1. “The right to know” Scottish Borders Council 27 March 2013 Rosemary Agnew Scottish Information Commissioner And Sarah Hutchison Head of Policy and Information

2. Overview Introduction Overview of Scotland’s FOI legislation SIC and authorities duties and functions Issues and news FOISA Amendment Bill Impressions so far Questions

3. 21.14 (FTE) Staff in total

4. Scotland FOISA EIR(S)s INSPIRe (Scotland) UK FOIA EIR INSPIRe DPA Reuse  AHRA  AMRA Scotland’s Access to Information and Data legislation

5. It’s complex!

6. Scottish Information Commissioner duties, role and responsibilities Corporate responsibilities We are a Scottish public authority ourselves Enforcement of FOI Dealing with appeals about how an authority has handled a request – legally enforceable decisions Other powers/ duties include getting information, reporting section 65 offences, providing advice and assistance

7. Scottish Information Commissioner duties, role and responsibilities Promotion of FOI Promoting the right to information Monitoring and reporting on how that right is being used Proactive publication Ensuring authorities have a publication scheme Assessment Assessing authorities’ performance

8. Your Duties under FOISA / EIRs Advise and assist requesters Respond in full to all requests within 20 working days If refusing information, explain why and on what exemption the authority is relying Adopt and maintain a publication scheme

9. The Freedom of Information (Scotland) Act 2002 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.

10. How good authorities deal with requests 1.Prepare for requests 2.Manage records 3.Recognise requests 4.Track and monitor 5.Empower staff 6.Deliberate effectively 7.Issue proper notices

11. How good authorities deal with reviews Within time limits Review decision and process – don’t simply rubber-stamp Ensure reviewer have technical knowledge or appropriate access to it All the other good practice from request stage

12. Effective request handling  Track  Examine requests  Identify scope  EIRs or FOISA?  Search, locate, retrieve  Consult  Think in terms of exemptions / exceptions  Who’s asking?  Why do they want it?  What are they going to do with it?  Information not documents  Will there be a fatality?

13. Release or withhold? Use this template for: Text in 2 columns Text and photos Text and graphs Could we release some information? What’s the actual harm? Would context help? Think exemptions / exceptions.

14. Proactive publication Use this template for: Text in 2 columns Text and photos Text and graphs What have people asked for? What will they ask for? What do your staff look for?

15. More general issues FOISA amendment bill Section 65 implications Other news Section 14 guidance Statistical information Approach to authorities Approach to requesters Impressions so far

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

17. 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

18. 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

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

20. 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 – we will use our full powers Quality of responses

21. 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?

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

23. 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

24. Issues for councillors – as applicants Wording of requests – generally good but remember FOISA not always the answer Ask for information not documents where possible “The true applicant” Requester or on behalf of? Personal data Requesting reviews

25. 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?

26. 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

27. Further information: Rosemary Agnew or Sarah Hutchison  www.itspublicknowledge.info  01344 464610 @SIC@itspublicknowledge.info Questions?