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

2. 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

3. Setting the Scene
Effective FOI processes
Effective Records Management

4. 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.

5. 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

6. 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

7. 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

8. 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

9. 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.

10. 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

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

12. 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

13. 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

14. 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?

15. 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?

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

17. 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?

18. 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

19. 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

20. Questions?

21. Further information Scottish Information Commissioner  @