News and Commentary from the Scottish Information Commissioner

News and Commentary from the Scottish Information Commissioner

May to July 2011 

In this edition of Inform, I reflect on current issues facing FOI in Scotland, report back on my new approach to publication schemes, and update readers on a number of forthcoming events.
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On 1 July 2011, HM the Queen formally opened the fourth session of the Scottish Parliament.  As MSPs enjoy recess before the business of the new parliament starts in earnest in September, here are the FOI issues which may affect their in tray when they return.

FOISA Amendment Bill

In January 2011, Scottish Ministers announced that they would bring forward a Freedom of Information (Scotland) Amendment Bill, to review how FOI is working in Scotland.  The Bill will provide an opportunity to address some areas of the Act which could be working better.  For example, I have already raised concerns with Ministers that the section 65 offence of altering etc. records with intent to prevent disclosure is difficult to enforce because the timescale for commencing any proceedings under this section is too short.  It is also an opportunity to revisit the 30-year lifespan of "historical records" with a view to reducing this.

Clearly it is sensible to keep legislation under review to ensure it remains robust.  It is vital that the Amendment Bill is seen as an opportunity to strengthen, not weaken, people's FOI rights.  I will be contributing further ideas to improve the legislation while critically examining any proposals which might affect current provisions.

Hard times

Scottish public authorities are facing tough times, having to cut costs while trying to deliver public services.  At the same time, the public are likely to demand more information, as they seek to understand how difficult funding decisions will affect them and their families.  Where does this leave FOI?

In my decisions and there is evidence of some authorities not keeping pace with FOI obligations such as responding to requests in time, or carrying out adequate searches for information.  In part this may be due to increased demand, but may also be due to: inadequate staff resources or training; poor systems to log and monitor requests; or a lack of investment in good records management.

I will be continuing my programme of assessments, designed to identify practice issues and to agree a plan of action to remedy any failings.  However it is also likely that Practice Recommendations will be needed to draw particular issues to the attention of management and to secure immediate improvement.

There is a lot of good practice in evidence, and I shall also be drawing together examples of this to encourage others to follow suit, or at least to illustrate what can be done in a time of constrained resources.

Following the public pound

As recent press coverage around Glasgow 2014 demonstrated only too clearly, the issue of which bodies are covered by FOI remains a current topic.  Glasgow 2014's members are Glasgow City Council, Scottish Ministers (which are both public bodies subject to the FOI Act), and the Commonwealth Games Council for Scotland (which is not).  As a result it is not a publicly owned company, and is consequently not covered by the Act.

Ministers have the capacity to designate organisations which are not public authorities, but which nevertheless deliver functions of a public nature, or deliver public services under contract to a public authority.  In 2010, Ministers considered designating leisure trusts, PPP/PFI contractors delivering hospitals, schools and private prisons, the Association of Scottish Police Officers in Scotland and The Glasgow Housing Association - but decided the time was not right. Glasgow 2014 was not considered.

Ministers have indicated that designation will not be considered again until after amendments have been made to the FOI Act, but that runs the risk of more FOI rights being lost, as services are outsourced to charitable trusts and private contractors, and new organisational structures and partnerships are created to deliver public services.

Open government

Over the past few years, an international movement towards more open government has grown up.  In July 2011, the United States hosted a multinational meeting of 55 countries, including the UK, to encourage individual countries to pledge to advance government openness.  The UK coalition government is actively pursuing an open government data agenda, progressively publishing more government data than ever before.  The UK Freedoms Bill is proposing changes to the UK FOI Act which would create a statutory duty to make data available in machine readable forms, which are easier for the public to use. Comparable proposals for Scotland are still to emerge.

I will be discussing how the internet is making government data more accessible at a seminar at the Festival of Politics, on 26 August 2011.  More detail in the "News in brief" section.

Publication scheme pilot reviewed
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I launched a fresh approach to publication schemes this year, inviting Part 7 bodies (including non-departmental public bodies) and publicly owned companies to adopt a single model publication scheme.  Authorities who adopt the model scheme have simply to notify me that they have done so, and create a guide to the information that they make available under the scheme.  This new approach allows me to focus resources on monitoring how well authorities are complying with their schemes, rather than assessing individual schemes.

In July, I undertook a survey to gather feedback from those who had adopted the single model scheme.  Interestingly, the main reason authorities cited for adopting the model was to show that they are implementing best practice, rather than to avoid the Commissioner's approval process.  However, most of those who previously created a bespoke scheme did report that it had been less work to adopt the model.  37% of respondents stated that they were publishing more information than before as a direct result of adopting the model scheme, and 97% said they would recommend the model to other authorities.

I will amend the model in light of the feedback I have received, and it will henceforth be available for adoption by any public authority.  Publication Scheme Survey Report 2011.
At a glance - July 2010 to June 2011
Charts showing case data for July 2010 to June 2011
Key decisions issued
Your Right to Know Booklet cover

Registered Sex Offender Statistics

The Commissioner has issued a replacement decision in the case of Decision 014/2009 Dunbritton Housing Association, Craigdale Housing Association, and Blochairn Housing Co-operative, and The Chief Constable of Strathclyde Police.  The request was for numbers of Registered Sex Offenders (RSOs) in various postcode areas (down to the fourth digit, e.g. G45 9), broken down by risk category.  The Police argued that individuals could be identified if the statistics were disclosed and that this would be unlawful.  In his replacement decision, the Commissioner concluded, in line with recent court decisions, that the disclosure of the number of RSOs in an area, together with information already in the public domain, would not lead to individual RSOs being identified.  As such, the numbers were not personal data and could not be exempt under section 38(1)(b).

The Police also argued that disclosure would prejudice substantially the prevention or detection of crime (section 35(1)) and that disclosure would endanger the health or safety of an individual (section 39(1)).  The Commissioner concluded that disclosure of the figures per postcode area (i.e. not broken down by risk category) would not causes these anticipated harms.  However, he decided that the numbers of RSOs in each risk category should not be disclosed, as this would focus attention on the small number of postcode areas containing high or very high risk offenders. The issue would move from identifying "how many" RSOs to "who" they are, with the negative consequences anticipated by the Police.  The Commissioner ordered disclosure of the number of RSOs in each area, but not broken down by risk category.

Compliance with timescales

The Commissioner is disappointed to note that, although the legislation has been in force since 2005, and public authorities are therefore well aware of the timescales in the legislation, around one in five of the decisions he has issued over the past few months deals with delays in either responding to an initial request, or request for review.  Public authorities generally have a maximum of 20 working days to respond to a request (or carry out a review).  Where a public authority fails to respond, the Commissioner can order the authority to do so.  However by that time four months may have passed since the initial request was made, and the information may be of much less value to the applicant.  Where a public authority continually fails to respond within the timescales set down in the legislation, this can lead to the Commissioner taking action under the Enforcement Policy, including sending his staff to visit the authority to assess how it generally complies with the legislation and, where relevant, to come up with an action plan with the aim of improving compliance.

Charitable body "under the control of" Scottish Ministers

The Commissioner enforces both the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information (Scotland) Regulations 2004 (EIRs).  The EIRs cover a wider range of bodies than FOISA.  For example, a body may be subject to the EIRs if it is under the control of a body which is subject to FOISA; if it has public responsibilities relating to the environment; exercises functions of a public nature relating to the environment; or provides public services relating to the environment.  Since the EIRs came into force, the Commissioner has looked at a small number of cases to decide if private bodies are covered by the EIRs, but until recently, has come to the conclusion that none of them were covered. However, in May, the Commissioner issued a decision which concluded that the Solway Shellfish Management Association was covered by the EIRs on the basis that it was under the control of the Scottish Ministers and, given its powers to regulate fishing on the Solway Firth, provides public services relating to the environment. (Decision 097/2011 Little Cumbrae Estate Limited and Solway Shellfish Management Association).

Practice assessments
Practice Assessment Image

In February and March 2011, the Commissioner undertook assessments of the Scottish Prison Service (SPS) and Strathclyde Partnership for Transport (SPT).

Scottish Prison Service

The Commissioner wished to review the progress the SPS had made following its review of FOI procedures two years ago, and whether lessons learned in the recent Transport Scotland assessment (another Government agency) had been applied at SPS.

A number of areas of good practice were identified in the SPS's procedures for dealing with information requests. The SPS had adopted learning points from the Transport Scotland assessment and worked with the Scottish Government to develop its processes and address training needs.  Assessors did identify areas where the SPS's practice was not compliant with statutory requirements or the codes of practice e.g. a need to develop key members of staff responsible for responding to requests.  Other areas of concern focused largely on the administrative handling of requests for information.

This assessment report considers the unique environment within which the SPS operates and how this impacts on the type of requests it receives.

Strathclyde Passenger Transport

During the course of the assessment SPT displayed a positive culture of continual self-evaluation and development.  Assessors were particularly impressed with the bespoke, workshop-style internal training.  They considered SPT's policies, procedures and administrative arrangements to be robust, accurate and proportionate to the size and nature of the organisation.  Whilst acknowledging improvements made over the last 18 months and the seriousness with which SPT approaches its obligations, some areas for development were identified.  These included; further targeted training, development of staff induction to include FOI/EIRs; the need to remain aware of the possibility of an increased number of EIR requests given its upcoming renovation works.

News in brief

Festival of Politics seminar launched ? and sold out

The Scottish Information Commissioner is chairing a free seminar as part of this year's Festival of Politics, on Friday 26 August 2011, from 13:30 to 14:30 in Committee Room 3 at the Scottish Parliament.  Entitled "Access to Information? ? There's a website for that!" the event will hear from requesters sharing their experience of making FOI requests online, and include live demonstrations of websites which take raw government data and provide new and useful services for the public.  Attendees will get the chance to put questions to a panel of experienced information rights specialists: Has the internet changed how we ask for information?  Has it made it easier or more difficult?  And are we being provided with what we really want to see?  The event is already fully booked, but you can find out more here:

Centre for FOI ? dates for the dairy

The Autumn series for the Centre for Freedom of Information in Scotland seminars has been announced.  On 7 September 2011, Fiona Killen, Head of the Parliamentary and Public Law Unit at Anderson Strathern LLP, will provide an update on current developments in FOI, and representatives from the National Archives of Scotland will talk about implications of the new Public Records (Scotland) Act 2011 for FOI.  On 19 October 2011, we will be joined by John Angel, Principle Judge of the First Tier Tribunal (Information Rights) from the UK, to talk about FOI appeal routes.

Both events are being held in the Dundee University School of Law, from 13:00 to 16:00.  Contact Donna Hendry to book a space.

FOI on the road

On 21 and 22 June the Commissioner's staff visited Dumfries and Galloway and met with 35 local campaigners and voluntary organisations, and six local journalists.  The programme included interactive training sessions on FOI rights, a workshop with local media, and one-to-one surgeries for local people.  Amongst other things, attendees asked about how to make effective requests, who is covered by the Act and what records public authorities should be keeping.  100% of attendees felt they had a better understanding of their rights, and 92% said they were more likely to use FOI in the future, as a result of attending the session.  The roadshow programme continues in Glasgow on 30 August 2010, at the Albany Centre in Cowcaddens from 10:00 to 12:00.  Contact the Commissioner's office to book a space.

EIR charging policy

We will shortly be publishing new guidance on charging under the EIRs.  Regulation 8 of the EIRs permits public authorities to charge a "reasonable amount" for making environmental information available.  The EIRs specifically say that the fee charged must not exceed the costs to the authority of producing the information requested, so indirect costs must not be passed on to the requester.  It is not entirely clear what "producing" entails, and therefore what costs can be taken into account.  The Commissioner has come to the view that, as with the FOI Act, public authorities can charge for the staff time taken to locate and/or retrieve information (this will include staff time redacting information so that it can be provided in response to a request, but not time spent determining whether information is subject to any exceptions), as well as the actual costs of supplying the information e.g. the cost of photocopying the documents and postage.  However, if the applicant wants copies of documents which are already available for inspection, fees cannot be charged for staff costs incurred in locating and retrieving that information.

FOI News
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  • Patrick Harvie MSP laid a motion in the Scottish Parliament on 4 July calling for the extension of the FOI Act to cover "COSLA, ACPOS, private prisons and arms-length trusts and companies set up by local authorities and the Scottish Government, such as Glasgow 2014 Ltd, and to guarantee relevant access to public information held by contractors working on public projects". Text of Patrick Harvie motion.
  • Audit Scotland has issued best practice guidance to local authorities setting up arms-length external organisations (ALEOs). The guidance, entitled "Arms Length External Organisations - are you getting it right?" state that Council's should address "freedom of information principles" when establishing ALEOs.

Across the UK & Ireland

  • The ICO published his Annual Report, via an online webinar, on 6 July, followed by an online Q&A session. ICO Annual Report 2010/11.
  • The Protection of Freedoms Bill 2010-11 completed its committee stages and is awaiting a date for its report stage in the House of Commons. The Campaign for FOI raised concerns about the definitions of datasets, and the Committee passed an amendment to extend the ICO's term of office from 5 to 7 years.
  • JISCInfonet have published the results of their 6th annual information legislation and management survey of UK higher education institutions. 7 of the 75 respondents were Scottish HE institutions.  JISC Information Legislation & Management Survey 2010.
  • The Prime Minister has written to Cabinet colleagues, setting out his commitment to publishing key data on the NHS, schools, criminal courts and transport.  Letter to Cabinet Ministers.

Around the world

  • The USA hosted a multinational meeting on 12 July, to encourage countries to pledge to advance government openness. Delegates from 55 countries attended, including the UK. The Open Government Partnership (OGP) launched a new website in July, and will formally launch in September 2011.
  • Toby Mendel, Executive Director of the Centre for Law in Democracy, has evaluated the recent history of amending FOI laws around the world.  His report finds that "The evidence reveals a strong pattern, albeit certainly not a uniform one, of positive amendments dominating negative ones, or stalemates leading to inaction." View Toby Mendel's report.
  • Hungary has replaced its independent Data Protection and Freedom of Information Commissioner with an administrative authority, a move which campaigners say has weakened the right to access information in the country.  Hungary, in 1992, was the first country in Eastern Europe to adopt an access law. report: Hungary Commissioner replaced.
Contact us
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My staff are on hand to provide information, support and advice on any issue relating to freedom of information. We would also be pleased to receive any feedback you may have on our website, or on Inform itself. Contact us at:

Scottish Information Commissioner, Kinburn Castle, Doubledykes Road, St Andrews, KY16 9DS

Telephone: 01334 464610



Fax: 01334 464611

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