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

EXECUTIVE SUMMARY

• The draft Code is a useful piece of guidance. We welcome the clear and strong line in favour of openness, and the advice to authorities.

• 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 specific training.

• Consideration should be given to providing a standard leaflet for the public, clearly explaining the options under transferring requests.

• 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 and openness.

• 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 rules

• 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.

Introduction

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 publication scheme.

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

1. 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.

2. There is no advice in the Code that authorities should commit sufficient resources to allow the significant work that will be required, to begin.

Issues raised by the Code of Practice

PART 1

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.

PART 2

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 is crucial.

·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.

PART 3

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

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

1. How well does the draft Code meet your expectations and/or requirements?

Well, but needs improvement.

2. Does the Code provide sufficiently clear guidance to authorities on their responsibilities under the Act?

Good, but areas of potential concern

3. 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 the legislation

4. How well does the Code deal with any concerns you may have about social inclusion/equality mainstreaming?

Problem re ‘in writing' clause

5. Are there other areas on which it would be helpful to provide guidance?

Designating non-public authorities

6. Is the tone appropriate?

For Further Information Please Contact:

Matt Smith, Scottish Secretary
UNISONScotland
UNISON House
14, West Campbell Street,
Glasgow G2 6RX

Tel 0141-332 0006 Fax 0141 342 2835

e-mail matt.smith@unison.co.uk