislation and guidelines
• Having adequate and secure storage facilities; and
• Having good systems to disseminate material.

Promotional material for a flyer could include:

• Explanations of what records the organisation holds;

Questions to staff about whether they know who is responsible for records in the authority;

• Mention of the pitfalls of poor records management;
• Reference to the Section 61 code;
• Explanation of the organisation's records strategy.

ADDITIONAL MATERIAL

Exercises

1. Do you agree that information may not be recorded in order to avoid disclosure or do you think that people like keeping information? What factors may weigh for and against people not recording information?

2. Do you know how long the records you create will be kept for? If not, where would you find out in your authority?

3. Consider records management in your authority. Draw up a flowchart of the lifecycle of a record from creation to final disposition.

Suggested answers

1. Learners may consider that working practices in creating and using information may not change and that people will continue to create and keep information where there is a need for this.

Alternatively, learners may split record creation from record keeping and consider either that record creation practices may change but records will still be kept indiscriminately or that both record creation and record keeping practices will change as part of an overall records management strategy.

Learners may feel that once employees become aware of the fact that information they create may become publicly available, this will affect the information created. On the other hand, people may continue to create information, for example, because this justifies their role.

2. Documents will be kept for different periods of time. Learners may refer to a document retention schedule or archiving policy or to their records manager.

3. Flowcharts will vary amongst learners but the following is an example (see below):

MODULE 6 - RECORDS MANAGEMENT

WORKBOOK CASE STUDY ANSWERS

1. Learner should identify three or more of the following:

• Records may give important background information to decisions;
• Documents may be relevant in future for research uses;
• Past events impact on future decisions - records provide detail of past events;
• Helps us understand past cultural, financial, political or other influences;
• Pinpoint development of national identity;
• Provides detailed evidence supporting views on Scottish history;

Transfer of important records to professional archives ensures that records are held in proper conditions.

2. Possible uses in future include:

• Analysing development of Scotland in 21st Century;
• Understanding how Scottish society functioned in the past and how it has changed;
• Understanding the process of devolution and its impact on society in Scotland;
• Reviewing approaches to issues that are still relevant in 2050 or 2100;
• Assessing decisions made by public bodies and their impact on Scottish society;
• Resolving legal or other disputes in the future.

3. Possible effects on records you create or use:

• Policy may influence way in which you draft records e.g. separate exempt and non-exempt information where possible;
• Should consider if and when records need to be transferred to NAS or an archive;
• Must consider if they are exempt in part or whole from archiving policies;
• Records may become publicly available in 30 years;
• Policy will influence the design of records and IT systems;
• How files are stored;
• How departments interrelate.

ADDITIONAL MATERIALS

Communication Exercise

The following is an example of a communication exercise that can be used to illustrate the importance of record keeping and information sharing.

Information to be provided to all participants

Mr Jones is organising a surprise birthday party for his wife. The event is to be held in a marquee and many friends and family will be attending. It has been decided that children over 12 years will sit at tables with the adults but younger children will sit at separate tables. There will be music and dancing and a toast at the end of the evening. From the information you hold you have to help Mr Jones decide how many different types of tables he should order for the marquee, which music he should order and which drink for the toast.

Information to be given to participants

Each separate piece of information should be on a separate piece of paper and different members of the group should be given different pieces of paper.

1. The caterer can supply either champagne and lemonade for the toast or red and white wine for the toast or whisky and lemonade for the toast. You have to choose one of these options.

2. The marquee will comfortably fit eight adult tables and five child tables. It can squeeze in nine adult tables and five child tables or twelve adult tables and three child tables but this will not leave much room for the band or dancing.

3. 50 adults and 20 children will be invited to the party.

4. An adult table seats 6 adults, a child table seats 4 children.

5. Mrs Jones prefers champagne to any other drink.

6. 10 of the adult guests do not like champagne.

7. 6 of the adult guests are teetotal.

8. Mrs Jones does not like pop but does like traditional music.

9. Three bands are available for that evening, a bagpipe band with 25 players, a pop group or a jazz quartet.

MODULE 7 - RIGHTS OF ACCESSWORKBOOK CASE STUDY ANSWERS

Basic points:

Request must be in writing or in some permanent form e.g. email, video tape or handwritten note.

• State name of applicant i.e. Robbie Largo.
• State preferred format for receiving publication e.g. electronic, email or hard copy.
• Giving as much information as possible is helpful, but provided the request is in writing from a named individual the authority must comply, even if you do not state that the request is a freedom of information request.

Enquire about Scottish Executive broadband policy in as much detail as possible:

• Has the SE got a written policy on broadband?
• What is it called?
• When was it published?
• Who is responsible for it?

Request any other relevant information:

• How many homes in Scotland have broadband?
• Which geographic areas have broadband?
• Are there any incentives to IT providers to supply broadband?
• What can the SE do to help?
• General information re government funding for broadband/IT;
• Policies on loans for start up companies (can SE help?);
• Predicted future investment in broadband in rural areas;
• General rural area policies on technology development;
• Procedures for requesting broadband in rural areas.

ADDITIONAL MATERIALS

Exercise

The local area has the following restaurants: 20 Chinese restaurants, 26 Indian restaurants, 5 French bistros, 10 Italian pizza restaurants, 3 Spanish Tapas bars, 23 pubs serving food and 8 cafés serving greasy chips.

A Freedom of Information (Scotland) Act request has been made for details of all health inspections made in the previous twelve months. These show that every single Indian restaurant has been inspected but there have been no inspections at all of the cafés, Spanish Tapas bars, French Bistros and very few inspections of the pubs, Italian restaurants and Chinese restaurants.

Different members of the group should write short pieces of the following nature:

1. A press statement by the Head of Public Health explaining the discrepancy.

2. A letter to the local paper by an enraged Indian restaurant owner.

3. An opinion piece by a local journalist for the local paper.

At the conclusion the group should be asked to discuss the different perceptions from which the information was viewed and draw out any lessons in terms of information provided.

MODULE 8 - DEALING WITH AND RESPONDING TO REQUESTS FOR INFORMATION AND

FEES - PART 1

WORKBOOK CASE STUDY ANSWERS

1. Sabine Dupont's request is not repeated, vexatious or multiple.

2. Claire Cowan's request is not repeated, vexatious or multiple.

3. Save Our Deer Stalking's Request is not a repeated, vexatious or multiple request.

• It is more general than Sabine's request;
• The request is for different information;
• It has been made by an organisation rather than Sabine herself.

4. The various journalists' requests appear related:

• Could the tourist agency make the information more readily available e.g. on its website?
• Would the cost exceed the threshold?
• However, on balance they appear to be from separate magazines and are therefore not repeated, vexatious or multiple.

5. The 50 requests are from separate people:

• They all request the same information;
• They are made in a short period of time;
• They appear to form part of a strategic campaign;
• It may not be possible to argue that each individual request is vexatious however fees regulations may provide that where multiple requests are made and the cost of complying would exceed the prescribed amount the authority may not be obliged to comply.
• The cost of responding to all 50 requests may exceed the prescribed amount - is there an alternative means of providing the information?

6. The final journalist's request is not vexatious, repeated or multiple:

• An applicant does not have to give reasons for requesting information;
• The information belongs to the public and should be available, unless exempt;
• The information is unlikely to be exempt;
• The request should be met.

ADDITIONAL MATERIAL

Exercises

1. In Parliament, Jim Wallace said that the right of access in the legislation is specifically designed so that it will be exercised. How easy do you think the right of access is to exercise and who do you see using it most?

2. Do you agree that local authorities or other public authorities will need to have information officers? What other resources might an authority need to consider to enable it to deal with requests?

3, Write a job specification for an information officer in your authority.

4. Write a list of the pros and cons of charging applicants for information.

Suggested answers

1. Learners may discuss factors that make the right of access easy to exercise as including:

• Duty to provide advice and assistance
• Information on how to make access requests available from publication schemes
• 20 working day response time
• Complaints procedure and reference to the Scottish Information Commissioner
• Ability to express a preference for the format of the information

Factors that go against making the right of access easy to exercise may include:

• Exemptions
• Fees
• Requirement to adequately describe information

Learners may have different opinions on who may use the legislation but these may include the media, politicians, students, campaigners, schools, consumers, tenants and patients.

2. The response to this question will depend on the learners' own experiences. Some learners may come from organisations that already have information officers in which case opinions may be positive or negative. Learners may feel that a dedicated resource is beneficial to the authority and to the public or that each department should carry responsibility for freedom of information.

Other resources to enable an authority to deal with requests may include records management systems, training packages, software for dealing with access requests etc.

3. A job specification may include:

To ensure authority is fully compliant with the requirements of the FOISA [and the Data Protection Act 1998]

• To ensure authority keeps abreast of current guidance and best practice To develop policies for handling access requests and to monitor the effectiveness of these To provide authority wide training and to ensure that staff are aware of their responsibilities under the FOISA [and the DPA]
• To provide general and specific advice and guidance in relation to the implications of the FOISA [and the DPA] and how to ensure compliance is achieved and maintained
• To identify areas that may be at risk of being non-compliant, to work with appropriate teams to remedy such risks and to advise senior managers and Directors of areas of continued non-compliance
• To ensure that all contracts with third parties comply with the requirements of the FOISA [and DPA] and to provide advice and guidance to tenderers and contractors and those preparing such contracts
• To ensure that the publication scheme is regularly reviewed and maintained and resubmitted for approval when appropriate
• To liaise with appropriate IT managers, records managers, internal departments, third parties and the Scottish Information Commissioner in relation to FOISA [and DPA] matters.
• Management and financial responsibilities
• Previous experience (eg. Training skills, records management skills, customer service skills, experience in the public sector)
• Personal qualities (eg. Team player, IT skills, decision-making skills, communication skills, adaptability etc.)

4. Pros of charging for information:

• Covers some of the authority's costs
• Discourages vexatious requests
• Ensures that a value is placed on information
• Encourages the authority to invest in records management

Cons:

• Discourages requests from applicants that cannot afford fees
• Effectively imposes a tax on information
• Does not incentivise the authority to proactively make information available

MODULE 9 - DEALING WITH AND RESPONDING TO REQUESTS FOR INFORMATION AND FEES - PART 2

WORKBOOK CASE STUDY ANSWERS

The answers to the first question, How difficult to you think it will be to respond within 20 working days, will vary from organisation to organisation and no specific answers are suggested here.

The following suggestions are made for dealing with requests if response will not be possible within 20 days:

• Acknowledge receipt of request;
• Advise applicant immediately you realise response will take longer than 20 days;
• Where possible provide an explanation for delay;
• Provide realistic timescale for providing information and advise applicant immediately if this will not be met;
• Request clarification of information requested if necessary;
• Request further information regarding request to help locate it;
• Give the applicant any part of the information which is available within 20 working days.

Exercises

1. Write an information leaflet (no more than 1 page of A4) aimed at the general public, explaining how they may make a request for information.

2. The draft section 60 Code states "The disclosure of information, whether proactively or in response to specific requests, serves to strengthen government and increase public involvement in decision-making". How do you think access to information increases public involvement in decision-making?

3. Consider what changes you would make in your organisation, if any, to ensure that applicants do receive "a courteous efficient service".

Suggested answers

1. A leaflet aimed at the public may include:

• Explanation of the concept of freedom of information
• Explanation of publication schemes and how information can be accessed via a publication scheme
• Explanation of the right of access including:
  • Request in writing
  • Description of information
  • Format of information
  • Fees
  • Response
• Explanation of the fact that exemptions may apply
• Description of complaints procedure
• Description of other rights e.g. subject access
• Contact for further details

2. Access to information may increase public involvement in decision making because:

• Decision-makers will understand that their decisions and the information behind them will be publicly available which may influence how they reach such decisions.
• Decision-makers will be accountable to the public for the decisions they make if these are publicly available.
• Decisions may be made consistently where past decisions are publicly available.
• Protects against corruption

3. Learners may discuss:

• Authority-wide training and, in particular, training for front-line staff.
• Allocating responsibility for ensuring that timescales are met.
• Helpfulness of responses given to applicants.
• Tracking software for requests.
• Records management issues.
• Staff "buy-in" to freedom of information.

MODULE 10 - MIDWAY REVIEW

WORKBOOK CASE STUDY ANSWERS

1. Answers will vary depending on the particular organisation. Discuss information relating to: equality; children; the homeless; literacy; disability; older people; and the provision of materials in languages other than English. Ensure that staff are made aware of the interface with services that may assist those making requests and the fact that this is an important element of customer care.

Possible answers:

• Equality:
  • treat all requests in same manner;
  • ensure applicant understands procedure;
  • make the procedure readily available in different languages;
  • make service users aware of their rights;
  • do not question reasons for requests;
  • provide as much information as possible in every case;
  • take time to identify what the applicant is requesting.
• Children:
  • ensure they understand the procedure;
  • consider requests carefully and discuss with applicant;
  • suggest types of information they might find helpful;
  • do not refuse request because it is made by a child;
  • consider taking request over phone and writing to get confirmation if necessary.
• Homeless:
  • how will you ensure applicant receives information requested?
  • consider providing information electronically or making it available at offices for applicant to collect.
  • Applicants with reduced literary abilities:
  • consider taking verbal requests and recording them on tape (with applicant's consent);
  • discuss details of request in full to ensure request is full and accurate;
  • provide information in a non-literary format where possible e.g. on audio or video tape.
• Disabled applicants:
  • identify nature of disability;
  • be sensitive to disability e.g. if sight or hearing is impaired consider this when responding to applicant;
  • can information be provided in braille or audio format?
  • discuss and provide assistance in handling application whenever possible and needed.
• Older people:
  • take time to explain procedures for application;
  • consider whether applicant has any particular disabilities;
  • ensure you understand what information has been requested;
  • respond in an appropriate manner e.g. older people may not be so familiar with the internet or electronic forms of communication.
• Applicants who speak other languages:
  • no obligation to translate or respond in another language but consider whether assistance could be offered;
  • respond and provide information in requested language where possible;
  • where possible do not charge for providing translation of information.

2. Learners should discuss in relation to their organisation. For example, other applicants that require advice and assistance may include voluntary organisations, organisations or individuals overseas that are unfamiliar with the legislation, students etc.

MODULE 11 - ACCESS TO ENVIRONMENTAL INFORMATION

WORKBOOK CASE STUDY ANSWERS

1. Learners should request information relating to:

• the number of ruddy ducks in the UK, Scotland and Harrisay;
• any examples of harm caused to the Harrisay ecosystem by ruddy ducks;
• any research into the benefits ruddy ducks bring to the local community and environment;
• the role of the bird sanctuary in the Harrisay economy;
• the costs of eradicating a particular species of bird from a specific geographic area;
• possible funding for eradication proposals;
• effects, cost and environmental repercussions of pilot eradication schemes already carried out;
• how was the white headed duck conserved in Spain?

2. This is most probably a request under environmental information regulations because:

• The information has a bearing on the environment;
• It concerns the state of living organisms e.g. birds or humans;
• It concerns human life, built and cultural sites;
• It concerns a force or activity that affects the environment.

3. Key differences between environmental information regulations and FOISA requests:

• FOISA requests must be in writing; environmental information regulations requests can be oral.
• FOISA response time is 20 working days; environmental information regulations response time is 2 months.
• Different charging regimes (environmental information regulations reasonable charges; FOISA charges for extensive searching or associated work).
• Different exemptions (in some areas FOISA exemptions are wider).

NB. Learners should note that new regulations are due to be brought into force from January 2005.

ADDITIONAL MATERIAL

The Environmental Information Regulations 1992 ("EIRs") that are currently in force can be found at www.defra.gov.uk/environment/pubaccess/guidance/09.htm and detailed guidance on the EIRs is available at www.defra.gov.uk/environment/pubaccess/guidance/index.htm . However, Scotland will develop revised Regulations under FOISA in order to implement the new EC Directive 2003/4/EC on public access to environmental information. The new Directive takes account of advances in technology, reflects international developments in access rights (the Aarhus Convention) and also learns from the experience of the earlier regime. It is expected that the revised Scottish Regulations will be brought into force in January 2005, to coincide with the introduction of the FOISA.

Consultation on the draft Regulations is expected to take place during Spring 2004 - keep an eye out for a copy of the draft Regulations on the Scottish Executive website ( www.scotland.gov.uk/Topics/?pageID=198 ). It is not anticipated that the revised Regulations will vastly differ from the current EIRs.

Exercise

You are the Information Officer for Birds Scotland. Make a bullet point list as to the things you will take into account when responding to the request from SORD.

Suggested answer

Learners may raise the following points:

• Decide whether this is a request under environmental information regulations or FOISA
• Is it a valid request?
• Do any exemptions apply?
• Consider timescales and fees.
• Response to applicant.

MODULE 12 - EXEMPTIONS FROM THE RIGHT OF ACCESS - PART 1

WORKBOOK CASE STUDY ANSWERS

Learners may include any of the relevant factors listed in paragraph 12.2.4 of the workbook and may include any of the following in their list of factors to take into account:

• individuals should be able to see how and why important decisions are made;
• individuals should be able to see that justice is done;
• citizens should be able to check public servants and politicians are acting honestly and properly in spending public money;
• individuals should be able to contribute to debates on how society is run;
• citizens should have access to information to help them protect their families and make decisions about how to live their lives;
• the absence of any substantial prejudice caused by disclosure of information, for example prejudice to the council in carrying out its functions; and
• whether available guidance favours disclosure.

Learners may note that the section 60 code provides guidance on applying the public interest.

Learners may include any of the relevant factors listed in paragraph 12.2.4 of the Workbook and may include any of the following in their list of factors not to be taken into account:

• information may lead to bad publicity for the authority;
• decisions and activities of the authority may be called into question on disclosure;
• any insignificant or minor prejudice to the authority's operations;
• the applicant's reasons for wanting the information; and
• any risk of misinterpretation of the information.

MODULE 13 - EXEMPTIONS FROM THE RIGHT TO ACCESS - PART 2

WORKBOOK CASE STUDY ANSWERS

1. Relevant exemptions learners should consider are:

• Section 27 - information is intended for future publication
• Section 33 - disclosure would prejudice commercial interests of private companies, research charities and academic institutions involved in developing and testing the software.

2. Learners may identify the following key points:

• would disclosure prejudice substantially development of product or exercise of functions?
• does authority own the software?
• has authority agreed to treat software or other trade secrets as confidential information?
• would disclosure of software aid development of product to assess types of cancer?
• the development has been funded by public money and its exploitation would be in the public interest;
• is it in public interest to disclose?

ADDITIONAL MATERIAL

As an employee of the Scottish Executive based in the IT department, you receive a letter from a Robbie Largo requesting information about the broadband strategy of the Scottish Executive.

Baffled as to why it has come to you, you add it to your in-tray with the intention of having a look at it when you've caught up with your holiday backlog.

A couple of weeks later you get round to looking at it again. A search of your website for "broadband strategy" reveals around 100 documents including a document entitled "Connecting Scotland - our broadband future. Making it happen". A cursory glance at this shows that it seems to cover some of the general issues and you're sure that this will do. Going to the effort of finding the relevant department doesn't seem to be justified, especially when it may mean that they get you to sift through the documents and write a detailed reply. You've got enough to do already.

You have a quick look at the guidance note on the Freedom of Information (Scotland) Act 2002 that you were given on induction and note that you have to respond in 20 working days - you're still in plenty of time then. A scan of the exemptions reveals one for "information otherwise accessible" - excellent! Satisfied that you've done your best and got the letter off your desk within the timescale you dash out the following reply.-

Exercises

1. Is this a response that complies with the Act? What other considerations should have been taken into account?

2. How should the Executive ensure that this is not repeated?

3. If Robbie Largo is unsatisfied with this response, what should his next step be?

Suggested answers

1. The response may be deficient in a number of respects:

• lack of advice and assistance
• letter does not explain where the information is available
• it does not appear that a proper search has been carried out
• unless a proper search has been carried out, the exemption should not automatically be relied on
• the response does not explain why the exemption applies
• the response does not refer to the complaints procedure or the right to refer to the Scottish Information Commissioner.

2. The Executive may consider further staff training and awareness and ensure that each member of staff is aware who requests for information should be referred to.

3. Robbie should first seek information on the authority's own complaints procedure and raise his complaint in this way. If he is still unsatisfied he should request a decision from the Scottish Information Commissioner.

MODULE 14 - EXEMPTIONS FROM THE RIGHT OF ACCESS - PART 3

WORKBOOK CASE STUDY ANSWERS

Learners should identify the following relevant exemptions:

Section 41 - Information relating to communications with the Royal Family or Household (NON-ABSOLUTE EXEMPTION);

• Section 38 - Personal data (ABSOLUTE EXEMPTION);
• Section 36 - Confidential information (ABSOLUTE EXEMPTION);
• Section 25 - Information otherwise available (ABSOLUTE EXEMPTION).
• Section 27 - Information intended for future publication (NON-ABSOLUTE EXEMPTION)

Where a non-absolute exemption applies, learners should identify that the public interest test should be applied.

MODULE 15 - DATA PROTECTION REFRESHER MODULE

WORKBOOK CASE STUDY ANSWERS

ADDITIONAL MATERIAL

It is recognised that not all trainers will have an in depth knowledge of data protection legislation. Where this is the case, trainers should themselves work through the learning materials in the workbook on this module and supplement this by additional reading. The best source of information is the UK Information Commissioner's website at www.informationcommissioner.gov.uk.

Start by looking at the Legal Guidance on the site (click on data protection, then on public sector) as this goes through all the provisions of the DPA explaining them. Then, if you wish to find out more about specific areas of the legislation, for example subject access or how the legislation relates to data sharing or CCTV, follow the links to further guidance on the site. Guidance on subject access is likely to be of most relevance to the training. Under the freedom of information link on the site there is also a guidance note on personal information which, although made by reference to the UK Act, is likely to reflect the position in Scotland.

Before you carry out the training on the data protection interface, it may also be useful to speak to the person or persons responsible for data protection in your organisation. This may give you more of an understanding as to how data protection impacts on your organisation. It may be appropriate for that person to come along to the part of the training that relates to data protection to provide input and assistance.

Test yourself using the following questions on data protection.

QUESTIONS

1. Which one of the following can be a data subject -

(a) Victoria Station
(b) Queen Victoria
(c) Victoria Beckham
(d) Victoria Monument

2. Data protection law doesn't apply to dead people. True or False?

3. Foreign nationals cannot be data subjects. True or False?

4. Data controllers make the decisions about what personal data will be collected, used, stored, disclosed and destroyed. True or False?

5. Public sector bodies such as local authorities are exempt from complying with the Data Protection Act. True or False?

6. The employees of a data controller are not treated as separate data processors when they process personal data as part of their jobs. True or False?

7. All contracts where a data controller appoints a data processor must be in writing. True or False?

8. Which of the following items are not capable of being personal data -

(a) name
(b) address
(c) telephone number
(d) unaddressed leaflet put through the letterbox

9. Which one of the following is sensitive personal data -

(a) name
(b) salary details
(c) telephone number
(d) trade union membership number

10. Recording the details of a staff member's illness on an attendance record is sensitive personal data. True or False?

11. Data controllers cannot begin processing without a lawful reason to justify their processing. True or False?

12. Data controllers can choose which of the eight principles they comply with. True or False?

13. Data protection notices to ensure fair processing can be given as part of a telephone conversation. True or False?

14. What is the fee usually associated with making a subject access request?

(a) no more than 10
(b) free of charge
(c) no more than 35
(d) no more than the cost of photocopying the personal data

15. How long does the data controller get to respond to a subject access request?

(a) 40 days from receipt of the written request
(b) 40 days from receipt of the written request, fee, and all other information which can be reasonably required to locate the personal data and identify the data subject.

ANSWERS

1. (c)
2. True
3. False
4. True
5. False
6. True
7. True
8. (d)
9. (d)
10. True
11. True
12. False
13. True
14. (a)
15. (b)

MODULE 16: INTERFACE WITH DATA PROTECTION - PART 1

WORKBOOK CASE STUDY ANSWERS

1. A subject access request under the Data Protection Act.

2. Requests by data subjects for their personal data, even if made under FOISA are exempt from the FOISA. If you are sure that the request is from Paul it will fall to be treated as a subject access request under the DPA and so all personal data on Paul should be supplied. There is an exemption from subject access and the rights for unstructured personnel information and so this can be excluded. Paul could also request, for example, policy information surrounding the recruitment process, in which case this part of the request would fall under FOISA.

3. Under the DPA an individual can request that a body holding inaccurate personal data relating to him must rectify the data. A complaint can be made to the UK Information Commissioner who will consider whether or not the body has been in breach of the DPA. Paul could also sue the authority under the DPA claiming loss arising as a result of a breach of a data protection principle. His first step, however, may be to write to the authority and see if it is willing to rectify the situation. If the inaccuracy is in his personal file he will have no remedy under the DPA because of the new exemption.

ADDITIONAL MATERIAL

See additional material for Module 15.

In order to understand the new category of data, you need to first understand what the DPA categories of data are before the addition.

The following is the definition of data in the DPA. Category (e) in italics is the new type of data inserted by freedom of information legislation.

""data" means information which -

(a) is being processed by means of equipment operating automatically in response to instructions given for that purpose,

(b) is recorded with the intention that it should be processed by means of such equipment,

(c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system,

(d) does not fall within paragraph (a), (b) or (c) but forms part of an accessible record as defined by section 68, or

(e) is recorded information held by a public authority and does not fall within any of paragraphs (a) to (d)"

In summary, category (a) relates to computerised information, category (b) to information intended to be put on computer, category (c) to relevant manual files, category (d) to accessible records such as housing records and category (e) to anything that is held by a public authority and does not fall within any of the other categories.

It is category (e) that widens the scope of subject access for public authorities and the learning materials for the workbook on this module look at this.

MODULE 17 - INTERFACE WITH DATA PROTECTION - PART 2

WORKBOOK CASE STUDY ANSWERS

1. A FOISA request.

2. Yes. The authority requires explicit consent from Mandy or another ground from Schedule 3 of the DPA before it can release her details to any third party, unless she has previously given such consent.

3. Learners should identify the following:

• Mandy's position depends on whether or not the purposes for which her information was being collected were clearly notified to her.
• If she signed a document giving explicit consent to disclosures of information, then the disclosure may be fair and lawful.
• She could argue that if she did give consent that it was not explicit since she was not aware of the intended future use.
• She could object to the processing on the grounds that it may cause her damage or distress.
• She could have simply not allowed the hospital to disclose the information by opting out at the point of collection.
• Medical professionals will also have a separate duty of confidentiality to Mandy.

4. Only if the hospital has grounds for processing for the act of anonymising the data, they would not need grounds for processing for disclosure since it is not personal data.

ADDITIONAL MATERIAL

See additional material for Module 15.

You may be asked what effect the Durant v FSA case has on data protection and freedom of information. In this case, the English Court of Appeal considered the definition of personal data and relevant filing system and the result appears to narrow the scope of what is personal data. The effect of this would be to widen the scope of what is available under freedom of information, as if something is not personal data, then the personal data exemption will not apply. The consequences of the decision are still under review at the time of writing and you should look at the UK Information Commissioner's site for further guidance.

Case study

A reporter on a national tabloid, the Shock 'Em and Knock 'Em Daily Echo, receives a tip-off from an informant that a butcher in Surbiton is running a wife swopping circle. He goes to investigate and finds that there is no wife-swopping circle but there have been a number of local divorces in which several couples have been involved. All are young and they have no children. He publishes details of the affairs of the couples under the heading SEX CHANGES IN SURBITON. The story is true. The couples had originally been friends who had met at the butcher's house. There had been liaisons and affairs resulting in the original couples being re-arranged as a lesbian couple, a gay couple, a happy threesome,a straight couple and an embittered former husband left divorced and alone. None of them are public figures. Shock 'Em and Knock 'Em Daily Echo goes ahead with a big sensational splash story.

In essence the story is true so they cannot sue for defamation. They are made a laughing stock. Their privacy is invaded. Their behaviour had no impact on any other person.

Exercise

Do you consider that the law should protect the privacy of the butcher and his friends? Should the State have ensured some way of protecting them from the power of the newspaper to publish and expose their private lives?

Suggested answer

Learners may discuss the following:

• the story is true therefore there is no reason why it should not be published
• no-one can be affected or hurt by the story other than those involved
• freedom of the press is important and should not be restricted
• these are not public figures therefore there is no real public interest in the story and the

State should ensure the privacy of these people is protected

• this is private information about private individuals which should always be protected
• there should be rules or a code of conduct that governs what the press can publish
• learners may note that there are wide exemptions from the Data Protection Act 1998 for journalistic purposes.

MODULE 18 - HUMAN RIGHTS

WORKBOOK CASE STUDY ANSWERS

Arguments for retention:

• Helps in detection of crime - police are collecting information to protect both the children and the public from the dangers posed by joyriding. The police have common law powers to do this;
• There is public interest in prosecuting criminals and protecting national security and the information is helping to do these things;
• The collection is proportionate as it is only about children who are thought to be a possible threat;
• No breach of the children's right to private life in collecting and keeping this information as it comes from published sources and cannot be regarded as private.

Arguments against retention:

• There is no proven connection between joyriding and martial arts participation so it is disproportionate for the police to keep these records;
• The fact that the information came from "public" sources is not relevant. It was published for a limited specific purpose and the police are not justified in collecting it and using it for another purpose without the consent of the children or their parents;
• The police are not entitled to collect intelligence databases on children who have never been in trouble on a "just in case" basis. They have to be able to justify the collection and cannot do so.

ADDITIONAL MATERIAL

HUMAN RIGHTS AND FREEDOM OF EXPRESSION

Human Rights Act 1998 (HRA)

Public authorities have various powers over the lives of citizens and over businesses. In a democracy ordinary citizens and businesses are entitled to a number of rights and freedoms, like the right to free elections. The HRA sets limits on how public authorities can behave when they are exercising those powers; another way of putting this is that it gives people a guarantee that their fundamental rights will be respected by the State. The HRA can be argued against a public authority in Scotland in ordinary court proceedings.

Human Rights Act 1998

This Act applies throughout the UK. It came into force on 2nd October 2000. All public authorities in England, Wales, Scotland and Northern Ireland are subject to it. However, by virtue of Section 57(2) of the Scotland Act 1998, members of the Scottish Executive were restricted from acting in a manner incompatible with Convention Rights from 6 May 1999.

Convention Rights therefore, had to be considered by the Executive before 2nd October 2000.

How does it relate to the European Convention on Human Rights and Fundamental Freedoms (the Convention)?

The UK is a signatory of the Convention and remains bound by it. This means that in all that the UK does it must still comply with the Convention. The HRA does not replace the Convention.

What are the rights protected by the Convention?

The rights are set out in Schedule I to the HRA and are called the Convention Rights. Each right is set out in a separate Article. Several articles are included in Protocols to the Convention which have been agreed post 1950. The Articles are taken word for word from the European Convention. The Convention dates from 1950

If they have to make a decision on these Rights, UK courts have to consider them in the same way that the European Court of Human Rights would do.

What kind of rights do we have as citizens?

There are different kinds of rights and the way that they apply varies depending on the right involved.

Some rights impose "positive obligations" on the State in relation to the citizen. Examples of positive obligations on the State are the obligation to provide a proper justice system which provides for fair and open hearings and the obligation to provide a proper system of education for children. If a public authority fails to do any of the things which it has positive obligations to do under the HRA the aggrieved citizen can take a court action against the public authority .

Some rights impose restraints on the actions of the State or "negative obligations". An example of a "negative obligation" is the obligation not to use torture or inhuman or degrading treatment or punishment.

The State may also have to intervene between two or more private parties to ensure that the rights of the weaker party are protected. This is called the "horizontal effect". There is still considerable legal uncertainty in this area. The uncertainty arises because it is not clear how far the courts will apply the Convention Rights between two or more private parties.

How the horizontal effect works

The horizontal effect comes into play where one private party has more power than another and the State has an obligation to step in and protect the rights of the weaker party. Where privacy is concerned this raises the issue of restricting the press.

Sarah Cox, Naomi Campbell and Catherine Zeta-Jones have all taken advantage of the horizontal effect of Article 8 of the HRA

The Human Rights Act and the devolution settlement

As is seen in Module 2 the powers of the Scottish Parliament are limited to dealing with devolved matters. We have also seen above that the UK has to abide by the Convention Rights. When the devolution settlement was being agreed it was necessary to ensure that the Scottish Parliament and Administration would also be bound to obey and comply with Convention Rights.

The solution is found in the Scotland Act. An Act of the Scottish Parliament cannot be passed which is incompatible with the Convention rights. (section 29 Scotland Act). Members of the Scottish Executive cannot do any act or make any subordinate legislation if it would be incompatible with any of the Convention rights or the law of the European Union (section 57(2) Scotland Act).

Devolution issues and Human Rights questions

If an Act passed by the Scottish Parliament is found to be outside its powers either because it covers a reserved matter (see module 4) or because it would breach the Convention, the Judicial Committee of the Privy Council can rule against it. This is a serious outcome. Only one case has so far been argued as a devolution issue under this procedure.

This does not mean that no cases on human rights have been heard in the Scottish courts since May 1999. In fact, lots of human rights points have been raised in ordinary courts trying criminal cases. The special procedures for the Scotland Act have not been applied to those. It is only used where the litigant is arguing that the Parliament should not have been able to pass a particular aspect of a law or when there is any question about whether a function is exercisable within devolved competence or in or as regards Scotland and any other question arising by virtue of the Scotland Act about reserved matters.

Convention Rights, Privacy and Freedom of Information

There is quite a complex relationship. The Data Protection Directive states that its purpose is to protect the privacy of individuals in relation to the processing of information. The Directive therefore is a way of applying rights under Article 8 to the use of information.

However Article 8 is wider than just information uses and can cover areas as diverse as sexual identity and protection from night flights over one's home.

The European Court of Human Rights has also ruled that individuals can have a right to access information about themselves relying on Article 8. This is represented in UK laws by the right of subject access under the DPA.

Further material on human rights is available from [websites].

Exercises

1. Western Scotland has suffered from an invasion of Martians. The Scottish Executive wishes to issue an ordinance that it is compulsory to exterminate Martians on sight. Is it able to do so under the HRA? Would your answer be different if the Western Isles had been invaded by lawyers, killer ants or Frenchmen?

2. A Scottish Council is concerned at the state of some of its flats. The flats have communal drying areas in the basements and the tenancy agreement states that wet washing must be hung there and not in the flats. The flats do not have sufficiently robust ventilation to deal with clothes being dried in them. Several of the flats in the block are suffering from severe condensation problems and the Council is convinced that the tenants are drying clothes in the flats rather than bother to take them down to the basement areas. The Council wants to install CCTV in the flats to check whether this is the case. Do you consider that it can do so under the HRA?

Suggested answers

1. The HRA relates to humans not Martians, however if Martians were discovered and invaded Western Scotland, a court could interpret the HRA as extending to Martians if it felt able to do so. If the invasion was by lawyers or Frenchmen, the HRA would apply and the Executive would have to take account of human rights considerations in issuing its ordinance. If the invasion were by killer ants, the HRA would not protect them but human rights issues may arise, for example if destroying the ants meant destroying property, in which case the rights of the owners/occupiers would need to be considered.

2. The Council would have to consider whether this was an interference with the Article 8 right. Installing CCTV in people's homes is likely to be a major intrusion. Therefore the council would have to consider:

• is it a lawful interference?
• the tenancy agreement may give the Council a legal right is it intended to protect one of the specified interests?
• it may be necessary for the protection of health or the protection of the rights of the Council in the tenancy agreement
• is the interference reasonable and proportionate?
• the Council would have to consider if the degree and nature of the interference can be justified in this particular case.

In view of the severity of the intrusion the Council may conclude that other measures may be more appropriate, for example, putting up signs or issuing warning leaflets or monitoring use of the basement.

Even if the Council decides to go ahead there may be data protection implications in the scheme.

MODULE 19 - COMPLAINTS AND ENFORCEMENT

WORKBOOK CASE STUDY ANSWERS

1. Points authority should include in response:

• Notification of whether it confirms decision complained of (with or without modifications) or substitutes a different decision together with reasons supporting its conclusions.
• A full explanation of the reasons why this information has been deleted from the authority's system should be given (i.e. refer to review of records management);
• Explain the review of records management was carried out to ensure compliance with the data protection legislation, which requires the authority to keep information relating to individual experts accurate, up to date and for no longer than is necessary;
• Explain that even if the authority had the information it may not be able to disclose it to a third party as the data protection legislation may not permit such disclosure without the consent of the individual experts concerned;
• The authority should advise the contractor that, if he is unhappy with this response, he is entitled to complain to the Scottish Information Commissioner.

2. Commissioner's options:

• If he considers request for review is vexatious, he may decide not to proceed with it;
• Serve information notice requesting information reasonably required from the authority or contractor to enable Commissioner to consider complaint;
• Try to arrange a settlement between the authority and contractor;
• If no settlement is reached, the Commissioner should issue a decision notice stating whether or not the authority should have provided the information requested;
• Decision notice can require authority to take specific action to remedy failure to provide information requested.

3. Learners should identify the following as relevant points of advice:

• If the authority directed the destruction of the information, then it has committed a criminal offence;
• The authority is also liable for the actions of its employees and so if an employee destroyed the information, then the authority has committed a criminal offence;
• The individual employee or employees who destroyed the information may be personally liable to prosecution for a criminal offence, if they were not instructed to carry out the destruction by a senior employee or manager;
• A senior employee who instructed a junior employee to destroy the information is personally liable to prosecution for a criminal offence;
• Any other person (e.g. a contract cleaner) who destroyed the information under the authority's direction has committed a criminal offence;
• The authority should inform the police or procurator fiscal that it suspects a criminal offence has been committed.

ADDITIONAL MATERIAL

Exercises

1. In the Act a dissatisfied applicant has to follow a set process - he or she can complain first to the authority and then, if still not happy, can go to the Commissioner. The applicant cannot take a case directly to the courts as a starting point. Why do you think that the Parliament decided to limit the remedies open to applicants in this way? List the arguments for and against excluding the powers of the courts. Do you agree that this was the right decision?

In carrying out this exercise remember that many applicants who object to the decisions of authorities may be businesses like the one in the case study above.

2. The rules about reviews are different from those in the UK Act. In the UK Act public authorities are meant to have a complaints procedure but it is imposed by the Code of Practice rather than being part of the Act. Do you think that the Scottish approach will prove more effective?

Suggested answers

1. Learners may discuss:

• proceeding through the courts can be lengthy and costly and applicants are better served by a regulator
• a regulator can be more involved in mediating a dispute and can operate more flexibly
• decisions by a regulator may be reached more quickly, meaning that where the decision is in favour of the applicant, the information is more quickly available
• authorities may take compliance more seriously where court involvement is possible
• court decisions are generally binding on equal and lower courts which would give consistency and certainty.

2. Learners are likely to conclude that the Scottish requirement for review will prove more effective as this is statutory rather than part of a code of practice.

Although authorities elsewhere in the UK will be required to comply with the code of practice in order to meet their duty to provide advice and assistance, the Scottish provision has the advantage of including timescales for review.

MODULE 20 - FINAL REVIEW

WORKBOOK CASE STUDY ANSWERS

Examples of Learners' possible responses to Task 2:

• It is important to prepare a comprehensive publication scheme;
• All public bodies should ensure that they have a good records management system in place and that records are regularly reviewed;
• FOISA should improve public bodies' approaches to the dissemination of information to the public;
• Information held by public bodies usually belongs to members of the public;
• Before responding to a FOISA request, you should consider whether any of the exemptions apply to the information;
• You must respond to all FOISA requests made in writing or some other permanent form;
• The public interest in releasing information in response to a FOISA request must always be balanced against the harm that its release may cause;
• Responding to a FOISA request may result in a breach of relevant data protection legislation and you should ensure that you have consent to release personal data relating to an individual;
• You must balance the privacy and freedom of expression rights under the HRA to determine if you should provide information requested under FOISA;
• A request for information may be made under the FOISA or environmental information regulations and you should be aware of the different types of information to which each of these apply;
• All FOISA requests must be dealt with and a response sent to the applicant within 20 working days of the request being received by the public body;
• You should be familiar with the FOISA review procedure and an applicant's right to complain to the Scottish Information Commissioner.

WEBSITE ADDRESSES

Scottish Executive
www.scotland.gov.uk/FOI

Alternatively, from the main SE site, the FOI website is found under the heading Topics, sub category Government.

The site includes information on the development of codes and on implementation. The Scottish Executive Frequently Asked Questions and Overview documents are found here. There are links to other sites and other material including the public records strategy.

Scottish Information Commissioner
www.itspublicknowledge.info

The Commissioner also produces a factsheet on the FOISA and a set of Frequently Asked Questions which are available here. The site has the Commissioner's guidance on publication schemes and offers an on-line news service to those who register with it. The FOISA and codes of practice can be accessed directly through the site.

National Archives of Scotland
www.nas.gov.uk

A section of the site is devoted to the FOISA. It offers a generic model action plan for developing records management arrangements compliant with the section 61 code of practice.

UK Office of the Information Commissioner
www.informationcommissioner.gov.uk

This site has a section on the UK Act although it is nowhere near as extensive as the information available on the DPA. The site contains papers on publication schemes (an introduction, an approval schedule, feedback and observations on Local Authority Pilot Schemes approval documentation, a practical guide, information for the education sector, information for the health sector, a guidance and methodology, summary of responses to the Public Consultation exercise), guidance on the UK Act, a section for news releases, the implementation timetable and model schemes for various bodies.

UK Department of Constitutional Affairs
www.dca.gov.uk

This site has a lot of material. It has the UK Code of Practice on Handling Requests for Information and the UK draft Fees Regulations. It also has the Annual Reports on Implementation, a review of legislation governing the disclosure of information, the Codes of Practice on Access to Government Information and central government and non-departmental public body guidance on publication schemes.

National Archives
www.pro.gov.uk

You need to go to the bar at the end of the first page to find the section on the UK Act. As expected, the focus of this site is on record handling and management. Here you will find information on the Public Records Acts, retention scheduling, the Code on Records Management, model action plans for implementing records management, standards based on the Code, frequently asked questions about the UK Act and guidance for the public on making open government requests.

HMSO
www.hmso.gov.uk

This site includes the legislation, that is both the FOISA and the UK Act as well as any statutory instruments which are in force.

It also includes information on the government's information asset register which is referred to in the papers on the DCA site.

The site also gives access to a copy of the draft Fees Regulations to be implemented under the UK Act.

Campaign for Freedom of Information
www.cfoi.org.uk

This is a very good site for information on associated issues and materials. As you would expect it does not follow the official line which is found on the main sites, but has a lot of linked material.

It is particularly good on the background to the Bill and the Scottish Bill and their passage and it contains a section specifically on Scotland.

HM Treasury
www.treasury.gov.uk

The only relevant paper on this site appears to be a report from July 2001 giving guidance to government department and other Crown bodies on charges for information. If finance departments are not already familiar with this, this sets out the basis on which the approach will be taken to fee calculation under the UK Act as to all statutory fees. There is a link to the paper from the page on Open Government.

The Society of Archivists
www.archives.org.uk

The FOI material on the site has a slight Irish bias but many of the categories, e.g. fire services, housing and environment, will be of interest in the national context.

Office of the Information Commissioner for Ireland
www.irlgov.ie

This site contains both the full text of the Irish Freedom of Information Act and an index of decisions under the Act.

The Constitution Unit, University College London

www.ucl.ac.uk

The site has a good succinct page on the policy and political background to the UK legislation.

The substantive publications produced by the Unit are for sale in hardback. There is a practical guide to the UK Act published in March 2001 available for 5 and a paper on FOI and Business published June 1999 also available for 5. A number of other papers and resources are available from the Unit and are set out on the site.

The Joint Information Systems Committee

www.jisc.ac.uk

This site is an academic site funded by the UK further and higher education funding councils, and focuses on information and communications technology. Information about both the UK Act and the FOISA can be found on the Advice and Guidance section of the website or on the Legal Information Service section of the JISC website.

The Department for Environment Food and Rural Affairs (DEFRA)
www.defra.gov.uk

This site provides access to the draft Environmental Information Regulations issued under the UK Act as well as DEFRA's accessibility commitment.

British Standards
www.bsi-global.com

The site gives access to the document Effective Records Management. This describes the BS ISO 15489-1 which is the first standard on records management and includes a further set of information on the practical implementation of that standard. The standard is available to purchase on-line.

Overseas Websites

BIBLIOGRAPHY

Blackstones Guide to the Freedom of Information Act
ISBN 1-84174-172-8 - Blackstone Press.

Butterworths New Law Guides, The Freedom of Information Act 2000
ISBN 0-406-93145-3 Butterworths Lexis Nexis

Government & Information, the Law relating to Access, Disclosure & Their Regulation, Patrick Birkinshaw
ISBN 0-406-90593-2 Butterworths Lexis Nexis

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