FOI Practitioners Conference 27 June 2013 – Keynote presentations New Challenges – Rosemary Agnew, Scottish Information Commissioner Amending FOISA and Widening Scope – Sam Baker, Scottish Government A Transparency Agenda for Scotland – Kevin Dunion, Executive Director, Centre for FOI

New Challenges Rosemary Agnew Centre for FOI Practitioners Conference 27 June 2013

Public Records (Scotland) Act 2011 Use this template for: Text in 2 columns Text and photos Text and graphs Focus on public function Records management plan requirement Applies to contractors conducting public function ordKeeping/publicRecord sActIntroduction.asp

Directive 2003/98/EC (Re-Use of Public Sector Information) Use this template for: Text in 2 columns Text and photos Text and graphs All accessible information can be re- used. Machine readable formats Charges under licence Marginal cost pricing

Directive 95/46/EC – protection of individuals personal data Data transfer between borders National DP protection authority and named DPOs Notify breaches within 24 hours Right to be forgotten Narrowing legitimate interests test

Amending FOISA and Widening Scope Sam Baker FOI Unit, Scottish Government

Introduction The Amendment Act and what it does Other legislative changes – EIRs and s4 Reducing lifespans of exemptions Extending covering of FOISA

Freedom of Information (Amendment) (Scotland) Act 2013 Designed to address issues raised regarding original 2002 Act Consultation in 2011 on Bill proposals Bill introduced to Parliament in May 2012 Changes made at Stage 2 following Committee/ stakeholder feedback Bill passed unanimously 16 January 2013 New Act came into force 31 May 2013

What the new Act does Amends the existing 2002 Act to: Increased flexibility to revise the lifespans of exemptions allow bodies to neither confirm nor deny if they hold personal data (s18) allow longer period for prosecution of offences (s65) clarify that information available under a publication scheme is exempt require Ministers to consult more widely on orders to extend coverage and to report to Parliament every two years on their use of the power to extend coverage

The Amendment Act – a journey With the passage of the Amendment Bill we have reached an important landmark for FOI in Scotland. It is not the end of the journey, but it is an important milestone along the way….. It is a journey of greater openness and genuine transparency. Nicola Sturgeon, Deputy First Minister, 2013

Other changes to legislation Environmental Information Regulations EIRs also amended to extend timescale for prosecution of offences (destroying, altering, concealing information) Section 4 – public bodies subject to FOISA Mobility and Access Committee Criminal Courts Rules Council Scottish Civil Justice Council

Reducing lifespans of exemptions Some exemptions apply for information up to a certain age (e.g. 30 years) New Act gives flexibility to amend lifespans for some exemptions (but not necessarily all) Consultation launched May 2013 Proposes reducing most lifespans to 15 years in line with Government policy on file release Looking for responses and comments on business impact by 31 July

Extending coverage of FOISA Section 5 of FOISA – order-making powers to extend coverage MSP and stakeholder calls for FOISA to apply to organisations delivering services for public bodies Consultation in 2010 on potential bodies In principle support from many, but also concerns about administrative burden Government postponed decision until Amendment Bill completed

Scotlands 1 st section 5 order 16 January 2013 – Deputy First Minister announces plans to cover culture, sport and leisure trusts. Scottish Government consulted affected stakeholders on terms of draft order. 7 June 2013 – draft order laid in Parliament. Order to be considered by Local Government and Regeneration Committee. Proposes that bodies will be covered by FOISA from April 2014.

What next for FOI? Deputy First Minister committed to consulting on further extension of coverage – e.g. further arms length bodies. Continually checking Schedule 1 of FOISA is up to date – further section 4 orders if needed. If Parliament agrees, changes to lifespans of exemptions in 2014.

A Transparency Agenda for Scotland Kevin Dunion Centre for Freedom of Information, School of Law, University of Dundee

Scotlands Future Scotland should have a written constitution which reflects the values of the people of Scotland. The preparation of a written constitution should commence after independence under the auspices of the independent Scottish Parliament. Scotlands Future: from the Referendum to Independence and a Written Constitution Scottish Government 2013

SNP Proposed Constitution 2002 Every person shall have the right of access to governmental information save on a restricted range of matters in which secrecy or confidentiality is authorised or required by law and in the public interest. Article 10 SNP Proposed Constitution for an independent Scotland 2002

Constitutional Commission Every person shall have the right of access to government information. The right of access to official information can only be restricted by law to the extent necessary, in a democratic society, for the purpose of protecting personal privacy, national-security, or diplomatic confidentiality or for ensuring the due process of judicial proceedings. W. Elliot Bulmer A Model Constitution for Scotland - Making democracy work in an independent state

Scope of constitutional guarantee 1.The right to information is guaranteed. 2.Everyone has the right in compliance with the law, to get information about the activity of state organs, as well as of persons who exercised state functions. Constitution of Albania Everyone shall have the right to access information held by state authorities and organisations exercising public authority Constitution of Montenegro

Model Constitutional Guarantee of the Right to Information Everyone has the right to access all information held by public authorities, defined broadly to include all branches and levels of government, bodies which are created by the constitution or by law, bodies which are owned or controlled by other public authorities, and bodies which are substantially funded by other public authorities or which perform a public function, to the extent of that funding or function. Centre for Law and Democracy- March 2012 Entrenching RTI: Analysis of Constitutional Protections of the Right to Information

Sweden – Administrative Procedures Act Enquiries made by people shall be answered as soon as possible (Administrative Procedures Act 1986 Section 4). Each matter … shall be handled as simply, rapidly and economically as is possible without jeopardising legal security. The authority shall aim at expressing itself in an easily understandable way.(Administrative Procedures Act 1986 Section 7)

Global Right to Information Ratings – Top 32

Professor Kevin Dunion, Centre for Freedom of Information School of Law, University of Dundee