Freedom of Information 1 Freedom of Information - overview FOI Unit (December 2011)

Freedom of Information 2  FOI Law – overview;  Main provisions of FOISA and EIRs - requests;  Reviews;  Appeals;  Where to go for help;  Scottish Government’s 6 Principles. Content

Freedom of Information 3  Freedom of Information (Scotland) Act 2002 (FOISA);  Environmental Information (Scotland) Regulations 2004 (EIRs);  Requirement to pro-actively publish information through a ‘publication scheme’;  Both regimes provide statutory right to access information held by Scottish public authorities;  Right extends to anyone, anywhere; FOI Law - overview

Freedom of Information 4  FOISA applies to any “information recorded in any form”;  EIRs apply only to “environmental information” in any “material form”;  Definition of ‘environmental information’ very broad and not easy to apply – FOI Unit can advise;  Both regimes retrospective – apply to all information held, no matter how old;  Presumption in favour of disclosure unless FOISA exemption or EIRs exception applies; FOI Law - overview

Freedom of Information 5  Information request can go through 3 stages (each with deadlines): Request; Internal review; and Appeal to Scottish Information Commissioner (SIC), who enforces regimes;  After SIC decision, only option is appeal to Court of Session on point of law. FOI Law - overview

Freedom of Information 6  Requests must be in writing or other ‘permanent’ form;  Statutory deadline of 20 working days for request and review;  Duty to advise and assist applicant;  Information must be released unless an exemption or ‘non-starter’ applies; Main provisions of FOISA - requests

Freedom of Information 7  Non-starters, ie information not held or otherwise accessible, cost limit (£600) exceeded, or request vexatious or repeated;  Requirement to explain if information not provided;  35 exemptions set out in 17 sections of FOISA (most subject to public interest test) – see exemption summary sheet);  Criminal offence to alter, destroy or conceal information to prevent disclosure. Main provisions of FOISA - requests

Freedom of Information 8  Requirements/processes very similar to FOISA but there are important differences: Requests can be made orally; 20 working days can be extended to 40 where information complex and voluminous; No upper cost threshold (£600 under FOISA); Exceptions rather than exemptions (all subject to public interest test) - see exceptions summary sheet; Fewer exceptions for information on emissions. Main provisions of EIRs - requests

Freedom of Information 9 Internal Review - Overview  If applicant is not satisfied with our response, they may within 40 working days require us to review our decision;  Review process is independent of original decision-making process and must be able to change decision.

Freedom of Information 10 Appeals to Scottish Information Commissioner - Overview  Applicant has right to appeal to Scottish Information Commissioner within 6 months of review decision (SIC can, and does, accept late appeals);  SIC has wide powers to investigate;  SIC decisions are binding;  SIC has strong enforcement powers;

Freedom of Information 11 Appeals to Scottish Information Commissioner - Overview  All appeals against decisions by the SG and agencies are handled centrally by FOI Unit;  Significant input required from original request handler;  Central handling helps maintain consistency, provides fresh look at case, and develops expertise in making case to SIC.

Freedom of Information 12 Where to go for help  First port of call – internal FOI guidance: Step-by-Step Guides to Handling FOI/EIRs Requests & Reviews – with templates; Exemptions/exceptions summary tables; Exemptions/exceptions guidance – linked to SIC website; Working assumptions, etc; FOI Tracker Guidance, etc; FAQs;

Freedom of Information 13  Your line manager;  Local FOI Lead;  Your Director (who is responsible for FOI performance/support in their area);  FOI Unit (in complex and sensitive cases or if legal advice is needed);  Communications – if media request;  Information Assurance Team (data protection). Where to go for help

Freedom of Information 14 SG’s 6 Principles “The Scottish Government: 1. Supports Freedom of Information as an essential part of open democratic government and responsive public services; 2. Operates within the Freedom of Information (Scotland) Act 2002 (FOISA) rather than propose significant changes to it, but adjusts the regime where it is necessary and sensible to do so; 3. Publishes information proactively wherever possible; 4. Maintains the exemptions set out in FOISA in particular to protect “private space” for Ministers and others to consider advice and reach decisions; 5. Maintains effective relationships with the Scottish Information Commissioner and other key stakeholders; and 6. Creates and shares information thoughtfully with regard to the principles above.”

Freedom of Information 15  These principles mean Ministers are committed to FOI, and FOISA/EIRs are here to stay;  So, we must take FOI seriously and ensure that we comply with our statutory obligations. SG’s 6 Principles

Freedom of Information 16  FOI Tracker – monitors progress of all logged requests and enables detailed reporting;  Weekly update to all Ministers, SPADs, DGs, etc (new requests/reviews/appeals & overdue cases);  Quarterly Statistics Bulletin (numbers & lists of requests and SG performance); and  Annual Report (comprehensive details of request numbers and SG performance). Monitoring & Reporting

Freedom of Information 17 Any questions?