Advice for Freedom of Information
UNISON Scotland's response to the Scottish
Executive's Consultation on the draft Code of Practice under
section 60 of the Freedom of Information (Scotland) Act 2002
- The draft Code is a useful piece of guidance. We welcome the
clear and strong line in favour of openness, and the advice to
- There is a need for a code setting out the ways in which non-public
bodies providing public services will be designated under the
provisions of Section 5. This could either be a separate section
within this code or a separate code of practice, statutory instrument
or other procedural paper.
- Proper resources must be devoted to the provision of information,
or Freedom of Information may remain an ideal, and not a practical
reality. We suggest that advice along these lines be inserted
into the Introduction to the Code.
- A specific individual should be designated as
the person responsible under the Act.
- UNISON thinks that the issue of requesters providing sufficient
information to identify the relevant piece of information may
require specific advice and assistance, including guidelines and
- Consideration should be given to providing a standard leaflet
for the public, clearly explaining the options under transferring
- UNISON agrees with the general thrust of the advice to authorities
to resist requests for confidentiality. We would suggest that
an equivalent phrase to that used in para 46 Public
authorities should reject such clauses wherever possible'
should be used.
- Advice could also be usefully provided on what constitutes a
trade secret' (para 33) As long as there is no extant
legal definition UNISON suggests that a definition for the purposes
of the Code be drawn up to restrict the potential implication
of this phrase to genuine trade secrets'.
- UNISON suggests that as well as companies needing to ensure
their commercial interests are not substantially prejudiced',
it should also be clear that in doing business with the public
sector they will need to subscribe to the same principles of transparency
- It would be helpful if there was a further investigation and
further advice offered on a potential clash between Freedom of
Information legislation and European public service procurement
- Delete the phrase and raise the profile of competitive
tendering in para 45.
- We think that the words under contract' in para 49
should be deleted.
UNISON welcomes the opportunity to respond to the
Consultation on the Draft Code of Practice under Section 60 of the
Freedom of Information (Scotland) Act 2002.
As the largest union with members working in Scotland's
public services, our members have two clear interests in the successful
operation of this legislation. Firstly as the staff working for
local authorities, the NHS, Further and Higher Education, the Police
Service, many NDPBs, Scotland's water service and in the Voluntary
Sector, our members will be in the front line and behind the scenes
ensuring that information is retained, stored, published and supplied
under the terms of the Act.
Secondly as trade unionists and citizens they will
have considerable interest information about how decisions affecting
public services are arrived at. They may well wish to use the legislation
to access that information.
UNISON is therefore keen to ensure that the legislation
is as effective as possible and that the guidance to authorities
is as clear and comprehensive as possible.
The Draft Code is a useful piece of guidance and
we welcome the clear and strong line in favour of openness and the
advice to authorities on:
- the importance of the substantial prejudice' and
public interest' tests
- the need to avoid false 'confidentiality' clauses
- the need to be clear with non-public bodies that contracts should
not have clauses restricting information provision
- authorities responsibilities under the legislation
- the need for staff training
- the importance of establishing and maintaining a wide-ranging
However there are some problems. They divide into
general issues created by the Act which might be addressed by this
or subsequent guidance and issues raised specifically by the terms
of the Code. These latter are dealt with under the respective paras.
Issues needing further clarification
- The Act divides non-public authorities providing public services
into those doing so under contract' (section 33) and
those that can be designated under powers under Section 5. (These
two are not mutually exclusive)
Whilst the former section is covered quite exclusively
with clear advice (paras 41-49) which attempts to be comprehensive
(but see below) the latter procedure is not addressed and there
is no indication how the procedure to identify and designate such
bodies will operate.
We suggest that there is a need for a code setting
out the ways in which non-public bodies providing public services
should be identified. Ways in which public authorities and any
other interested parties can both suggest candidates, and comment
on the reasons why they should be designated, and receive information
on the initial decisions of Scottish Ministers and reasons for
those decisions. This could either be a separate section within
this code or a separate code of practice, statutory instrument
or other procedural paper.
It is important that public authorities and these non-public
bodies providing public services are aware that it is part of
that work to subscribe to the same degree of openness and transparency
as the public provide. This should be made clear in any advice
issued by Scottish Ministers and public authorities.
- There is no advice in the Code that authorities should commit
sufficient resources to allow the significant work that will be
required, to begin.
Authorities will need to establish (in many cases) or extend
(in others) a system to ensure that a complete and accurate
record of their business' is created, maintained, managed,
accessed, published and distributed.
Staff managing, recording storing and this information and front
line staff dealing with requests and explaining the legislation
need to be employed and trained.
Proper resources must be devoted to these jobs or Freedom of
Information may remain an ideal, and not a practical reality.
We suggest that similar advice to that above is inserted into
the Introduction to the Code.
Issues raised by the Code of Practice
Para 7 - UNISON thinks that this para should be tightened
up to suggest that a specific individual should be
designated as the person responsible under the Act. That person
could (of course) be head of a discrete unit.
Para 10 Means of Providing Information - Equality Issues, and
Part 11 Para 17 and 18 The contrary demands of providing information
that is accessible to all and the need in the Act for requests to
be in writing is illuminated by these clauses. It is clear that
the complexity of para 18 in trying to clarify ways which authorities
can ensure requests are in writing whilst not discriminating
against those with a disability, or who have difficulty with writing
would have been helped had this provision been more openly
drafted to ensure that requests were simply able to be verified.
Para 19 Provision of advice to persons making
requests - This para is rightly concerned with the problem when
requesters do not have sufficient information. Aid and assistance
will be vital if this is not to prove a potential major stumbling
block. Any information provider will tell you that getting sufficient
relevant information to identify what is actually being requested
·UNISON thinks that this particular problem may require specific
advice and assistance, including guidelines and specific training.
Para 28-32 -Transferring requests The confusion
in this part of the Code is understandable.
·Consideration should be given to providing a standard leaflet
for the public in clear, language, explaining the options under
transferring requests are necessary.
Paras 33-35 - Confidential Information UNISON agrees
with the general thrust of these paras advising authorities to resist
requests for confidentiality and we would suggest that an equivalent
phrase to that used in para 46 Public authorities should
reject such clauses wherever possible' should be used.
Advice could also be usefully provided on what constitutes a trade
secret' (para 33) As long as there is no extent legal definition
UNISON suggests that a definition for the purposes of the Code be
drawn up to restrict the potential implication of this phrase to
genuine trade secrets' potential and genuinely
innovative components, processes, and ingredients, rather than processes,
costs, and systems being hidden to cover potential flaws.
On a less significant point, no advice is included on what action
an authority should take if a third party' fails to respond
in time for information to be provided to a requester. Such advice
should be prioritised.
Para 41-49 Contracts - UNISON generally
welcomes the clear statements that authorities shouldreflect confidentiality
clauses wherever possible and that authorities should make it clear
to non-public bodies the implications of the Act.
UNISON suggests that as well as companies needing to ensure their
commercial interests are not (we suggest using the phrase substantially
prejudiced'), it should also be clear that in doing business
with the public sector they will need to subscribe to the same principles
of transparency and openness.
It would be helpful if there was further investigation and further
advice offered into a potential clash between Freedom of Information
legislation and European public service procurement rules. As UNISON
understands it, the latter tends to require that no 'restrictions'
are introduced into a contract and we are concerned that commitments
to openness may be interpreted as such. On the other hand, if it
is clear that such conditions apply to all suppliers this may be
considered fair. Further research should be done in this area and
future advice issued.
We suggest deleting the phrase and raise the profile of competitive
tendering in para 45. Competitive tendering has been largely superseded
by Best Value. Simply substituting and best value' in
the place of the above would be clearer.
We suggest that the advice in para 47 should added to, to make
it clear it is made clear to the contractor that information in
this category is still subject to the public interest'
and substantial harm' tests or if it is covered by an
absolute exemption what that is.
We think that the words under contract' in para 49 should
be deleted. Not all public services are provided under contract'
to a public authority. For example much housing provided by Registered
Social Landlords, education provided by private schools, residential
care provided by charities and private homes. As we have indicated
earlier there needs to be early advice on the procedure for designating
non-public bodies under Section 5.
Para 50 Personal Data - The need for data
collection records management and front line staff to have the implication
of the Data Protection Act, the Freedom of Scotland Information
Act (UK) and the Freedom of Information (Scotland) Act and their
interface should be added to this para.
Paras 55-61 - Requirement for Review - There seems to be
little point in the phrase be prepared to' in para 60.
We suggest it could be deleted.
Paras 64-66 Public Interest - In Para 65
we suggest that the factors listed should be listed in two blocks.
These factors that will tend to argue for disclosure and these that
will tend towards against disclosure.
In Para 66 we suggest adding false claims of commercial confidentiality'
to the list of things not to take into account. It
is our experience that this is a frequent problem.
We welcome this Code of Practice and hope to see its, already strong,
advice and guidance added to and improved by this consultation process.
We would be happy to comment further or be contacted to expand
on any area we have mentioned. We attach our responses to the specific
questions in Annex 4
CONSULTATION ON THE DRAFT CODE OF PRACTICE UNDER
SECTION 60 OF THE FREEDOM OF INFORMATION (SCOTLAND) ACT 2002
WHAT WE'D LIKE TO KNOW
- How well does the draft Code meet your expectations and/or
Well, but needs improvement.
- Does the Code provide sufficiently clear guidance to authorities
on their responsibilities under the Act?
Good, but areas of potential concern
- Is there more that authorities might reasonably do to enable
applicants to access the information they seek?
Train/resource/organise their staff and procedures and promote
- How well does the Code deal with any concerns you may have
about social inclusion/equality mainstreaming?
Problem re in writing' clause
- Are there other areas on which it would be helpful to provide
Designating non-public authorities
- Is the tone appropriate?
For Further Information Please Contact:
Matt Smith, Scottish Secretary
14, West Campbell Street,
Glasgow G2 6RX
Tel 0141-332 0006 Fax 0141 342 2835
Submissions index | Home