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OVERVIEW PRESENTATION

FREEDOM OF INFORMATION (SCOTLAND) ACT 2002

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BACKGROUND

• Passed by the Scottish Parliament - 24 April 2002

• Royal Assent – 28 May 2002

• Scottish Information Commissioner appointed - February 2003

• Implementation timetable announced - May 2003

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FREEDOM OF INFORMATIONIN CONTEXT

• The Freedom of Information (Scotland) Act 2002 provides a right to access information held by Scottish public authorities. This should– lead to increased accountability – lead to the breakdown of a culture of secrecy and– ensure that public bodies look outward to the

communities they serve

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SCOPE

• Right of access

• Publication Schemes

• Records Management

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WHEN DOES THE FOISA START?

• Publication Schemes– Scottish Ministers, Parliament, local

government and police - June 2004– Health service and schools and universities -

September 2004– Remaining - November 2004

• Individual rights of access - January 2005

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WHO WILL BE SUBJECT TO THE ACT?

• All Scottish public authorities listed in Schedule 1:– Local government, police, health, public education– NDPBs (e.g. Commissioners)– Scottish Ministers, Parliament and the Executive

and– Companies wholly owned by Scottish public

authorities– Organisations designated by order of the Scottish

Ministers (e.g. contractors of an authority)

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WHAT WILL THE ACT DO? – OVERVIEW

Provides for:• presumption of right of access to any

information held by a public authority• publication schemes• a number of absolute exemptions and others

where disclosures may be made in the public interest

• an enforcement mechanism and an independent regulator

• codes of practice• statutory fee structure

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PUBLICATION SCHEME

• A public authority must maintain a publication scheme

• Schemes list classes of information which are published or intended to be published, how they are to be published (e.g. internet), and any fees for copies

• Model schemes can be produced or approved by the Commissioner for adoption by a public authority

• Publicity about the publication scheme is the responsibility of the public authority

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RECORDS MANAGEMENT – INTRODUCTION

“Any freedom of information legislation is only as good as the quality of the records to which it provides a right of access. Such rights are of limited use if reliable records are not created in the first place, if they cannot be found when needed or if the arrangements for their eventual archiving or destruction are inadequate…”

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“Consequently all Scottish public authorities are expected to have regard to the guidance in this Code to ensure that they are managing their records effectively. For many authorities this will mean a significant culture change for all of their staff – senior managers have a responsibility to lead and promote that change”

Code of practice on the keeping, management and destruction of records issued by the Scottish Ministers (“Section 61 Code”)

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CODE OF PRACTICE ON RECORDS MANAGEMENT

• Covers both electronic and paper records

• Provides guidance on desirable practice in respect of– Records management policies– Records management training– Management and destruction of records– Transfer of records to the Keeper of the

Records of ScotlandModule 5

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REQUEST FOR INFORMATION

Formal request must:

• be in writing– includes electronic means– legible– capable of subsequent reference

• contain the correspondence address and name of the applicant

• describe the information required

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FEES

Authorities may charge a fee

• regulations

• fee maximum

• appropriate limit

• fee notice

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RESPONSE TO REQUESTS

Authorities have to:

• communicate the actual information unless an exemption applies

• satisfy the request within 20 working days

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MEANS OF COMMUNICATION

• Applicant’s preference

• Routine amendments

• Code of Practice

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EXEMPT INFORMATION

• “Absolute exemptions” - the exempt information is not subject to a public interest test.

• “Non-absolute exempt information” the public authority has to weigh up the public interest considerations “in all circumstances of the case” before applying the exemptions so that the right of access does not apply. The starting position is that the public interest is served by disclosure.

• The public authority may have to show why the public interest is served by applying the exemption.

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ABSOLUTE EXEMPTIONS

• Information accessible by other means e.g. already published under a publication scheme

• court records

• personal data (data subject)

• information which cannot be disclosed by law (court order, statute or enforceable obligation of confidence)

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NON-ABSOLUTE EXEMPTIONS

• National security• Prejudice substantially the defence of the realm or

the effectiveness of armed forces• Prejudice substantially international relations• Information is confidential and originated from

another State• Prejudice substantially relations between

parliaments/assemblies in the UK• Prejudice substantially the economic interests of

the UK

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NON-ABSOLUTE EXEMPTIONS

• Information held for criminal investigations or proceedings or informants

• Information which would prejudice substantially the:– Prevention and detection of crime; apprehension or

prosecution of offenders– The administration of justice– Operation of immigration control– Collection of tax, duty or imposition of a similar nature

(e.g. council tax)– Security and good order in prisons and other law

enforcement purposes

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NON-ABSOLUTE EXEMPTIONS

• Information which is/is intended to be published within 12 weeks

• Information which would prejudice substantially:– Audit functions– Formulation of Scottish Administration policy– The effective conduct of public affairs– Information intended for future publication

• Commercial interests, or trade secrets

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NON-ABSOLUTE EXEMPTIONS

• Communications with the Queen

• Endanger physical or mental health of any individual

• Environmental information

• Personal data (third party)

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DATA PROTECTION ACT 1998

• It applies to “personal data” that is information about a living individual

• It applies to automated information or that held on filing systems structured by reference to the data subject

• There are more stringent rules for some types of data known as sensitive data

• Those who process personal data are called data controllers

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INTERFACE FOISA AND DPA – SUBJECT ACCESS

• Where an individual asks for access to personal data about him or herself the request does not come under the FOISA. It is covered by an exemption from the FOISA. If the authority is sure of the identity of the applicant it should be treated as an application for subject access under the DPA

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INTERFACE FOISA AND DPA – SUBJECT ACCESS

• The right of subject access will be extended to cover all recorded information which relates to the data subject including filing systems which are structured other than by reference to the individual and unstructured systems

• The data subject will have to describe any information which may be held on unstructured files so that the public authority knows where to look for it

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INTERFACE FOISA AND DPA – SUBJECT ACCESS

• A new subject access exemption will apply to information held in an unstructured way and that held on the new category of structured files

• The exemption covers information relating to personnel matters of any staff employed in the armed forces or Crown service or any other part of the public sector

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INTERFACE FOISA AND DPA – THIRD PARTY ACCESS REQUESTS

• Where a third party asks for access to information about another person it is an access request under the FOISA. However the information may be exempt from the right of access if disclosure would involve – Breach of the DPA – Health records of those who are deceased– Census information in the last 100 years

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INTERFACE FOISA AND DPA – THIRD PARTY ACCESS REQUESTS

• Information will be exempt under FOISA if– The disclosure would involve a breach of the data

protection principles– The information would not be provided to the data

subject himself because of the application of a subject access exemption or

– Where the information would fall under the DPA, the individual has exercised his right to object to processing and the objection has been accepted by the data controller

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SCOTTISH INFORMATION COMMISSIONER

• Deals with complainants• Information Notice• Decision Notice• Enforcement Notice• Not an offence to ignore a Notice, but action for

contempt of Court possible• (Code of Practice also deals with complaints

procedure)

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THE COMMISSIONER (CONTINUED)

• Commissioner approves/rejects publication schemes;

• “Practice Recommendations” (when the Commissioner thinks that the public authority is not meeting the requirements of a Code of Practice which applies to it).

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OFFENCE (SECTION 65)

• Where a request has been made

• The information would be communicable under the FOISA

• Offence for any person to take any action with the intention of preventing disclosure

• Applies to both the authority and the individual employee

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WHAT HAPPENS NEXT?