Freedom of Information - overview FOI Unit (December 2011)

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

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

3. FOI Law - overview • 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;

4. FOI Law - overview • 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;

5. FOI Law - overview • 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.

6. Main provisions of FOISA - requests • 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;

7. Main provisions of FOISA - requests • 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.

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

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.

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;

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.

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;

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

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.”

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

16. Monitoring & Reporting • 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).

17. Any questions?