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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 force.)

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 free.

'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' commercial confidentiality
  • 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 services.

An 'Implementation Group' has been set up including the public authorities that will be affected - but not directly including consumers or front-line staff.

UNISON's position

We have welcomed the fact that this act is stronger than the UK equivalent.

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 30 2005.

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 else).

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 be delivered.

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 campaigning purposes.

November 2003

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