Freedom of Information (no 72)
Useful - but not there yet
The provisions of Freedom of Information (Scotland) Act 2002
on public authorities come into effect from January 2005 (other
provisions re publishing guidance, listing bodies affected and
appointing the Scottish Information Commissioner are already in
It will apply to all public authorities under the control of
the Scottish Parliament, and may apply to other non-public bodies
providing Scottish public services. Other legislation - the Freedom
of Information Act 2000(the UK legislation), and the Data Protection
Act 1998(DPA) and the Disability Discrimination Act 1995 - impinges
on the functioning of this Act.
What it does
The Act attempts to create a new 'concept of openness' in Scotland's
public services, and in some ways is more progressive than its
UK equivalent. For example by using a 'harm test' of substantial
prejudice in exemptions.
It gives anyone a right to get information that is not 'exempt'
(see below) from Scottish public authorities. No reason needs
to be given, and there are strict timetables for the delivery
of the information. Authorities can charge for the cost of supplying
the information above the first £100 - which should be supplied
'Exempt' information is divided into 'absolute exemptions' and
exemptions subject to a 'public interest' test - ie the information
is exempt unless the public interest outweighs keeping it secret.
Exemptions are numerous but include:
- Info re formulation of Scottish Admin policy, or maintenance
of collective responsibility,
- A trade secret or info that would 'substantially prejudice'
- Personal information (covered by the DPA),
- If disclosure would endanger someone's health or safety.
The Act also created the new post of Scottish Information Commissioner,
whose job involves monitoring, promoting and enforcing the legislation.
The Act provides for Ministers to publish Codes of Practice such
as the Code on Records management http://www.scotland.gov.uk/about/
The Code on the Discharge of Functions by Authorities (currently
just finished consultation) http://www.scotland.gov.uk/library5
A further Code of Practice on the release of Environmental Information
has yet to be published
Ministers are also responsible for 'designating' any non-public
bodies who provide public services - either directly or under
contract to public authorities - as covered by the Act for those
An 'Implementation Group' has been set up including the public
authorities that will be affected - but not directly including
consumers or front-line staff.
We have welcomed the fact that this act is stronger than the
We argued for the widest possible coverage - wanting all public
service providers covered, and to reduce the exemptions - especially
for so-called commercial confidentiality, and trade secrets.
There are huge numbers of non-public bodies providing different
levels of public services - from small voluntary sector agencies
to large private-sector PFI consortia. These should be being identified,
but there seems to be no urgency amongst Ministers to do so.
Most importantly, however we pointed out that increased resources
would be needed to a) identify, track, record, store and supply
the information, and b) to train staff in the provisions and terms
of the Act, and appropriate staff in the procedures and responsibilities.
We also argued for trade unions representing the staff directly
affected to be involved in the discussions and training both for
staff and for the general public.
What Branches should do
It is time for local branches to start to raise the implications
of the FoI(S)Act with their employers. Some of the Acts provisions
are with us now, and the rest of them come into effect by January
Given the lack of resources that have been allocated to records
management and storage over the recent past, it is likely that
there is much work to do.
For example how is the authority going to comply with the timetable
for the adoption of publication schemes? Authorities must publish
schemes specifying what information they plan to publish, how
they will do that and whether they are to charge for this information.
These schemes have to be approved by the Scottish Information
Commissioner and must be submitted to him by 28 Feb 2004(Scottish
Ministers/Parliament/Administration, Local Government, Police);
31 May 2004 (NHS, Educational Institutions); 31 August 2004 (Everyone
Branches should ask:
- What resources are their authorities putting into implementing
the FoI(S) Act?
- Who is being appointed as lead officer for FoI?
- What training is being given to Front-line staff?
- How are requests going to be processed?
- For representatives from the appropriate staff to form part
of any planning that the authority is undertaking.
In terms of training, it might be useful in breaking down barriers
to suggest that authorities run some training that is open to
users - journalists, community groups, campaigning bodies etc
along with front line staff. This could help both sides begin
to understand what is likely to be wanted and what is likely to
Branches should also begin to compile information on appropriate
non-public bodies operating in their authorities and to get the
authority to do the same. This information should be used to put
pressure on Scottish Ministers to designate them 'public authorities'
using their power under Section 5
Branches should ensure that authorities are aware of the Guidance
contained in The Code on the Discharge of Functions by Authorities
particularly that about resisting confidentiality clauses
in contracts, and urged to abide by it.
And, of course, they should plan how they can use the Act to
request information that the Branch may need for negotiating and
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