Legislation as a Driver to Continuous Improvement in Practice Rosemary Agnew Scottish Information Commissioner 19 September 2012 Implementing the Public Records Scotland Act

I will use the Freedom of Information Scotland Act to illustrate why effective records management is a key enabler to meeting other statutory duties I’d like you to join in

Setting the Scene Effective FOI processes Effective Records Management

Today – I focus on FOI Requirements under FOI and EIR legislation where there is a direct link to RM Why it is important to embed records management as a routine activity Why it is important to have clear responsibilities and arrangements How FOI can be an acid test of your RM Inspire and reuse legislation also relevant but no time to cover them Much of this is posed as a series of questions to take back to your organisation, rather than a handbook of how to.

How many of you …? 1 General Entitlement (1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority. How many of you here are FOI officers How many of you have been asked to provide training on how to access information to FOI officers How many of you have ever been asked by FOI officers or reviews to explain how the records management system works

Now the really exciting bit … s1(1), Right to information held by a public authority s9,12, 13 – fees and costs s10, s21 – 20 working days s17 – notice information not held s22 – records transferred to keeper of the records s23 – publication schemes s61 Code of Practice s1(5), requested information is not … to be destroyed before it can be given S65 – offence - altering records etc to prevent disclosure (1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority

s1(1), Right to information held by a public authority No need to think outside the box here What must you be able to do to provide information? Points to draw out: Need to know you have it Where it is Who holds it How to locate it Effective and comprehensive search functionality

ss9,12, 13 – fees and costs Location and retrieval must be efficient To enable this, the way records are created and archived should be clear and consistent Also applicable, Freedom of Information (Fees for Required Disclosure)(Scotland) Regulations 2004 Can charge for: Locating, Retrieving, Providing Up to £15 per hour, direct costs (e.g. copying) <£100, cannot charge £100 - £600 can charge 10% >£600 do not have to provide info

s10, s21 – 20 working days The clock starts ticking when the request is received Access to comprehensive, accurate information is vital – at every stage 20 days includes: locating, analysing, redacting/sending information and writing the response. RM is a key enabler because the quicker information is located the more time can be spent analysing and responding. This reduces risks related to incomplete or incorrect responses being made.

s17 – notice information not held Authority MUST say if it does not hold the information RM is key to identification of what held/ not held

s22 – records transferred to keeper of the records Must be able to identify when records were transferred Must consider whether to designate as ‘open’

s23 – publication schemes Must specify Classes of info Manner of pubn Free/ charge Public interest in Services Decisions taken RM implications Existence Naming/ class Format Version control Updating of material Section 23 (1) – Scottish public authority must have a publication scheme, publish in accordance with it and review from time-to-time

s61 Code of Practice Scottish Ministers’ Code Of Practice On Records Management By Scottish Public Authorities Under The Freedom Of Information (Scotland) Act 2002 Very consistent with the Keeper’s Model Records Management Plan and Guidance Used by FOI officers – could help communication http://www.scotland.gov.uk/Resource/Doc/933/0124124.pdf

Potentially biggest risk area s1(5), requested information is not … to be destroyed before it can be given S65 – offence … altering records etc to prevent disclosure In light of what you have heard so far – what do you see as the risks and how might they be mitigated? Accidentally destroyed routinely? Can’t identify who destroyed or why? – did they have authority? How will FOI officer know? How will RM know? How do you manage the period between request and review? How do you manage the period to allow for an appeal?

The acid test How many requests for a review of a decision upheld – more information found, timescales missed while searching? How many appeals to SIC upheld/ attracted negative comments? Has section 65 ever been invoked? How many complaints that documents are not up to date?

Benefits Efficiency in delivery of functions Enables meeting statutory requirements Avoid external regulation/ scrutiny Positive reputational impact Can keep your organisation out of court

Key questions? Does the organisation know its statutory information requirements? Are these built into records management systems? Are all staff trained to the level appropriate to their duties? Is RM an inherent part of risk management?

Any FOI legislation is only as good as the quality of the records to which it provides a right of access …rights are of limited use if reliable records are not created in the first place, cannot be found when needed or if arrangements for their eventual archiving or destruction are inadequate

Check the full range of information requirements for your organisation under a range of legislation – help may be needed even the organisation doesn’t know it wants it! HELP NEEDED

Questions?

Further information Scottish Information Commissioner  www.itspublicknowledge.info  01334 464610 @ enquiries@itspublicknowledge.info