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

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Freedom of Information

Freedom of Information - overview

FOI Unit

(December 2011)

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FOI Law – overview; Main provisions of FOISA and EIRs -

requests; Reviews; Appeals; Where to go for help; Scottish Government’s 6 Principles.

Content

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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

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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

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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

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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

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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

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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

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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.

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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;

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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.

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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;

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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

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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; and6. Creates and shares information thoughtfully with regard to the principles above.”

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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

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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

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Any questions?

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

Documents

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