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TRAINERS' PACK

2. STRATEGIC VIEW OF FOISA

The notes to this presentation do not repeat the basic material about the FOISA. It is assumed that the trainer using this material is sufficiently familiar with the Act to provide amplification for the slides on the detail of the legislation without further notes.

The presentation is intended to raise awareness of the strategic issues among senior staff and encourage discussion of the ways in which the organisation will have to change to deal with the FOISA.

It may be used as a 'starting point' presentation for managers before the launch of a training programme for the organisation.

The trainer may need to say more about the details of the right of access, although these are dealt with later in the presentation. It may be a useful place to note that there are exemptions from the obligation to give access and some material is outside the FOISA altogether but these will not, for most organisations, affect the bulk of the information held by the authority. Although there are some existing access provisions, for example the right of access to electoral roll information, and the obligations under the various codes of access these are neither all embracing nor, in many cases, backed up by statute. The FOISA changes the underlying presumption about information in the public sector from one where information may be withheld at the discretion of the authority to one where it must be provided unless it falls outside the Act or an exemption applies. The exemptions are narrowly drawn and the overall approach is to be open.

If the authority has existing obligations to make information available to the public it may be useful to raise the fact that the interfaces between the different areas will have to be reviewed and managed.

In the FAQs published by the Executive it says,

" The Act will give everyone the right to access the wealth of information that is held by Scottish public authorities. It will help to increase the accountability of public bodies, breaking down a culture of official secrecy and making sure that public bodies look outwards to the needs and aspirations of the individuals and communities that they are there to serve."

How is the authority moving towards achieving its goals in these areas?

Does the authority already have an open culture or has its work been regarded as confidential?

Is there a common culture or are there different cultures in different parts of the organisation or at different levels in the hierarchy?

What implications may this have for the implementation of the FOISA in the authority?

What implications does this Act have for each individual here as a citizen?

It is essential that all managers and especially senior managers show a commitment to openness in order to ensure a successful introduction of the Act.

As part of this commitment it is essential to the success of any training programme that it is supported by management. This means that managers should attend training sessions and ensure that their staff attend.

You may need to consider these issues in the context of your forward planning and the changing public environment. For example if a major development is planned for the future that may attract public interest in information so you should consider "building in" FOISA compliance from the project inception. Where material is of particular interest you will wish to consider how far you can pro-actively disseminate it or make it available without being asked for it.

You may find it useful to consider your existing arrangements for making material public, for issuing PR material or even your broader communications strategy. You should also think about partner organisations or those with whom you have links which involve the sharing of information. This extends to considering the position of any associated companies or ventures run on a commercial basis. Companies which are wholly owned by the public sector are also covered by the FOISA. This may impact for example on development companies.

Sensitivity can be measured in different ways. You will wish to be aware of those areas where the disclosure of information might cause offence or negative reactions or, if you make a wrong decision, give rise to legal proceedings

How will the FOISA affect your organisation?

You may wish to review where requests for information have been made in the past and which parts of the organisation receive the most requests.

Requests may be "difficult" for all kinds of reasons - it may be difficult to find the actual material as the records are old and not well organised. It may be difficult to decide whether and how exemptions apply to particular material or to decide where the balance of public interest would lie in a particular area.

Remember that a request for information does not have to mention the Act nor can you insist that all requests are made to a central point. If the activities of the organisation are carried out by large numbers of staff and it is possible that requests will be received by many staff it will affect the level of training provided and the procedures that you decide to establish.

Publication schemes can be easily compared from one authority to another. They may be used for comparisons for best practice. In some sectors the organisations involved have worked together and have followed a common format and approach, for example the police service has adopted this approach. Therefore anyone looking at a police service scheme will have a similar experience and will be able to access much the same types of material from different forces.

You may not wish to do this or it may not be appropriate in your sector but you should think about consistency across your organisation. It may not be wise to have different sections or units or departments making separate decisions about the type of material and level of detail of material to be published. Some general policies might be considered, for example that all policy documents must be submitted for consideration of publication.

You may ask the group to consider the practical arrangements for maintaining the scheme and the allocation of resources required. It is important for managers to recognise that the scheme is not a one-off action but a continuing management commitment; that every item of information in the scheme should be 'owned' by a named post-holder who will be responsible for ensuring that the information is kept up-to-date and refreshed as necessary.

You may ask the group to consider how the organisation's own staff will use the scheme to inform themselves and others.

Records management can be the Cinderella of an organisation. The group may need to consider how the organisation will tackle records management. This is an area in which synergies with other work may be found for examplea project to establish electronic records.

Managers should be made aware of the resources which are available to the public sector in this area. The National Archives of Scotland has produced a model action plan which is available on its website.

The points made about consistency and clarity of management ownership can be made here again.

The group should consider the role of information in the authority and the importance of information governance.

This may be an opportunity to discuss how this aspect of the requirements of the Act will affect different parts of the organisation and how it should be implemented.

It can be used to lead to a discussion of the allocation of the records management function and the association with FOISA, data protection and other information management work.

Such units are based in different places in different authorities but there is a tendency to bring some of these functions together in the role of an information officer who reports to a senior officer in the organisation. Staffing and structure issues may therefore flow from a discussion of the records function.

You may wish to re-inforce the fact that resources are publicly available to assist for example suggested retention schedules for difference types of information.

This is an opportunity to discuss how the authority will handle requests at the front line.

It may be useful to briefly review the authority's points of interface with the public and how this obligation will alter or work with those existing interfaces.

Clearly there is likely to be some form of obligation to monitor numbers and types of requests but in any event the authority will wish to consider how to do that from a management point of view.

Consistency of experience for clients or customers in their dealings with the organisation could be discussed as could monitoring the quality of the customer experience.

It may be necessary to explain in more detail what the section 60 code covers.

The extent of the obligation to provide material in other languages and formats can be considered at this point. If the authority has a significant client population who use another language the authority may consider printing guidance material in that language, although this is not mandatory.

The extent of assistance to be provided to applicants and the nature of the assistance may be considered.

More generally discussion of the development of procedures and the need to ensure that there is a clear business process for handling requests which interfaces with the publication of material and the making of marketing and other materials available can be flagged.

The management of requests is not confined to deciding how to assemble the material and then supply it to the applicant. It may be necessary to consider how the authority will handle those requests which are either more difficult to deal with or should not have been made to it in the first instance.

Transfer procedures may become very messy - for example the applicant may have written to the authority because he or she did not want to approach another organisation. It may therefore be inappropriate to transfer a request without the applicant's consent, however if consent is sought it may be more trouble than simply refusing the applicant and advising him or her to seek the material elsewhere.

The relations with third parties may also give rise to discussion and it is suggested that all authorities which deal with material received from third parties should have a project stream devoted to assessing what impact this may have and how such requests should be dealt with.

The fees have not been settled at the date of these training materials. You should check on the website run by the Scottish Information Commissioner for the latest information at www.itspublicknowledge.info.

The fees regime is not a cost-recovery regime. It is likely that the authority will only be able to recover 10% of the retrieval costs. If the authority's records are in a mess so that information is difficult to retrieve it could be costly for the authority.

The issue of fees may give rise to much discussion. There will be a requirement to cost the retrieval process so that the ceiling can be observed. There are also provisions to allow authorities to make charges at an agreed rate for searches over and above the limits. If authorities think that they may be asked to do this they should consider whether they need a policy developing on which requests they accept and why. As they have a discretion they must exercise it fairly and rationally.

The strategic issues raised here for most organisations are to recognise where they hold environmental information and assess whether they are meeting their existing obligations. If the organisation potentially has environmental information which may be of interest to the public you may wish to discuss more widely how this should be handled and how it intersects with issues of public awareness and the publication of material.

It may be useful to reinforce the message that the starting point for dealing with any access request is a presumption that access should be provided unless there is a reason not to give it which outweighs the public interest in access.

The nature of public interest in access to information could be discussed using material from the section 60 code. The nature of the interests protected by exemptions should also be considered.

Authorities will need to consider in advance which exemptions may be of most relevance to the organisation and develop a policy on how those key exemptions should be applied.

It is important that the exemptions are applied consistently throughout the organisation and you may wish to consider which officers should be involved in making final decisions about the application of exemptions.

You may discuss the different approach that should be taken to absolute and non-absolute exemptions. You may consider it necessary to ensure that all staff are aware of the absolute exemptions.

The trainer should customise the slides on the non-absolute exemptions to reflect those exemptions which are of most relevance to the organisation.

The ones listed above may be of application to a large number of bodies.

Many of the exemptions require that the disclosure would cause "substantial" prejudice to the interest before the material can be withheld. The authority will need to have a methodology for deciding what constitutes substantial prejudice in any particular case.

It may be useful to discuss here how the FOISA will affect relations with contractors and the impact it will have on tendering procedures and contracts.

There is a new subject access exemption for manual personnel information.

This may be an opportunity to discuss how the authority envisages the new exemption being applied. Many authorities do not envisage themselves as taking advantage of it and will give employees all the information which is held on them.

You may wish to review whether the staff are sufficiently aware of data protection rights and issues and whether some training in this area should also be offered.

You may wish to consider whether the procedures for handling subject access should be reviewed as part of the introduction of the rights under the FOISA.

Managers should recognise that the privacy rights protected by the Data Protection Act will generally take precedence over rights of access but that it is possible that the balance between privacy and access may change over time.

The position of material about employees should be considered. Such information is personal data but it is not private in the usual sense of the word and therefore in most cases information about employees should be disclosed unless it is clearly inappropriate. You should consider how employees should be made aware of this. It may also be useful to discuss training employees so that there is no possibility that they will record inappropriate comments or views which would later embarrass the organisation if they were to be revealed under the FOISA

The right of access to public information is part of a wider rights based agenda. Many other countries have access legislation and valuable lessons may be learned from their experience.

There is a movement to encourage openness in the European Union. The organisation may consider encouraging staff to recognise the FOISA as part of the wider movement for change in the public sector.

This may have structural implications for the authority, for example the review process might be better dealt with in the central department.

The review process should be made public and transparent

You may wish to use this and the following slide to summarise a list of action points which have emerged from the presentation.

You may wish to customise these two slides for your organisation.

Managers should be made aware of the role of the Commissioner in providing advice and support to authorities as well as his enforcement powers.

The organisation should identify and tie-in with any synergies offered by other initiatives and recognise that some of the activities carried out for implementing and complying with FOISA will assist with other initiatives.

www.itspublicknowledge.info

Open Scotland covers the Executive's Modernising Government and Digital Inclusion agendas. It aims to put individuals and communities at the forefront of public service delivery in fulfilling the Executive's commitment to openness and accountability as well as achieving universal access to the web across Scotland. This links with records management, publication schemes and access.

E-Government and 21st Century Scotland are about making public services available on-line and joined up government. They include an emphasis on citizen focus. Again, this links with publication schemes and access.

Information sharing is an important issue for the public sector in light of initiatives such as joined up government and has links with records management. The Department for Constitutional Affairs has published a data sharing toolkit.

The offence provision should be emphasised so that managers understand the consequences for employees as well as for the organisation.

The trainer may wish to place this slide in another part of the presentation as appropriate

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