Presentation to SOLAR Rosemary Agnew 15 March 2013 Scottish Information Commissioner

Overview Introduction The FOISA Amendment Bill Issues and news Impressions so far Questions

The FOISA Amendment Bill (1) The passing of the Bill Changes during passage Current situation Section 5 – designation S18 S25(3) S59 S65

The FOISA Amendment Bill (2) - Implications of section 65 More likely to see allegations of s65 offences Puts spotlight on effective records management How does the authority know it has or had the information? alters – when was it changed and by whom? defaces – how is it protected and who has access? Blocks/ conceals – how is the information accessed? Erases/ destroys – who when and for what reason? Retention and destruction procedures Communicating requests to records holders Decision 155/2012

Issues and news (1) Section 14 Guidance Revised guidance Removing two stage-test, significant burden followed by one other Weighing of a number of factors one or more of which may apply – must be supported by evidence and reasoning significant burden on the public authority (use s12 if expense only); does not have a serious purpose or value; designed to cause disruption or annoyance to the public authority; effect of harassing the public authority; Manifestly unreasonable or disproportionate. Does not weaken the rights set out in FOISA Aim is to give flexibility Expectation that authorities will engage

Issues and news (2) Statistical information Rationale Based on S60 guidance Significant support - so far!

Issues and news (3) Approach to authorities Aim is to add value – how I see my (our) role Regulation through enforcement of Act(s) Promotion of rights Promotion of good practice Monitoring and assessment Focus on sharing good practice Recent Learning and Development survey Timescales for responses/ Technical cases Quality of responses, more on this later

Issues and news (4) Approach to requesters/ applicants Rights v responsibilities Help requesters make better requests Seek resolution where possible Decisions round-up – what other information would you like to see? Dealing with applications – internal review

Impressions so far (1) Lot of good practice Insufficient engagement - Section 15 and advice and information “The true applicant” – increasing challenge with Seeking clarification and trying to resolve Internal communications - authority/autonomy of FOI officers

Impressions so far (2) Internal reviews Public Interest test – inconsistency and poor process Appeals Explanations and evidence not just assertions Develop general arguments to apply to specific information EIRs or FOISA? Characteristics of authorities that do well Engage Take a risk-based approach Have robust review process – re-examine: search, do exemptions apply? – PI test where appropriate

The EIRs Requests for ‘environmental’ information Implements EU Directive 2003/4/EC Derived from ‘the Aarhuis Convention’ Covered by FOISA = Covered by EI(S)Rs Section 39(2)(a) of FOISA – how it works Requester does not have to invoke legislation Elements Factors Measures Reports Analyses State of human health

FOISA vs EIRs FOISAEIRs FormatIn writing onlyVerbal permitted Defining ‘public authority’In Schedule 1Wider definition ChargingFees regulationsSchedule of charges Cost limitUpper limit of £600No upper/lower limit What info is held?Excludes info held on behalf of anotherDoes not exclude info held on behalf of another Transfer of requestDoes not allow transfersAllows transfers Extending time limits20 working days –no extensionsCan be extended 40 working days Active disseminationPublication schemeActive and systematic Withholding informationExemptionsExceptions Public interest testApplies to some exemptionsApplies to all exceptions Prohibition on disclosureProhibitions apply under FOISAProhibitions overruled under EIRs

Resources Online guidance Key legal concepts and exemptions Your rights Research publications Case study videos Events Holyrood FOI conference Centre for FOI in Scotland Regional Roadshows Training by other providers e.g. Act Now One-off briefings Keep up to date Consultation responses Decisions database and Decisions round-up News releases and RSS feeds Bimonthly newsletter Commissioner’s plans, facts and stats

Further information: Rosemary Agnew   Questions?