UNISONScotland www
This is our archive website that is no longer being updated.
For the new website please go to
Click here
Home News About us Join Us Contacts Help Resources Learning Links UNISON UK



An Open Scotland
Scottish Executive's consultation paper
UNISON Scotland Response


UNISON Scotland welcomes the opportunity to comment on the Scottish Executive's consultation document An Open Scotland.

With 140,000+ members working for Scottish public services UNISON has a clear membership interest in the wider availability of information on how decisions are made in the public services, and how that information is kept, stored and accessed.

In addition our members are citizens and have an interest in the best governance of Scotland.

UNISON believes in the broadest possible dissemination of information and that a better-informed citizenship serves to improve government. It allows people to have their say on how their services are provided from a background of accurate information.

We therefore welcome the Scottish Executive's commitment to open government and the provision of the distinctively Scottish proposals to legislate on public access to information about their public services. We have some suggestions for the improvement of the document, however. Our comments are laid out below.

Top of page

Purpose of Legislation

We feel that the legislation requires a clear clause defining its purpose. This should be inserted at the beginning of the legislation. Such a clause is common in Freedom of Information legislation elsewhere in Europe and assists when legal questions arise as to interpretation of the legislation. A clause dealing with the necessity of openness in the provision of public services and governance to ensure proper democratic accountability and informed decision taking is needed. A possible basis is the Ministers final two sentences in the first para of his foreword.

In addition to the statement of principles defining the purpose, we recommend that openness itself, should be asserted as a general principle, in some such terms as those of the Treaty of Amsterdam (Art. 255), which provides that "Any citizen of the Union...shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and conditions to be defined..."

We would also argue for the 'purpose' to include the need for all public services covered by the authority of Scottish Parliament to be included - however they are delivered (See also comments on Chapter 2)

Top of page

1. Introduction (pp 9-12)

1.5 Policy Background
UNISON suggests that clarification be added to this paragraph to deal with the position of solely Scottish arms of UK bodies (eg the Scottish Committee of the Council on Tribunals).

Such bodies should be covered by the Scottish legislation. Otherwise we would have, for example, the NHS Disciplinary Committees included in the legislation and the body that monitors them excluded.

1.13 Personal Information
As stated here, the right of access to information held on them by an outside authority is one of the most widely used rights under Freedom of Information legislation. It is therefore regrettable that confusion appears to be introduced by the introduction of the position of the Data Protection legislation and its role in UK legislation. This matter is discussed further in Chapter 5.

Top of page

2 A Right of Access

2.2 Principles of Openness

UNISON supports the principle of 'presumption of openness', and the provision of a 'harm' test to assess the withholding of information. We also agree that the public interest should be the vital consideration when assessing the possible withholding of information. We fail to see the need therefore, for class based exemptions. This is discussed in our response to Chapter 4.

2.4 Scope of the statutory regime
UNISON wants to see the boundaries of the Scottish Freedom of Information regime set as widely as possible and agrees with the principle set out in this paragraph that all Scottish public services and public service providers should be the key bodies covered. This should include private sector providers of public services and also other bodies in receipt of public funds to provide services to the public.

This would therefore include - in addition to the 'services performed by contractors working for Scottish public authorities' - services provided under the Private Finance Initiative, Public Private Partnerships and other joint working arrangements; other public services provided by private suppliers - private schools; private hospitals; private residential care etc; and services provided by voluntary organisations and charitable trusts.

We would like to see, as well as an inclusive list of organisations, a clause added to the legislation to clarify that it is intended to include service providers.

Eg 'The legislation will cover all Scottish public authorities and public service providers including all these providing health care, local services; education; protective services; utilities; housing; social care; leisure and cultural services; legal services; etc. the providers of these services will be covered by the legislation however they are run - or organised - by public sector, voluntary sector, charitable trust or private sector.'

Annex A - Whilst it is recognised that this list is purely illustrative at this stage, it contains some glaring omissions. Scottish Enterprise, Highlands and Islands Enterprise and Scottish Homes are included but their 'local' arms - Local Enterprise Companies and Housing Associations - are not. Strathclyde Passenger Transport Authority is not included, and very importantly doctors and dentists - either as individual General Practitioners or in group practices - are not included and neither are other services run by GP's (eg emergency out-of-hours call centres). Other organisations not clearly mentioned include:

- Local Government Joint Boards and Valuation Boards,

- Local Health Co-operatives,

- Local Area Tourist Boards,

- Prison Visiting Committees,

There will no doubt be other obvious groups, some of which will be just errors of omission. However the fact that these omissions have occurred indicates the possibility of such things happening in the future. This is one reason we suggest an 'inclusive clause'. We would also want to see built into the legislation the provision to ensure that subsequent re-organisations/restructuring of the provision of public services will not exclude new bodies from being covered.

2.6 The Scottish Parliament
It would be ironic if the very body due to legislate to introduce an 'open Scotland' decided that the legislation would not apply to itself! We would be opposed to any such move.

2.8 & 2.9 Right of Access to Official Information
We support the general right of access to information (held in whatever form) and the opening of that access to all.

In addition to the simple and speedy response to requests we would want authorities to have a 'Duty to assist' placed on them, so they would be bound to advise applicants of their rights of appeal etc - in addition to being informed of the success or otherwise of their application.

We also would want authorities to give clear reasons for refusal.

Authorities should have a duty to publish a Guide/Register of information that exists. This could be compiled centrally, but would probably be better devolved to bigger bodies to do themselves with a central body assisting smaller providers.

It might also be useful to suggest they publish a list of what they cannot provide and why.

Proper resources should be given to appropriate bodies to do this.

Top of page

3 Costs and Charging

3.6 Charging

We would not wish to assert that adequate records management or archiving regimes are simply an additional burden on authorities. Records management, at least, is in principle self- financing and offers potential for cost-saving.

At the same time it is incontestable that Freedom of Information will place additional financial burdens on authorities. An Open Scotland shows no evidence of any attempt to estimate these costs, in particular the potential cost of the rights of applicants 'to choose the form in which they recieve information'

We also want to be clear that those exercising their rights should not meet these costs in full.

In order to ensure that the 'resources of Scottish public authorities are not unreasonablydiverted from their many other responsibilities' UNISON suggests that the resource implication to authorities be estimated and these resources provided by the government.

3.10 - 3.17 Proposals
On balance UNISON would prefer a variant of the second proposal listed, ie, no charges to the applicant for any request that costs under ú100. We would wish, however, to increase this level to £250. We would also want to vary this by giving authorities the power to waive charges above ú250 for applicants who could not afford this (pensioners, the unemployed, benefit recipients etc). Further consideration should also be given to whether not-for-profit organisations should be charged for information.

What we clearly do not want is for there to be any suggestion that the costs of providing information should be recouped by charging.

Procedures should be established to monitor the costs to authorities and reflect this in grant settlements.

Top of page

4 Test for disclosure

4.2 A need for balance

Given the important commitment to openness in the opening of the legislation; the need to satisfy a 'harm' test for some exemptions; and the need for authorities to consider the public interest even if 'harm' will occur it is disappointing that so much information is then the subject of class-based exemptions.

We feel that content-based exemptions would be sufficient to ensure a proper balance of information available.

Specific examples of class-based exemptions clearly working against the spirit of the legislation are listed in Annex C - particularly: - The exemption for information relating to The formulation and development of policy would mean that no public authorities would be required to release details of their internal procedures for deciding policy;

- The Research, statistics and analysis information listed in Annex C should not be subject to class-based exemption; and

- The class-based exemptions listed under Information given in confidence seem to us to be very open to abuse.

For example if anyone should want information to be automatically exempt all they would have to do is supply it to a(nother) public body in confidence whilst they are under no legal obligation! This should be removed.

Top of page

5 Personal Information

UNISON can see no reason why personal information should not be accessible under the Scottish Freedom of Information Regime as well as the Data Protection Act. One exception is already listed in the consultation paper. There may be more and it seems unnecessarily confusing to have personal information accessible under two different acts depending on what form it is held in. Dual access would seem a sensible provision.

Top of page

6 Reviews and Appeals

6.3 the Scottish Information Commissioner

This post should be a powerful and independent one. The post must be freely advertised and appointed in an open manner - we suggest that a recommendation by the Scottish Executive should go before an appropriate body of the Scottish Parliament for endorsement. We agree with the proposals regarding the function and powers of this post, including the power of inspection and seizure. Proper resources of both staff and finance, must also be allocated to the SIC to allow full involvement and promotional work.

We consider that deleting information to prevent disclosure should be a crime.

6.8 The Lord Advocate
We see no incompatibility between the terms of The Scotland Act and the proposed power to review The Lord Advocate's decisions on releasze of information. We would argue that the SIC should have the power to review decisions of the Lord Advocate not to disclose information.

6.13 Reviews and Appeals Procedures
Full resources to enable public authorities to set up effective review machinery should be allocated.

UNISON would favour the right of appeal against a decision by the Information Commissioner to an Information Tribunal.

Top of page

7 Public Records

7.3 Current Public Records system

The legislation should impose a duty on the relevant bodies to provide an adequate system of access to records through anarchive service supplied either by the authority individually or in conjunction with other authorities. The practice of depositing outside bodies' records with the Keeper of the Records would only be appropriate if it was assumed that these bodies were incapable of providing access to their own records where that access is best provided, ie locally.

The proposed archives legislation would presumably place a responsibility on the relevant bodies to provide access to their archival records.

7.6 Records Management
Twenty years of restrictions and cuts in public services in Scotland have done nothing for the maintenance of public records in authorities. Records management is routinely neglected and even such rights of access as at present exist (for example under the Local Government (Access to Information) Act 1985) can be difficult if not impossible to enforce.

The Scottish Executive must recognise the need for:

- effective archives and records management systems to be established in each authority/group of authorities

- the proper resources to be allocated to enable this to be done.

Guidance and best practice should be part of the Scottish legislation. In particular we would want to support the provision of a code similar to one proposed in the Westminster Bill. The Westminster White Paper, (Your Right to Know, 1997) said "Statutory rights of access are of little use if reliable records are notcreated in the first place, or if the arrangements for their eventual archiving or destruction are inadequate."

In addition to assisting applicants to exercise their rights, such a code would be a crucial protection to our members. Currently decisions are being taken on the retention our destruction of records, often with no other guidance than the past practice of the authority in question. This guidance may easily be inconsistent, and certainly it varies widely.

Top of page

8 Changing the Culture


The need to train authorities and individuals in the provisions and culture of openness before the implementation of legislation is agreed. But this should not unnecessarily delay the full implementation of Freedom of Information. We think the Scottish Information Commissioner should have the power to investigate 'refusals to provide information' before implementation of the legislation and offer advice and guidance to authorities.

8.5/8.8 Training Programme
A considerable programme of work and training will be required to foster the culture of openness sought. UNISON is clear that the Scottish Executive needs to will the resources as well as the legislation to enable this to happen.

The training should not just apply to the officers of public bodies. It should also be open to potential requesters of information (eg journalists/campaign groups etc)

In conclusion can we say that we fully support the aims and objectives of the Scottish Executive in moving towards open and accessible government.

We welcome this consultation paper as a considerable step in the right direction and are pleased to submit our comments. We hope that they will be seen as complementary and extending the proposals.

We will be available for further consultation and would welcome a future chance to comment.

Top of page

An Open Scotland - UNISONScotland Recommendations

1 UNISONScotland welcomes the legislation

2 The 'purpose' of the legislation should be detailed in the legislation, and the concept of 'openness' itself should be asserted as a general principle.

3 Scottish organisations of UK bodies - eg Scottish Council of Tribunals - should be covered by Scottish legislation

4 UNISON supports the 'presumption of openness'; the 'harm' test; and the crucial public interest test for disclosure.

5 The scope of the legislation should include all public service providers including - private sector providers; all quangos and local bodies (Housing Associations, GPs etc); charities and voluntary sector. An 'Inclusive not exclusive' clause would be a useful addition.

6 The Scottish Parliament must be covered by the legislation

7 UNISON supports a general right of access to information, open to anyone

8 Authorities should have a 'Duty to Assist' and give reasons for refusals

9 They should publish Guide/Register to information available and what is not available

10 The cost implications for authorities should be assessed and provided for by the Government. They should not be paid for by charges. The ' no charges for costs under £100' option should be chosen, with the cut-off figure extended to £250. The position of not-for-profit bodies should be further considered.

11 Class-based exemptions should be removed. Especially the exemptions for

- Research, statistics and analysis,

- Information given in confidence, and

- Policy-making.

12 Personal information should be available under both Data protection and Freedom of Information legislation

13 The Information Commissioner should be independent and powerful and have the powers and resources to function properly

14 Deleting information should be a crime

15 The Lord Advocate's decisions should be subject to review by the Information Commissioner

16 Proper resources must be granted to allow authorities to set up review processes

17 An Information Tribunal should be established

18 A duty to deposit must be introduced, to an appropriate archival service provided by the authority locally.

19 Effective archive/records management should be enforced, and proper resources should be granted to provide this.

20 Guidance and best practice should be disseminated, and a code of practice provided to assist applicants and protect staff.

21 Training must be given before implementation, but that should not delay introduction voluntarily - The Information Commissioner's office should be set up early to investigate, encourage and advise

22 Willing the resources is as important as the structures

Top of page


Submissions index | Home