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Positively Public Information

Freedom of Information (Scotland) Bill
UNISON Scotland Written Evidence to
The Scottish Parliament's Justice Committees

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1. Executive Summary

UNISON welcomes the opportunity to give evidence to the Justice Committee
on the Freedom of Information Bill. Whilst we are supportive of many of the
positive aims of the bill we feel that legislation's coverage is somewhat
weak, and that a commitment to resource the regime is required. We also
feel that, the lack of many changes from the draft Bill to this Bill
indicates that concerns raised by respondents have not been addressed by
the Executive. In particular we would like to see:

* The introduction of a 'purpose' clause detailing the aims of the
legislation and its coverage - and in particular, that it is the intention
to apply to all public service providers.

* All public service providers being clearly covered by the legislation. We
suggest some alternative ways to ensure better coverage.

* Requests for information being acceptable in person and by phone. There
should be a system of recording such requests.

* That authorities should not be allowed to refuse to provide information
that costs more than an amount prescribed in the regulations, and/or is
perceived to be part of a campaign. Both could be open to misuse.

* Each authority should being required to appoint a designated Freedom of
Information Officer.

* No use of class-based exemptions. In particular these are anomalous in
the cases of, formulation of policy by the Scottish Administration, and
trade secrets. We think that contents-based exemptions are sufficient to
ensure a proper balance of information.

* That guidelines, training and codes of practice, are established as soon
as possible. We suggest some ways forward.

* A clear commitment for extra resources to be given to authorities to
cover the admitted extra costs.

* Further research being carried out into the preparedness of public
authorities and others to adapt and deliver this legislation.

* Training being established for staff and users as soon as possible, not
necessarily waiting for the bill to be enacted.

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2. Introduction

2.1 UNISON Scotland is Scotland's largest union with nearly 150,000
members working in Scotland's public services. We have very clear views on
the Freedom of Information (Scotland) Bill, firstly as the trade union that
represents the archivists, information officers and other public authority
staff who will require to supply information requested under this
legislation. In addition, as the trade union representing staff working for
public authorities and other public services providers, we need to access
such information ourselves. In particular in order to be able to discuss
the future of public services, especially those threatened with cuts,
outsourcing and reorganisation.

2.2 We commented on both the Consultation Paper - An Open Scotland -
and the Draft Bill. We were pleased that some comments have been taken on
board, but we are disappointed that our main comments have not been

2.3 We welcomed the greater extent and powers proposed by the Freedom
of Information (Scotland) Bill compared with the UK legislation and such
improvements on the UK Act as; a strong and independent Information
Commissioner; and the stronger harm test of ''substantial prejudice'.

2.4 However there are still too many unwarranted restrictions in the
legislation for us to be totally supportive. The legislation could be
dramatically improved by the adoption of a relatively small number of
improvements. Some of these are laid out below.

2.5 In addition to improvements in the bill itself, the commitment of
the Scottish Executive to Freedom of Information would be demonstrated
beyond doubt, if a firm pledge was made to provide the resources to allow
public authorities to deliver the service. This will be dealt with in full
later on.

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Access to Information held by Scottish Public Authorities
Part 1 of the Bill

3. A 'Purpose' clause

3.1 The title of the Bill says that it is about disclosure of information
held by Scottish public authorities. This is a step back from the aims set
out in the consultation document - An Open Scotland (para 2.4) - namely
that Freedom of Information should be set as widely as possible and should
cover Scottish public service providers:

* Many public services are now provided by bodies that are not public
authorities --private companies: non government organisations; charitable
and voluntary organisations - and there is no statement of intent that they
should be covered, raising the danger of a two-tier system. Instead
coverage might be defined by reference to bodies fitting a certain
description - for example, the Human Rights Act 1988 applies to all bodies
with "functions of a public nature".

* Most freedom of information legislation is introduced to ensure the right
of a citizen to information - especially on services that affect them. This
and other purposes are often outlined in the legislation. Purposes such as,
'leading to a more open and inclusive society; empowering the public to be
motivated in public life; and ensuring a citizen that is better informed
and therefore better able to make informed decisions etc' can be useful in
outlining the reasons behind the legislation.

3.2 Both of the above aims could be advanced by the introduction of a
'purpose clause' detailing the aims of the legislation and its prospective
coverage. UNISON would strongly urge the adoption of such a clause to
delineate the aims and coverage of the legislation.

3.3 In particular such a clause (or indeed the Bill's title if there is
to be no such clause) should indicate that it is intended that FofI is
intended to apply to all public service providers equally.

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4. Coverage - Scottish public authorities

4.1 Section 3-7 of the Draft Bill lists the coverage of public
authorities. This is broken down into:

* Scottish Public Authorities (including publicly-owned companies)
(Sections 3 and 6)*

Bodies designated by ministers as providing a public function or
providing a service under contract (Section 5)

* Public authorities to which Act has limited application (Section 7)
Public authorities are listed under Schedule 1.

4.2 UNISON's view is that this list indicates the need for far more
stringent incorporation of public service providers.

4.3.1 Cognition has been taken of some of the public bodies missing from
the Draft Bill, but the following 'public service providers' have not been
listed - despite the fact that they are generally considered by Government
and others, to be part of the social sector:

* Housing Associations and are not listed, Scottish Homes has stopped being
listed, and Communities Scotland has not been added

* Careers Scotland is not listed, and neither are the various
companies/consortia providing careers advice

* Whilst Scottish and Highlands and Islands Enterprise are listed, Local
Enterprise Companies are not.

* Social Inclusion Partnerships and area regeneration Partnerships are not

4.4 Many public services are now being provided by voluntary,
charitable or private organisations - for example residential and other
care services; schooling or educational services; hospital care, leisure
and museum services - and these are in receipt of considerable sums of
public money. UNISON thinks that these providers should be subject to the
same public responsibilities as traditional public authorities, or we risk
setting up a two-tier freedom of information regime.

4.5 There is also no indication about how frequently the 'Bodies
designated by ministers as providing a public function or providing a
service under contract' will be designated, or how long it might take,
given each body has to be consulted prior to its designation. It might have
been helpful if listings of these were started now.

4.6 UNISON feels that these loopholes must be addressed in order to
avoid the position where some providers are subject to the provisions of
the Act and some are not. Many will only be covered if Ministers
specifically decide to include them - such as the companies providing the
new trunk road maintenance contracts, housing associations running
Scotland's social housing sector and private companies providing services
like prisons, school and hospital maintenance.

4.7 We suggest the following improvements:

* the inclusion of a clear purpose clause indicating the intention of the
legislation to cover all providers of public services (see above).

* The inclusion of 'designated organisations' under Section 5, either in
Schedule 1 or in a separate schedule of designated bodies

* A system to be established to adjudicate on whether an organisation
should be subject to the Freedom of Information regime - perhaps an extra
power given to the Scottish Information Commissioner.

* Publicising the frequency and automaticity of how 'non public' bodies
under Section 5 are to be designated.

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5 Accessibility (Sect 8)

5.1 UNISON is concerned that, whilst requests - both for information
and for review - are only to be acceptable if delivered by written or
electronic means. Requests in person or by phone are not. We think that
this restricts access and is potentially discriminatory against those who
have difficulty with written communications. It should be possible to
develop a system of recording all requests for information so that they are
capable of being used for subsequent reference.

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6. Affordability (Sect 12)

6.1 We are pleased that the basic level of changes for information will
be provided free of charge - although we think that the bottom limit on
this is too low at ú100. We are also pleased to see the acceptance that
charging cannot fund the provision of information.

6.2 However, we are unhappy at the low level at which the suggested
'ceiling' is set. In particular the removal of any obligation to provide
information that might cost more than ú500. This figure is lower than that
in the UK legislation and consequently the costs that an applicant can be
charged could end up as more then under the UK legislation.

6.3 We think there should be no 'higher limit' cut off for information
provision and that the costs lower down the scale should not be fully
passed to the applicant. All applications that cost less than ú250 should
be free and there should be consideration of a scheme for not-for-profit
bodies to be able to claim assistance.

6.4 We are also opposed to the provision in Section 12 (2), to allow
authorities to ignore multiple requests if they perceive them to come from
an organised campaign. This proposal is unnecessary and undemocratic and
should be scrapped.

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7. Ease of Use (Sect 15)

7.1 We are pleased that our suggestion of a duty to assist and the
requirement to publish guides and lists have been incorporated. We think
that these should be strengthened by the requirement for an authority to
appoint a designated 'Freedom of Information' Officer.

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Exempt Information
Part 2 of the Bill

8. Class-based exemptions

8.1 Whilst UNISON accepts that there is a right to privacy and some
information should have appropriate protection to safeguard the operation
of public services, we can still see no reason for so much information
still to be the subject of class-based exemptions.

8.2 It seems to us that, as this legislation aims towards openness and
the need to satisfy a harm test of 'substantial prejudice' to the matter in
question and the requirement to consider the public interest in disclosing
the information, means that content-based exemptions would be sufficient
for most tests.

8.3 In particular we can see little or no reason;

* why the formulation of policy in other public authorities are not exempt
but the formulation of Scottish Administration policy is subject to a
class-based exemption (Section 28)

* why 'trade secrets' are a class-based exemption when 'commercial
interests' are content based

8.4 We would reiterate our comment made on the consultation paper that
content-based exemptions would be sufficient to ensure a proper balance of
information was made available.

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The Scottish Information Commissioner and Enforcement
Parts 3 & 4 of the Bill

9.1 UNISON supports the appointment of an independent Scottish Information
Commissioner and is pleased to note the strength of the powers granted to
this office.

9.2 Proper resources must be made available to this office to enable
the job to be properly carried out. We are aware that the original
resources dedicated to the Irish Office of the Information Commissioner
considerably underestimated both the number of staff and the amount of time

9.3 Especially important are the promotional and training aspects of
the post and UNISON would urge the Scottish Executive:

* to allocate extra resources to this function in the short term to
establish guidelines, training and codes of practice;

* to open up working groups and training to prospective users of the
Freedom of Information regime as well as the providers.

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Public Records, Costs and Structures
Parts 1, 5 and 6 of the Bill

10.1 We are disappointed that, whilst there is an estimate made of the
cost of the legislation (in the region of ú2.5m-ú4.8m per year), there does
not appear to be an appreciation that proper resources will be required to
enable efficient storage and search mechanisms to be set up.

10.2 As the Westminster White Paper (Your Right to Know, 1997) said
'Statutory rights of access are of little use if reliable records are not
created in the first place or if the arrangements for their eventual
archiving or destruction are inadequate.'

10.3 It is therefore worrying to read such a complacent statement in the
Financial Memorandum to the Bill as:
'...many Scottish public authorities already handle large numbers of
requests for information within existing resources, the net increase in the
cost to public authorities should, however not be significant...' The
source of this 'information' is not given but it is the experience of
UNISON members working in various parts of the information storage and
retrieval functions of Scotland's public authorities that the last twenty
years of reorganisation, cutbacks, outsourcing and restrictions have meant
that even such rights of access as at present exist can be difficult to

10.4 To introduce a new 'culture' and regime to this function without
the resources to train, staff and create procedures, could mean a disaster
for Freedom of Information. The following suggestions could take this some
steps forward.

* Research should be instigated into the preparedness of authorities to
adapt and function under this legislation.

* Training should be established speedily to ensure that staff are aware of
the likely provisions of the new legislation.

* Authorities covered by the legislation should have a duty to either
establish proper systems themselves or to use approved systems established
by other public authorities.

* Working groups involving users as well as providers, should be
established to start work on what is required to enable the Act to be

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11. Conclusion

11.1 Finally can we say that two major issues - the lack of complete
coverage of public service providers and the failure to recognise and
provide the proper resources are a danger to the full realisation of the
Scottish Executive's published hopes for this legislation.

11.2 The Bill is a positive step forward and is better than the UK
legislation but, unless it applies equally to all public service providers,
and unless the appropriate resources are given to ensure public authorities
can set up, and monitor systems and train staff. The objectives of this
very important legislation risk failure.

11.3 We welcome the opportunity to put these points to the Justice
Committee and would be willing to discuss the legislation further if you
feel it would be useful.

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For Further Information Please Contact:

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

Tel 0141-332 0006 Fax 0141 342 2835
e-mail matt.smith@unison.co.uk

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Submissions index | Home

Previous responses

* JUNE 2001 - Freedom of Information from all public services
Freedom of Information The Scottish Executive's Consultation on Draft Legislation The UNISON Scotland Response

* JANUARY 2001 - An Open Scotland, Scottish Executive consultation: UNISONScotland response - Freedom of Information

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