The Scottish Government

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TRAINERS' PACK

APPENDICES - POWERPOINTS AND LEAFLET

1. OVERVIEW OF FOISA

Access to information is a devolved function. The UK government passed the UK Freedom of Information Act in 2000. The Scottish Parliament followed the main outline and structure of the UK Act but made a number of changes which strengthen the rights of access in Scotland.

The FOISA will come into full effect in January 2005 at the same time as the UK Act.

Many countries now have FOI legislation including Australia, New Zealand, Ireland and Canada. It may involve a cultural revolution for some organisations.

• The FOISA establishes two mechanisms for placing information in the public domain.
• It establishes a right for any person making a request to a Scottish public authority to have access to that information unless exempt; and
• It imposes a requirement on public authorities to publish information that they hold by setting up and maintaining publication schemes which set out the classes of information which they undertake to publish.
• The Act allows the Scottish Ministers to issue a code of practice on the keeping, management and destruction of records which authorities should follow.
• The Act will have an important impact on Scottish public authorities.
• [Include brief examples of the impact on your authority]
• The Act will have an impact on everyone [consider how the Act may impact on
• participants as individuals].

• The Act provides that it must be fully in force by 31 December 2005.
• [refer to date for this authority for introduction of publication scheme]
• The right of access will then be brought in across the board in January 2005 - the so-called "big bang" approach.

• FOISA is intended to have a very wide application across the public sector in Scotland.
• There is a list of public bodies in Schedule 1 of the Act including local authorities, health authorities and police authorities.
• An order can be made adding to or amending this list.
• Orders can also be made under section 5 adding organisations that appear to be exercising functions of a public nature or are providing services to a public authority under a contract and the provision of those services is a
• function of the public authority.
• Companies wholly-owned by public authorities are also covered.
• [explain how this authority is included in the Act]

• There is a presumption of openness underlying the Act. It establishes a right for any person making a request to a Scottish public authority to have access to that information.
• This right is qualified by a number of exemptions. These can be absolute or require a public interest test to be applied.
• The other fundamental obligation under the Act is for public authorities to publish and maintain publication schemes setting out the categories of information which the authority undertakes to publish.
• There are also two codes of practice under the Act, one dealing with requests for information and one with records management.
• Enforcement of the Act is through the Scottish Information Commissioner, the regulator, and similar to enforcement under the Data Protection Act 1998.
• A fee structure is established whereby public authorities can charge for requests for information. Regulations will deal with the mechanics of these, however it is anticipated that the first 100 of searching will be carried out at no cost to the applicant.

• Public authorities are required to adopt and maintain a publication scheme and to publish information in accordance with their scheme.
• The scheme should set out the classes of information which are published or intended to be published, how they are published and any fees which will be charged.
• Guidance is available from the Scottish Information Commissioner - October 2003
• Areas to look at include:
• what you must publish because you are required to do so
• what you cannot publish because of confidentiality or legal prohibitions
• what you already publish voluntarily
• what people want and what is most requested
• what information is long-lived
• what information might an exemption be claimed for
• [explain as relevant what work is being or has been done on the publication scheme for this authority, where it is or will be accessible, what information is or will go in etc. Also, if relevant, explain if work is or has been carried out on relevant model schemes.]

This is an extract from the introduction to the code on records management.

[Consider how records are managed in your authority. Is records management seen as an important corporate function? Is it governed by consistent standards for the entire organisation or dealt with on a divisional basis?]

The code is enforced by the service of a 'Practice Recommendation' by the Commissioner. However there may also be a costs penalty to the organisation if its records are in disarray because it will prove a burdensome task to answer access requests within the required timescale.

Authorities will have to recognise records management as a corporate function to which appropriate resource should be allocated.

It may be appropriate to consider whether the authority needs to carry out an audit of its records.

Any records project must also cover electronic records and take advantage of any synergies with e-government initiatives.

• In order to be a valid request
  • a request for information must be in writing
  • this includes transmission by electronic means
  • it must be legible
  • it must be capable of being used for subsequent reference
• There is no obligation to refer specifically to the FOISA when making an information request so it is important that staff recognise such requests and channel them through the appropriate procedures.
• The request must state:
  • the name of the applicant and an address for correspondence
  • a description of the information requested sufficient to enable the authority to identify and locate the information
• A request can be made by any person, including companies.
• [Explain how this authority is planning to handle requests e.g. through same channels as data protection, through dedicated resources etc.]

• A public authority may charge a fee for dealing with a request.
• It can issue a fees notice specifying the fee that it will charge and it does not have to comply with the request until the fee is paid.
• Regulations will be made to determine the fee levels, to set maximum fees or prohibit the charging of fees in certain cases.
• Current proposals suggest that the fee structure will be based on initial amount of information at no cost then a charge based on 10% of the reasonable marginal costs of complying with the request. Marginal costs will be subject to an upper limit.
• Marginal costs will include locating and disclosing the information.
• Where provision is made in other legislation for fees that may be charged for the disclosure of information, such fees continue to apply rather than the new charging structure, for example, land registry fees.
• [Explain any work that has been done on charging structures in this authority].

• The request must be satisfied promptly and in any event within 20 working days of receipt of the request or, if a fee is to be charged and a fees notice has been given the remaining period of time between receipt of the fee and the 20 working day limit.
• However the 20 working days may be exceeded where a reference has to be made to the Keeper of the Records of Scotland

• An applicant can express a preference for communication in a particular way which can be:
• a copy in permanent form or other form acceptable to the applicant
• provision of a reasonable opportunity to inspect a record containing the information
• provision of a digest or summary
• Reasons should be given if the authority decides not to comply with the preference.
• Compliance with a request should not interfere with the day to day work of an authority in amending information and although the information provided to the applicant must be the information held at the time the request is received, account can be taken of amendments or deletions that would be made in the normal course of events. However the authority should not destroy information after it has received a request.
• The Act also obliges public authorities to provide advice and assistance to applicants. Compliance with the relevant code of practice will meet this obligation.
• [specific examples from the Code of Practice can be given if required].

• Exemptions in the Act can be absolute or non-absolute.
• Non-absolute exemptions are where the information requested gets through the gateway of the exemption but the public authority then has to weigh up the public interest in disclosing against the public interest in withholding the information. Absolute exemptions require no such public interest test.
• Public interest is not defined in the FOISA but participants should remember that there is a public interest in openness of information in a democratic state to support the values of democracy.

[Explain exemptions that are most likely to be relevant to the authority (refer to work book for further details of exemptions)].

[Explain exemptions that are most likely to be relevant to the authority. It may not be appropriate to list all the exemptions shown on this and the following slides. You may wish to select only those of relevance to your authority and indicate the existence of others].

[Explain exemptions that are most likely to be relevant to the authority].

[Explain exemptions that are most likely to be relevant to the authority].

[Explain exemptions that are most likely to be relevant to the authority].

The DPA was passed in order to comply with a European directive. The UK is obliged to ensure that its laws meet the standards of the directive. The DPA came into effect in March 2000.

The authority will be a data controller for all the personal data which it handles.

Information about living individuals, however it is held, is also protected by an Article in the Human Rights Act 1998 which protects the right to respect for private and family life.

The DPA includes a right of access under which individuals can ask a data controller to provide them with all the information held on them. Subject to the application of exemptions the data controller is obliged to do so. The controller has 40 days to respond and may charge a maximum fee of 10.00. Under the current DPA subject access rules the individual will only receive data covered by the DPA.

The right of subject access will continue to apply. When individuals seek information or themselves it will not be treated as a FOISA request.

In order to bring the access rights under the DPA and the FOISA into line there will be an extension to the subject access right after January 2005.

However if the data subject wants access to material which it will be difficult for the authority to find, that is unstructured papers, the individual will have to describe those to help the authority find them.

As the rules will be changed to give data subjects a wider right of access to material a new subject access exemption has been included to cover personnel files.

The authority is not obliged to rely on the exemption and may choose to provide this information to employees.

In many cases third parties, for example journalists or pressure groups, may seek information about individuals, for example about doctors or senior officials. This information will be exempt from the right of access if it falls into one of the above categories.

The effect of this exemption is to ensure that information is not provided in breach of data protection rules.

Remember that the UK has an obligation to ensure that data protection rules are complied with because there is a European directive. For much personal information it is possible that the default position will be not to provide it in response to a request by a third party.

• Enforcement of the Act is by the Scottish Information Commissioner.
• An applicant for information can apply to the Commissioner if he is not satisfied with the response received from a public authority and he has exhausted the authority's own review system.
• In most cases the Commissioner is required to serve a decision notice on the complainant and public authority describing the steps to be taken by the public authority if the Commissioner decides that it has not complied with the Act.
• An information notice can also be served if the Commissioner needs further information from the authority before determining a complaint.
• An enforcement notice can be served where a public authority has failed to comply with any of its obligations under Part 1 of the Act, requiring the authority to take specified steps within a specified timescale.
• Appeals can be made by an authority against an information notice, decision notice or enforcement notice. An individual applicant can appeal against a decision notice. Appeals lie to the Court of Session.

• The Commissioner has to approve publication schemes.
• Practice recommendations can be issued when the Commissioner feels that the authority is not complying with a relevant code of practice.

• Section 65 of the Act makes it an offence for any person, including employees or anyone under the direction of the authority, to alter, deface, block, erase, destroy or conceal records held by a public authority with the intention of preventing their disclosure to an applicant who has requested the information. The penalty on conviction is a fine but the public authority may also suffer adverse publicity.

• Recap on relevant dates for this authority
• Recap/expand on what is being done and has been done in this authority to prepare for FOISA
• Questions

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