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Freedom of Information from all public services

Freedom of Information
The Scottish Executive's Consultation on Draft Legislation
The UNISON Scotland Response

May 2001


Executive Summary

UNISON welcomes the improvements on the legislation and the fact that some previous comments have been taken on board.

However the Draft Bill still requires improving, and a commitment to resource the regime is required.

  • We want to see the introduction of a ‘purpose' clause detailing the aims of the legislation and its coverage - especially that it is the intention to apply to all public service providers.
  • The Scottish sections of cross-border bodies should be subject to the Scottish legislation.
  • All public service providers should be clearly covered by the legislation. We suggest some alternative ways to ensure better coverage.
  • We think that requests should be acceptable in person and by phone. There should be a system of recording such requests.
  • We do not think that authorities should be able to pass the full costs of searches (less the first £100) on to applicants. Neither do we agree that authorities can refuse to provide information that costs over £500/550.
  • Each authority should be required to appoint a designated Freedom of Information Officer.
  • UNISON is opposed to the use of class-based exemptions, in particular with reference to: the formulation of policy by the Scottish Administration; trade secrets and investigations. We think that contents-based exemptions are sufficient to ensure a proper balance of information.
  • Extra resources should be made available in the short term to the Scottish Information Commissioner's Office:
  • to establish guidelines, training and codes of practice
  • to open up working groups to users as well as providers.
  • The Scottish Information Commissioner's position should not be combined with the Scottish Ombudsman.
  • There is a clear requirement for extra resources to be given to cover the admitted extra costs.
  • This should cover the estimated costs and further research should be carried out in to the preparedness of public authorities and others to adapt and deliver this legislation.
  • Training should be established for staff.

  • Proper systems should be put in place by affected authorities.

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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 draft Freedom of Information (Scotland) Bill, both from the perspective of trade unionists working for public authorities and other public service providers, and from the perspective of information and archive workers whose job it will be to provide the information sought under the legislation.

We commented on the Consultation Paper — An Open Scotland — and we are pleased that many of our comments have been taken on board.

We welcomed the greater extent and powers proposed in that paper compared with the UK legislation and likewise welcome the commitment to such improvements on the UK Act as; a strong and independent Information Commissioner; and the stronger harm test which should back up the commitment to a general right of access to information held by Scottish public authorities.

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

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 commitment to provide the resources to public authorities to deliver the service, was made. 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

A 'Purpose' clause

Whilst the title of the draft Bill says that it is about disclosure of information held by Scottish public authorities, it does not:

  1. cover the principle set out in the consultation document — An Open Scotland (para 2.4) 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 organisation; charitable and voluntary organisations — and there appears to be no statement of intent that they should be covered, leading to the possibility of a two-tier system.

  2. outline the reasons behind the legislation. Most FREEDOM OF INFORMATION legislation is introduced to ensure the right of a citizen to information — especially on services that affect them. The objectives of this are often outlined 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

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 is aware that this is still under consideration by the Scottish Executive and would strongly urge the adoption of such a clause to delineate the aims and coverage of the legislation.

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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Coverage - cross border bodies

We also suggested that the Scottish organisations/committees of UK bodies should be included under the Scottish rather than the UK legislation, in order that there are not two regimes operating in Scotland.

This does not appear anywhere in the draft Bill and we assume tha t they will be covered by the UK legislation.

We feel that this has the potential for confusion — especially when the existing Data Protection legislation is included. The problem is exemplified by the Scottish Committee of the Commission on Tribunals — the Scottish part of a UK Commission which supervises the function of tribunals in the public sector. This Scottish Section, itself will presumably be covered by the UK legislation, but many of the Tribunals it monitors will be covered by the Scottish Act.

It would be clearer if Scottish Sections of UK bodies were covered by the Scottish Freedom of Information Bill.

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Coverage - Scottish public authorities

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

  1. Scottish Public Authorities (including publicly-owned companies) (Sections 3 and 6)
  2. Bodies designated by ministers as providing a public function or providing a service under contract (Section 5)
  3. Public authorities to which Act has limited application (Section 7)

Public authorities are listed under Schedule 1

UNISON's view is that, whilst it is understood that work is still ongoing on the lists — its publication indicates the need for far more stringent incorporation of public service providers.

Whilst cognisance has been taken of some of the missing bodies from the consultation period, 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:

  1. whilst Scottish Enterprise is listed, Local Enterprise Companies are not
  2. Whilst the Scottish Tourist Board is listed, local tourist boards are not
  3. Valuation boards are not listed
  4. Housing Associations are not listed and Scottish Homes has stopped being listed
  5. Careers Scotland is not listed, and neither are the various companies/consortia providing careers advice
  6. The Scottish Prisons Service is not listed.
  7. The Health Service Commissioner for Scotland and the Commissioner for Local Administration in Scotland are not listed but the Scottish Parliamentary Commissioner for Administration is.

In addition there is no indication of the attitude towards public services 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.

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.

We suggest the following improvements:

  1. the inclusion of a clear purpose clause indicating the intention of the legislation to cover all providers of public services.
  2. The publication of advice on the frequency and automaticity of the designating of ‘non public' bodies under Section 5
  3. The inclusion of more specific named bodies either in Schedule 1 or in a separate schedule of designated bodies
  4. Some kind of 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.

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Accessibility (Sect 8)

UNISON is concerned that, whilst requests are acceptable in written or electronic means, requests in person or by phone are not to be acceptable. 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 requests for information so that they are capable of being used for subsequent reference.

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Speed (Sect 10)

UNISON is pleased to see the improvements on the UK Act for responding to requests and for reviews of refusals to provide information. However, unless proper resourcing is provided and organisation of records are done, it is likely to be ineffective. (See below)

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Affordability (Sect 12)

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 should be £250 — not £100 as suggested. We are also pleased to see the acceptance that charging cannot fund the provision of information.

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 £500. This figure is lower than that in the UK legislation and the costs that an authority can charge for could end up as more then under the UK legislation.

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 £250 should be free and there should be consideration of a scheme for not-for-profit bodies to be able to claim assistance.

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Ease of Use (Sect 15)

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.

We also think that the Codes of Practice issued by Ministers under Sections 59 and 60 should be utilised by the Commissioner to decide on the proper functioning of authorities as far as Freedom of Information is concerned.

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Exempt Information

Part 2 of the Bill

Class-based exemptions

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.

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 that the content based exemptions would be sufficient for most tests.

In particular:

  1. we can see little or no reason why the formulation of other public authorities are not exempt but that formulation of Scottish Administration policy is a class-based exemption (Section 28)
  2. why ‘trade secrets' are a class-based exemption when ‘commercial interests' are content based
  3. Why, if law enforcement matters (Section 34) are covered by a content-based exemption, investigations by Scottish public authorities are covered by a class-based exemption.

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

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

Proper resources must be made available to this office to enable the job to be properly carried out.

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

  1. to allocate extra resources to this function in the short term to establish guidelines, training and codes of practice;
  2. to open up working groups and training to prospective users of the Freedom of Information regime as well as the providers.

It is UNISON's view that considerable confusion could arise if the post of Scottish Information Commissioner was to be combined with the Scottish Ombudsmen. We see the Scottish Information Commissioner function as distinct from the ‘complaints system' function provided by the Ombudsman. Of course the relationship between the offices should be positive and the need for information sharing is important.

The Health Service Commissioner for Scotland and the Commissioner for Local Administration in Scotland should also be covered by the Freedom of Information Draft Bill.

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Public Records, Costs and Structures

Parts 1, 5 and 6 of the Bill

We are disappointed that, whilst there is an estimate made of the cost of the legislation (in the region of £2.5m-£4.8m per year) and that this cost should cover costs relating to the Scottish Information Commissioner, internal reviews in authorities, training and duty to publish information etc, 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.

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.

It might well have added ‘and proper resources are not supplied to allow this to be done."

It is worrying to read such a complacent statement in the Commentary on the Draft Bill as:

‘…many Scottish public authorities already handle requests for information…. And will have existing structures in place able to support the provision of information under the freedom of information legislation.'

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 enforce.

To introduce a new ‘culture' and regime onto this function without including the resources to train, staff and create procedures, could mean a disaster for Freedom of Information.

At the very least proper 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.

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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.

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

We would be willing to discuss these comments further if you feel it would be useful. We will also be keen to become involved in further discussion on the implementation of the legislation.

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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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