Presentation to the In-house Lawyers Group Rosemary Agnew 7 March 2013 Scottish Information Commissioner

Overview Introduction Reminder of the regime The FOISA Amendment Bill What’s new with the Commissioner FOI requests – key issues for solicitors Resources Q&A 2

Scotland’s Access to information and data legislation FOISA EIR(S)s INSPIRe (Scotland) UK FOIA EIR INSPIRe DPA Reuse AHRA AMRA Access to information in Scotland is covered by a number of pieces of legislation. This list is not exhaustive. Those enforced and promoted by the Scottish Information Commissioner Freedom of Information (Scotland) Act 2002 Environmental Information (Scotland) Regulations 2004 INSPIRe (Scotland) Regulations 2009FOISA, EI(S)Rs and INSPIRE Scotland The above apply (predominantly) to Scottish public authorities, and companies wholly owned by them. . Those enforced and promoted by the UK Information Commissioner Freedom of Information Act 2000 Environmental Information Regulations 2004 INSPIRe Regulations 2009 These apply to UK wide authorities, which includes those who operate in Scotland – for example BBC Scotland, Forestry Commission Scotland. Data Protection Act 1998 This covers the whole of the UK including Scotland. Those enforced directly through the courts Access to Health Records Act 1990 Access to Medical Reports Act 1988 There are a number of more specialist access to information regimes, such as the Access to Health Records Act 1990 which gives access to the health records of someone who has died (DPA only applies to living individuals). Access to medical reports deals with reports which a GP writes for insurance companies. This is not an exhaustive list. Regulations enforced and promoted though the Office for Public Sector Information (OPSI) Although not directly related to access to information, the reuse of public sector information regulations deals with how public information, which may have been accessed via one of the regimes mentioned above, can be re-used. For example, they govern how and when an authority can impose conditions on re-use, including when it can charge. 3

The FOISA Amendment Bill The passing of the Bill My experience of the process Changes during passage Current situation Section 5 – designation Other provisions S18 S25(3) S59 S65 See briefing note Passing of the Bill Stage 3 of the Amendment Bill concluded 16 January 2013 – Parliament passed the Bill. Bill that was approved was quite different to the Bill originally proposed. The most significant change was the dropping at 2nd stage of the proposed introduction of an absolute exemption for information relating to communications with senior royals was dropped at Stage 2. The Bill will now receive Necessary orders in process of being drafted Royal Assent given on 19.2.13 Designation No new bodies are added to Schedule 1 as a result of the Bill. The Bill will introduce a section 7A to FOISA, which will require Ministers to report to Parliament every two years on the use, or otherwise, of section 5 (power to designate bodies). The first report must be laid before 31 October 2015. The Bill also amends section 5(5) of FOISA, widening the consultation on any section 5 order to also include “such other persons as they [Ministers] consider appropriate”. It was stated during the debate that this was introduced to ensure that service users, the public and those that represented then would be consulted, where appropriate. Nicola Sturgeon also announced that Ministers have written to local authorities to inform them that a section 5 order will be made “as soon as practicably possible”. This will bring ALEOs which deliver culture and leisure services within the scope of FOISA. It was also announced that Ministers will consult on bringing other ALEOs within scope, and we as considering further designation to e.g. contractors. Other provisions of the final Bill: S18 - The addition of section 38 (personal information) to the list of exemptions to which section 18 (“neither confirm nor deny”) can be applied. S25(3) - The clarification of the wording of section 25(3), setting out clearly that information contained within a publication scheme and available on request is exempt. Changes to make it clearer that info in a publication scheme is otherwise accessible for the purposes of FOISA (effectively tidying up the wording, rather than making changes S59 - The introduction of the power to modify the rules by which a record becomes a “historical record” (which will allow Ministers to reduce this time period in relation to certain exemptions, while maintaining some at 30 years) S65 - The extension of the time period in which a section 65 offence can be prosecuted to within 6 months of an offence coming to the knowledge of the prosecutor, as opposed to 6 months from the commission of the offence (corresponding change to EIRs). Briefing note Sent separately – summary of the changes to the Act. 4

What is new with the Commissioner? Section 14 Guidance Statistical information Approach to authorities Focus on sharing good practice Recent Learning and Development survey Timescales for responses/ Technical cases Approach to requesters/ applicants Rights v responsibilities Help requesters make better requests Seek resolution where possible Section 1 internal review Dealing with applications – internal review 5

Issues for solicitors – as applicants Wording of requests – generally good but remember FOISA not always the answer Ask for information not documents where possible “The true applicant” Solicitor or client? Personal data Requesting reviews Obtaining info on court actions - should you use FOI? Wording of requests Generally we see good practice by solicitors but would remind you of a couple of things: and linked to the distinction between complaints, questions and FOI requests for recorded information. Lawyers expected to make better worded requests – also an observation by the Court. Glasgow City Council v Scottish Information Commissioner [2009] CSIH 73 [here] at paragraph 45.   [45] A number of arguments were advanced in support of the Commissioner's approach. The first was that it was inappropriate to introduce such fine distinctions when construing legislation of this kind, which was intended to afford a right to the general public. We cannot agree. We accept, of course, that the Act confers a right on the public at large, and that it should not be interpreted or applied in a manner which would render the exercise of that right impractical or unduly difficult. In particular, although there will be cases where the request is made by persons who can be expected to describe precisely what it is that they wish to receive (the present case, where the requests were made by solicitors on behalf of a commercial client, being a paradigm case), FOISA gives a right to recorded information not documents. We issued guidance on this in 2010, following a 2009 court case which related to a very specific set of circumstances. The Court rules that a firm of solicitors could not insist on receiving information in a particular format, in this case property enquiry certificates, as it was already accessible to them in another format, ie via public registers. The case highlighted that FOISA gives the right to information not specific documents, but this doesn’t mean that requests for documents are, by definition, invalid. Often this is the most useful way to describe information, and will be valid. In 2011/112, 2% of appeals to our office were from solicitors (11 applications). We received 182 such applications between 2004/5 and 2011/12. The true applicant In 2009 following an appeal against the Commissioner, the Court of Session ruled that, in order for an appeal to be valid, it must include the name of the “true applicant”. This particularly affects solicitors who make appeals on behalf of clients. Following the court’s ruling, the Commissioner issued guidance in early 2010, which is available on our website. You must include the name of your client – that is, the true applicant, if you are making an appeal on his or her behalf. Solicitor or client? Don’t forget to remind your client that they do not need to appeal via a solicitor. If they make appeals themselves it is free. It’s a very straightforward process. All we require is to receive the appeal in writing, along with a note of the reasons for the appeal, and copies of prior correspondence are helpful. Three quarters of our appeals come straight from members of the public. FOISA is not the route for personal data A common error we see from solicitors is asking for their client’s personal information under FOISA. This type of information is subject to an absolute exemption, to ensure it is dealt with under the correct legislation, namely the DPA. It is best requested by way of a subject access request. An authority has a duty to advice and assist and should help you do this if you do ask under FOISA. It is also important that the difference between the treatment of data/ information is very different under FOISA and DPA. Under FOISA, if it is made available it is being put into the public domain – in theory for anyone to see – but SAR un DPA are specific to, and only available to the requester. Requesting reviews Surprisingly, it’s solicitors who often have difficulty requesting reviews of authorities. We’ve seen cases of solicitors sending reminder correspondence long beyond the point when a request for review can be made. This can delay proceedings significantly and can “time out”, if no valid request for review is made within 40 working days. You must ask the authority to carry out a review and state why you are unhappy with the earlier response. If you haven’t received a response, you should still request a review rather than simply send reminder letters. Information on court action Parties to a court action can apply to the courts for access to documents, but have to make a case for why they should be provided. FOISA does not require requesters to explain why information is needed, so on the face of it, it would seem to offer greater scope for recovery. The courts would have 20 working days to respond under FOISA, which may be too long if court proceedings are underway. Cost may be an issue – access to information under FOISA is usually free or very low cost, while using the court process can be expensive. FOISA includes exemptions which mean that a request under FOISA may see information redacted or refused, which would have been disclosed under the court process. E.g. s37 is an absolute exemption for court records lodged with a court for the purposes of proceedings. The bottom line is that you should weight these arguments up when deciding the bet way to access the information that you want. FOISA may be a more effective way of obtaining information BEFORE court action started. Strong public interest in upholding legal professional privilege, but the relevant exemption (s36(1)) is subject to the public interest. The Information Tribunal has recognised, however ,that information may be released in some cases e.g. Harm suffered to the party entitled, to legal professional privilege is slight Requirement for disclosure is overwhelming Privileged material discloses a wrongdoing by the authority Material discloses a misrepresentation to the public of advice given Material disclosed an apparently irresponsible a willful disregard of advice Generally, one off advice is more likely to be disclosed than advice extending over a period, and mattes of public administration are more likely to be released than ,for example, issues around criminal law, childcare cases, or deaths. 6

Tips for success Ask for recorded information Be specific Provide a time period Keep copies Communicate with the authority Keep FOI requests separate Request info electronically? Communicate –engage in dialogue with the bodies Authorities have a duty to advise and assist requesters Consider picking up the phone and discussing the information you’re looking for in advance of making the request. You can ask what information they are likely to hold on a particular subject. This helps to maintain good relations with the authority. It may also be the case that a public authority reveals that it is happy to provide the information to you without the need to submit a formal written request. Failing that, they may be able to offer information on what they do hold that falls within the scope of your request. Remember that FOI covers RECORDED information – try and phrase your request so that this is what is being sought – will help to focus authorities in their search e.g. all minutes, emails, or correspondence relating to… If you’re not sure what an authority holds, it can also be helpful to seek guidance on this initially – either informally via a telephone call or, for example, by requesting a file list in relation to a particular subject area. Be specific – try and be as specific as possible in terms of what you want – a request that is framed to broadly may: Result in information which is of no interest to you Places an unnecessary burden on authorities Be refused on cost grounds Provide a time period – time period will help to narrow and focus that request. Similarly other contextual information, on what subject etc, will help to focus the request and increase the likelihood of a successful request. Keep copies – if you’re making an appeal to the Commissioner these will be required. Communicate –this time communicate with each other: Share best practice and what does and doesn’t work Communicate with our office. We run an enquiry service which is open every working day, and can provide support and guidance on how to make a request, and what to do if a request is refused. Keep FOI requests separate – keep your requests separate from other correspondence. If there are other issues you want to raise with an authority do this separately. We know from our experience with public authorities that they can find requests which are buried within lengthy correspondence on other issues difficult to deal with. Requests may get ‘lost’ within the correspondence, or the authority may be unsure whether the request is intended to be a request or a rhetorical question. It’s best to keep your request correspondence as ‘clean’ and focused as possible, to minimise the likelihood of problems. Request info electronically – Some requesters have suggested to us that, if you are seeking a large amount of information from authorities, or are requesting the same information from a number of different authorities, it can be helpful to ask for the information electronically. Authorities are obliged to provide the information to you in your preferred format, providing it is reasonably practicable for them to do so. Having the information electronically can help you when collating and comparing the information, or when searching through the information for specific facts and figures for future use – using electronic searches rather than doing this manually.

Issues for solicitors – as FOI officers Section 15 and advice and information “The true applicant” Seeking clarification and making an ‘offer’ Communication – in responses and at organisation level Section 17 – how do you prove a negative, records mgt Public Interest test – inconsistency and poor process Authority/ autonomy Appeals Explanations and evidence not just assertions Develop general arguments to apply to specific information EIRs or FOISA 8

Questions?  www.itspublicknowledge.info Further information: Rosemary Agnew  www.itspublicknowledge.info  01344 464610 @ SIC@itspublicknowledge.info Questions Thank for listening

The following slides are for information, and will not be used directly during the presentation Questions Thank for listening

Resources Online guidance Keep up to date Key legal concepts and exemptions Your rights Research publications Case study videos 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 Events Holyrood FOI conference Centre for FOI in Scotland Regional Roadshows Training by other providers e.g. Act Now One-off briefings 11

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 There is no definition of ‘environmental’ information in the EIRs or FOISA. Elements e.g. air, water, soil, landscapes e.g. coastal areas Factors e.g. something that has an effect on the environment energy e.g. noise, radiation, waste, emissions Measures e.g. something designed to have an effect on the environment policies, legislation, plans Reports on implementation of environmental legislation Analyses such as cost benefit or economic analyses relating to measures State of human health and safety e.g. info on the food chain, housing, sanitation, cultural sites, built environment e.g. dams or roads. No geographical restriction – could relate to anywhere in the world not just Scotland S39(2). All info requests are coved by FOISA. S39 allows the requests to be exempt under FOISA if it is otherwise covered by the EIRs. In practice the authority can use this exemption to prevent it from having to consider the info under both FOISA and the EIRs. If it doesn’t apply s39 it must essentially make two decisions, one each under both laws. 12

FOISA vs EIRs FOISA EIRs Format In writing only Verbal permitted Defining ‘public authority’ In Schedule 1 Wider definition Charging Fees regulations Schedule of charges Cost limit Upper limit of £600 No upper/lower limit What info is held? Excludes info held on behalf of another Does not exclude info held on behalf of another Transfer of request Does not allow transfers Allows transfers Extending time limits 20 working days –no extensions Can be extended 40 working days Active dissemination Publication scheme Active and systematic Withholding information Exemptions Exceptions Public interest test Applies to some exemptions Applies to all exceptions Prohibition on disclosure Prohibitions apply under FOISA Prohibitions overruled under EIRs 13

INSPIRe (Scotland) Regulations 2009 Implement EU Directive 2007/2/EC ‘Infrastructure for Spatial Information in the European Community’ Regulations Applies to Scottish public authorities and ‘certain third parties’ Provide a right to ‘discover and view’ spatial data sets with certain limitations To be enforced by Scottish Information Commissioner Ministers to issue guidance INSPIRe vs EIRs? The INSPIRe regulations give effect to a EU directive concerned with developing a Europe-wide network of spatial datasets. ‘Spatial data’ means information relating to a geographic location. Datasets are collections of such data. The definition of Scottish public authority in INSPIRe refers to Schedule 1 of FOISA. Definition of ‘third party’ is more unclear - the Government can specify who these third parties are and we are waiting for clarification from them. Regulations oblige those covered to: Create and maintain metadata for their spatial datasets Establish services to allow datasets to be discovered, viewed and searched. Work to connect spatial datasets into wider networks. Public access can be limited in a number of circumstances not dissimilar to those which are exempt under FOISA, or excepted under the EIRs. The regulations are to be enforced by the Scottish Information Commissioner. We are awaiting clarification from Ministers on certain aspects e.g. which third parties it considers to be covered, and what its framework for spatial data networks will look like. At this stage, for more details of how INSPIRe will work in practice – contact Scottish Government. Commissioner’s view - in practice, all info coved by INSPIRe is also likely to be covered by EIRs. EIRs are a stronger access regime – entitled to ask for and be given information, rather than just discover and view. 14