Freedom of Information Briefing2006

Today’s topics.....• Introduction• Benefits of FOI• Countries with FOI Legislation• Legislative context• The RGU approach to FOI• The Act• The Publication Scheme• Rights of Access• Dealing with requests• Exemptions• Fees• Environmental Information• Data Protection Act• Scottish Information Commissioner• Requirement for Review• FOI Officers responsibilities• Public confidence• Any Questions

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Benefits

“Openness is central to a modern, mature and democratic society.”- Scottish Executive, An Open

Scotland, 1999

Accountability – Transparency –TrustGood practice – Protects rightsGood institutional governance

Countries with FOI legislation

Legislative context

• Human Rights Act 1998• Data Protection Act 1998• Freedom of Information Act 2000• Freedom of Information (Scotland)

Act 2002• Environmental Information

(Scotland) Regulations 2004

University’s approach to ‘FOI’

• Records Services• Source of expertise - policy and guidance• Record keeping and Administration• Awareness raising - training

• Freedom of Information Officer network• At least one FIO per School & Department• Internal co-ordination• Local liaison point

Freedom of Information (Scotland) Act 2002

3 strands:• Individual requests

•From 1 January 2005• Publication scheme

•http://www.rgu.ac.uk/foi/•Must publish in line with obligations•Must keep up to date

• Records management•Offers business benefits too

Freedom of information in contextThe Freedom of Information

(Scotland) Act 2002 • Provides a right to access

information held in Scottish public authorities. This should,– Lead to increased

accountability– Help to breakdown ‘culture

of secrecy’– Ensure that public bodies

look outward to the communities they serve.

Outline of the FoI(S)A

• An authority subject to the FOISA must– Publish information under a Publication

scheme which has been approved by the Scottish Information Commissioner

– Respond to specific requests for recorded information held by it and supply the information requested unless an exemption applies

– Ensure that the records it holds comply with Records management standards.

Publication Schemes

• Schemes must specify– The Classes of information

which the authority publishes or intends to publish

– The manner in which the information is to be published and

– Whether the published information is available free of charge or for payment

Rights of Access• Anyone, anywhere

can make a request under the FoI(S)A

• Any information held in a recorded form is covered by the FoI(S)A

• Access requests can be made by children who have sufficient understanding. A child over 12 years is presumed to have such understanding.

Request for access

• Must be in writing or other permanent form

• Must state the name of the applicant and an address for correspondence

• Must describe the information which the applicant seeks

• May express a preference for the information to be provided in a specific way e.g. in Braille

Individual requests

• What counts as a request?– A query seeking any

information of any age about anything

– From anyone, of any age, anywhere in the world, for any reason

– Does not have to mention freedom of information

• Cannot ask why they want to know

• Only applies to recorded information

Section 60 Code of Practice• The Code covers :

– The provision of advice and assistance to those making requests for information

– The transfer of requests between authorities

– Consultation with interested parties

– Terms of contracts entered into by authorities

– How authorities should handle reviews and complaints

– Monitoring requests

http://www.scotland.gov.uk/Publications

Freedom of Information Officers’ Responsibilities

• Estimate fees to be charged as appropriate.

• Liaise with Record Services

• Co-ordinate information collection

• Offer general guidance/advice to colleagues

• Offer guidance and advice on exemptions

Implications for staff• Any request for information must be

answered in 20 working days (Monday to Friday) excluding bank holidays.

• We cannot ask why they want to know• If it is in your remit and you have no

concerns, answer it– Otherwise contact your manager or the

Records Manager for further guidance.• Make sure someone can find information in

your absence• All documents & e-mails may be open to

scrutiny.

Dealing with requests

• The University has an obligation to provide advice and assistance to all applicants.

• The applicant may have to supply further information to enable the required information to be found.

• The University does not have to comply with repeated or vexatious requests these may be Exempted.

Exemptions

• There are two kinds of exemptions:

• Absolute exemptions and

• Non-absolute exemptions

Absolute Exemptions

Where an absolute exemption applies the University does not have to consider the public interest in the disclosure of the information beforerefusing to supply it.

Absolute Exemptions : 1Information which the applicant canreasonably obtain because it is available to members of the public by another route:

– Available under the University’s publication scheme

– Made available under an enactment or– Made available by the Keeper of the

Records of Scotland

Absolute Exemptions : 2

• Information which is subject to an obligation of confidence that is – The information obtained by the University

from another person (which may include another public authority) and

– The person who made the disclosure could take court action for an order to stop the University disclosing the information

Absolute Exemptions : 3• Information which relates to a living

individual and the application for access to the information is made by that individual

• In those circumstances the individual will be entitled to access the information using his or her rights under the Data Protection Act 1998

Non- absolute exemptions : 1

The information will only be exempt if its disclosure will result in prejudice to the public interest and, in any event, the University must acknowledge that it holds the information and give reasons for the refusal to supply it.

Non-absolute exemptions : 2

Information derived from a research programme in respect of which

– Premature disclosure would substantially prejudice the programme or the interests of the participants

– there is an intention to publish within the next 12 weeks and it is reasonable not to give access pending publication

Non-absolute exemptions : 3

• Information, the disclosure of which would or would be likely to prejudice substantially – collective responsibility of Scottish

Ministers– inhibit the provision of advice or exchange

of views or – Otherwise prejudice substantially the

effective conduct of public affairs

Non-absolute exemptions : 4

• Information which constitutes a ‘trade secret’.

• Information which, if disclosed, would prejudice substantially the commercial interests of any person

• Information which, if disclosed, would prejudice substantially the economic or financial interests of the whole or part of the UK

Non-absolute exemptions : 5• A deceased person’s health record• Information which relates to a living individual

where the request is made by a person other than that individual if – The information would not be disclosed to

the individual (him or her self) or – The individual has lodged an objection which

has been accepted by the authority

Non-absolute exemptions : 6

• Environmental information which is available under other legislation – Environmental Information (Scotland) Regulations 2004

• Information the disclosure of which would endanger the physical or mental health or safety of an individual

Non-absolute exemptions : 7

• Information the disclosure of which would prejudice substantially the exercise of audit functions of a Scottish authority or the examination of the economy, efficiency and effectiveness with which the authorities use their resources

Non-absolute exemptions : 8

• Communications with the Queen

Fees

• The University does not have to charge a fee but may do so up to a maximum of £600

• If a fee is to be charged the

University must tell the applicant of the proposed fee by sending a Fees Notice after it receives the request

• Prescribed fees regulations exist

Environmental Information

• Environmental information is very widely defined and the current definition covers:– The state of any water or air, flora,

fauna, soil land or other natural site and

– Any activities or measures which either adversely affect or which are designed to protect any of the above

Environmental Information (Scotland) Regulations

• The University must deal with requests within 20 days or within 40 if additional time is required

• A fee can be charged but should be reasonable and not exceed the cost of providing the information

• Exceptions to disclosure less than exemptions under FoI(S)A

• Regulations came into effect from 1st January 2005

Data Protection Act and FoI(S)A

• Where an individual asks for access to personal data about him or herself the request does not come under the FoI(S)A. It is covered by an exemption from the FoI(S)A. If the authority is sure of the identity of the applicant it should be treated as an application for Subject access under the Data Protection Act 1998.

Data Protection Act and FoI(S)A – Third party access requests

Information will be exempt under FoI(S)A if– The disclosure would involve a breach of

the Data protection principles– The information would not be provided to

the data subject himself because of the application of a subject access exemption or

– Where the information would fall under the DPA, the individual has exercised his right to object to processing and the objection has been accepted by the data controller.

The Scottish Information Commissioner• The Commissioner must

– Promote good practice by Scottish public authorities in following the FoI(S)A and the codes of practice

– Consider what information it is desirable to have made available to the public about the FoI(S)A, its operation and good practice in relation to it and ensure that such information is made available.

Kevin Dunion

Scottish Information Commissioner

Requirement for review

• An applicant who is not satisfied with a response from the University to an access request may, within 40 days, require the University to review its decision

• The University must do so, usually within 20 working days

• If the request was vexatious or repeated the University need not review it but must respond to the request for review.

Decision of Commissioner• If the complaint is frivolous or vexatious the

Commissioner may reject it • The Commissioner must contact the University

and invite its comments on any complaint which he handles

• The Commissioner may seek to resolve the complaint

• If the complaint is not withdrawn or settled he must issue a decision notice stating whether the University has complied with the FoI(S)A

Failure to comply

If the University fails to comply with an information notice, decision notice or enforcement notice the Commissioner may bring the authority before the Court of Session which may deal with the failure as a contempt of court.

Popular areas for requests

• Commercial information• HR policies and procedures• Student policies and procedures •Core decision-making processes

• Topical issues• Funding sources and expenditure• Enthusiasts• Campaigning groups• Student issues • Community issues

Recent RGU Enquiries:• Information sought about legal courses and the satisfaction rating.• Details of investments of RGU Value of RGU's total investment assets.

Number and value of shares that the University holds directly in a number of companies as of 31 March 2006 (Action group)

• Statistical information sought about Law Courses (Researcher)• Statistical information from HR re the historical and changing nature of

women’s participation as both employees and students at RGU. (Researcher)

• Appeals procedure information requested. (Student)• ICT Contracts (Commercial organisation)• Academic misconduct by researchers (Press THES)• University Courses (MSP)• Students' Academic misconduct (Press EE)• Pass lists for two RGU Courses (Student)• RGU IT Strategy (MSc Student at other University• Academic quality information

Public Confidence, but .....The Commissioner, Kevin Dunion, said:• “ The Scottish public recognise that the freedom of

information act is a powerful tool, and the indications are that they are seeing the benefits of it. People are confident that more information will come into the public domain as a result and fewer believe authorities can get round the Act.

• However people still remain to be convinced that Scottish public authorities are changing culture to become more open and accountable.”

Positive Feedback• The survey revealed that members of the public view the law

positively.For those who reported having made requests since the law came into force in 2005, 76% had received some or all of the information they had requested.

• 68% of respondents to the survey agreed that, as a result of FOISA, more public authority information is available now than before.

• The proportion of respondents who agreed that public authorities would find ways around the law and avoid providing information has decreased since the last survey from 66% to 57%.

• However, the research also showed that people are less sure than in previous surveys that public authorities are becoming more open and accountable as a result of the Act. 60% of respondents agreed that they are, compared with 67% in the previous survey.

Further Information• RGU’s FoI Homepage

www.rgu.ac.uk/foi

• Scottish Information Commissioner’s Office www.itspublicknowledge.info

• Universities Scotland Guidance/Advice on specific FoI topics www.foi-he.org/index.htm

Any Queries ?

Thank you for listening today.