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Scottish Executive Freedom of Information (Scotland) Act 2002 Open Learning Workbook

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SCOTTISH EXECUTIVE FREEDOM OF INFORMATION (SCOTLAND) ACT 2002:OPEN LEARNING WORKBOOK

MODULE 10
MIDWAY REVIEW

10.1 CONTENT AND LEARNING OBJECTIVES

This module summarises what has been covered in the Workbook so far. You may also wish to review the self assessment questions and case studies from previous modules.

SUGGESTED TIME ALLOCATION: 50 minutes

10.2 LEARNING MATERIALS

10.2.1 The Freedom of Information (Scotland) Act 2002 ("FOISA" or the "Act") was introduced by the Scottish Parliament to ensure that people have the right to access information held by Scottish public authorities. It aims to increase openness and accountability in government and other public authorities. The FOISA is an important element in ensuring a thriving democracy.

10.2.2 The Act comes fully into force on January 1 st 2005. Once in force it provides a right of access to all recorded information held by Scottish public authorities covered by the Act. Anyone, wherever they are based, will be able to make an access request to a Scottish public authority.

10.2.3 The Act will apply to public authorities. Authorities that will be subject to the Act include the Scottish Executive, the Scottish Parliament, the police force, the NHS and local authorities. Certain non-departmental public bodies will also be covered, such as Highlands and Islands Enterprise. The Act applies to limited companies that are wholly owned by a public authority and, if designated, it may even apply to private companies carrying out functions for a public authority, for example under a contract.

10.2.4 The Act will be regulated by the Scottish Information Commissioner who will have a role that includes reviewing decisions made by authorities on access and enforcing the Act.

10.2.5 Each public authority must have a publication scheme. The purpose of a scheme is to make information available so that people can access it without having to make an individual request. A scheme will set out what classes of information the authority publishes, how the information is made available and whether there is a fee for the information. An authority can adopt a model scheme or develop its own, but each scheme must be approved by the Scottish Information Commissioner.

10.2.6 There are two Codes of Practice that derive directly from the Act; the section 60 Code will give advice on handling requests and includes advice on publication schemes and the section 61 Code deals with records management. The section 60 Code points out that as information which is otherwise accessible (such as in a publication scheme) is exempt under the Act, authorities are encouraged to publish as much as possible so that they have fewer individual requests to deal with. In addition, the section 60 Code states that schemes may include details of the authority's procedures for handling requests. The section 60 code will be finalised in Spring 2004.

10.2.7 The Scottish Information Commissioner has also issued guidance on publication schemes. The guidance gives practical advice on how to construct a scheme for a Scottish public authority, sets out how to submit a publication scheme to the Commissioner for approval and how to adopt a model publication scheme. The guidance also sets out good practice which should be followed wherever possible to ensure full compliance with the Act.

10.2.8 Good records management practices will assist authorities to meet their duties under the Act. They will ensure the creation of reliable records, make them easy to locate to deal quickly with access requests, and provide arrangements for their eventual archiving or destruction. Records management is covered by a separate Code of Practice, the section 61 Code, rather than by the Act itself. The Code provides guidance on records management policies, records management training and the keeping, management and destruction of records, both paper based and electronic.

10.2.9 Under public records legislation, certain authorities are required or permitted to transfer records to the National Archives of Scotland and the legislation sets out the requirement for this. Part Two of the section 61 Code outlines how such authorities should review and transfer their records. Other authorities transfer some records to other public archives and the procedures they should follow are covered in Part Three of the section 61 Code.

10.2.10 The Act introduces a general right of access. Any person who makes a request to an authority for information will be entitled to receive it, provided no exemptions apply. The request can be made by an individual or an organisation. The request does not have to be made by someone in Scotland. Anyone, anywhere can make a request for information. Authorities are only obliged to provide recorded information, such as computer documents, handwritten notes and videos. It does not matter how old the information is. Requests must be in writing or in another permanent form. Requests must state the name and address of the applicant and describe what information is required. There is no need to cite the Act or explain why the information is being sought. Authorities may charge a fee in accordance with fees regulations.

10.2.11 The Act specifies how authorities should handle requests for information. Requests should be dealt with promptly and in any case within 20 days. Authorities can ask for more information if necessary in order to identify the information requested. Exemptions may apply to some information, which means that the information does not have to be disclosed. If an exemption applies, the applicant should be given a written refusal notice. An authority is not obliged to comply with a request if the cost of doing so would exceed the amount set by the Fees Regulations or if the request is vexatious. If the information is not held by the authority, it must notify the applicant. If an applicant is dissatisfied with the way their request is dealt with, they can ask the authority for a formal review.

10.2.12 The section 60 Code will provide advice on certain aspects of handling requests. The Code describes some of the different ways that authorities can fulfil their duty to provide advice and assistance to applicants. For example, they could explain the Act to potential applicants, they could help those with disabilities, they could help the applicant to describe what they want more clearly. The Code also discusses how vexatious and repeated requests could be handled, the key issues to consider in transferring requests, when third parties should be consulted, monitoring and how complaints should be handled. The section 60 code also introduces some factors which may inform consideration of the public interest.

10.3 SELF ASSESSMENT CHECKLIST

1. Scotland needs a Freedom of Information Act because :

  1. everyone should have a right to the wealth of information held by public authorities;
  2. it will make public authorities more accountable;
  3. it will break down the culture of official secrecy; or
  4. all of the above ?

2. When determining a request a public authority must have regard to :

  1. the type of person or organisation making the request;
  2. the age of the information requested;
  3. whether there are grounds for refusing the request; or
  4. the reasons given for requesting the information ?

3. The Act will NOT apply to which of the following bodies:

  1. the Scottish Executive;
  2. the Ministry of Defence;
  3. Scottish National Heritage; or
  4. the Police Service ?

4. In which of the following circumstances is an authority NOT required to re-submit its publication scheme to the Commissioner for approval :

  1. if a new class of information is added;
  2. if an existing class of information is removed;
  3. if information within a publication scheme class changes; or
  4. if changes are made to a model scheme prepared by the Commissioner ?

5. The section 61 Code of Practice does NOT deal with which of the following :

  1. good practice in connection with keeping, management and destruction of records;
  2. transferring records to the Keeper of the Records of Scotland;
  3. reviewing records before they are transferred; or
  4. how to implement a model action plan ?

6. The Keeper of the Records of Scotland has specific powers under :

  1. the Data Protection Act 1998;
  2. the Freedom of Information (Scotland) Act 2002;
  3. the section 61 Code of Practice; or
  4. the Public Registers and Records (Scotland) Act 1948 ?

7. Requests for information under the Act can be made :

  1. only by UK residents or nationals;
  2. only by private individuals;
  3. by any person; or
  4. by any person provided that they are the subject of that information ?

8. If a public authority requests a fee :

  1. it does not have to respond to the information request until the fee is paid;
  2. it must respond to the request as soon as the fee notice is sent to the applicant;
  3. it must respond to the request 2 months after the fee notice is issued; or
  4. it must respond to the request within 20 days of the fee notice being sent?

9. An authority does not have to comply with a repeat or substantially similar request from the same applicant :

  1. unless one year has elapsed from the date of the first request;
  2. unless the applicant has lost the information provided;
  3. unless a reasonable interval has elapsed between requests; or
  4. unless a 60 fee is paid ?

Click here for answers

10.4 CASE STUDY

EQUALITY

The Act specifically states that an authority, when considering a request by an applicant to have information provided in a particular format, must consider its duties under the Disability Discrimination Act 1995 (duty to make adjustments to practices, policies, procedures or physical features so that use of services by disabled persons is facilitated or made possible.) A summary of this legislation will be set out in the section 60 Code. The section 60 Code will also provide advice on dealing with equality issues -

  • Be aware of disability issues and comply with the Disability Discrimination Act 1995
  • Be aware of responsibilities - statutory or otherwise - to groups with particular needs
  • Be flexible and interpret the definition of disability widely
  • Provide disabled applicants with information in the format they prefer other than in extreme or exceptional cases
  • Do not pass on the cost of responding in an alternative format
  • When disseminating information in an area with a high minority ethnic population, consider the need to translate the material
  • Consider accessibility to websites and the requirements of the World Wide Web Consortium's Web Accessibility Initiative

Equality - forget no-one

The following are a selection of issues that may be relevant when dealing with equality in delivering freedom of information.

Children

"All children are of equal worth, whatever their ability, colour, ethnicity, gender, health, religion, sexual orientation or social class" Children in Scotland

"Children have rights to protection, provision and participation in decisions affecting them, as outlined in the UN Convention on the Rights of the Child" Children in Scotland

The following are extracts from the Children in Scotland Citizenship in Practice report "What Matters to You" -

  • "My sister gets a letter and opens it herself. I get a letter and I don't get to open it - Young woman aged 16"
  • "An essential part of young people being able to exercise more control was people using language the young people understood and explaining what was going to happen."
  • "One particular theme What Matters to You? has emphatically highlighted is that young people want to take more control and more responsibility of their lives. On a small and large scale, young people identified how they would like more say and more influence over what happens to them. From experiences related by young people it would appear that it is often not their 'disability' that denies them this control but society and its attitude"

Homeless

"Every year thousands of individuals and families all over Scotland don't know what it is like to have the privacy, safety and comfort of somewhere to call 'home'." Shelter Scotland

"Approximately 404 people were sleeping rough on the streets of Scotland during October 2002, a decrease of 67 on the same period last year.

"In May 2001 the number of individuals that homelessness projects came into contact with was 500, whilst in October 2001 the figure was 471.

"These are people who will be sleeping in doorways, on park benches, in graveyards, in derelict buildings, below bridges and so on.

There are also a number of people who are homeless, but not recorded by councils or recorded in any other way. These are often called hidden homeless. They live in caravans, in the care of friends and family, or in poor quality, insecure private rented homes. No one knows how many there are." Shelter Scotland

Literacy

"In 1997, the OECD's International Adult Literacy Survey defined being literate as the ability to use printed and written information to function in society, to achieve one's goals and to develop one's knowledge and potential. The survey was based on identifying 5 levels of ability rather than a simple 'literate' / 'not literate' dichotomy and suggested over 20% of Scots are at the lowest level of literacy ability." Adult Literacies in Scotland

Disability

"Mental Health - The Facts

  • 1 in 4 Scots will experience a mental health problem at some point in their lives.
  • If it doesn't happen to you it will happen to someone you know.
  • A high level of stigma about mental health problems exists within Scottish society.
  • Stigma and discrimination are unjustified, unfair and can be illegal.
  • For some people, the stigma can be more distressing than the symptoms of their mental illness.
  • Over 80% of people with mental ill health make a full recovery.
  • Contrary to popular belief, the overwhelming majority of people with mental health problems are neither violent or dangerous." Penumbra

The following statistics are taken from the Scottish Executive statistics webpages -

"In 1996 in Scotland, 1.71% of the population was estimated as being visually impaired however only 0.66% of the population are registered as visually impaired (RNIB prevalence rates, 1997)."

"In 1999 in Scotland, 29 thousand people aged 65 and under and 67 thousand people aged over 65 were registered NHS wheelchair users (Disability Scotland). Information suggests that there are 14.5 thousand new wheelchair users every year (Scottish Wheelchair Service, compiled by Disability Scotland)."

"18% of people in Scotland are estimated to suffer from hearing loss (National Study of hearing, 1995)."

"In Scotland 193 thousand, 43 thousand and 235 thousand people receive incapacity benefit, severe disablement allowance and disability living allowance respectively (DSS Information Centre, 2000)."

Older people

The following statistics are taken from the Scottish Executive statistics webpages -

"In June 1999, 18% of Scotland's population were of pensionable age. Current projections suggest that by 2019, 23% of Scotland's population will be of pensionable age."

"In 1999 the expectation of life at birth was 73 for males and 78 for females. For those aged 65, the expectation was 14 additional years for men and 17 for women (General Register Office for Scotland)."

Other languages

The following statistics are taken from the Scottish Executive statistics webpages -

"In 1999, 1.6% of the Scottish population were from an ethnic minority. Over one third of Scottish people from ethnic minorities were from a Pakistani or Bangladeshi ethnic background (Labour Force Survey 1999)."

"The age profile of the ethnic minority population in Scotland is younger than the white population. 57% of the ethnic minority population were under 30 years old compared with 38% of the white population (Labour Force Survey 1998 & 1999)."

"98% of whites and 46% of non-whites living in Scotland were born in the United Kingdom. 24% of non-whites living in Scotland were born in Pakistan or India (1991 Scottish Census)."

"In Scotland employment rates for non-whites are lower than for whites: 48% and 71% respectively (Labour Force Survey 1998 & 1999). This difference is even more marked when looking at gender: 32% of non-white women were in employment compared with 68% of white women (Labour Force Survey 1998 & 1999)."

"19% of non-whites know who their local councillor is compared with 43% of whites (Scottish Household Survey 1999)."

Task

Review what you have learnt so far from the modules. Look through the self assessment questions that you have answered and consider whether there are any areas of the modules that you would benefit from rereading.

The information above and the tasks below should help you to think about issues such as rights of access, publication schemes and records management and dealing with and responding to requests.

1. For each of the categories set out above, consider what sort of information that your organisation has, if any, relating to these issues that it could make available or that it may receive requests for.

2. For each of these categories, think about what the duty to provide advice and assistance might mean and how advice and assistance might be provided. What additional considerations, if any, may be taken into account when providing advice and assistance to people with these particular needs?

3. Who else that comes into contact with your organisation may be in need of a higher level of advice and assistance?

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Page updated: Wednesday, April 5, 2006