In publishing, the Commissioner Daren Fitzhenry said:
“I am publishing my Annual Report at a time dominated by the Covid-19 pandemic. While freedom of information in Scotland has certainly not been immune from the impact of the pandemic, the importance of the right to information is one clear constant.
“Inevitably we all have questions about the decisions being made by our governments and public services. Never more so than at a time when those decisions, sadly, may mean the difference between life and death.
“This is why it is so vital that Scotland’s law ensures everyone has a right to seek information from public authorities and – with only very few, limited exceptions – to receive it.”
Key statistics from the report include:
79,300 FOI requests were made to Scottish public bodies during the year. 12.6% of these were for environmental information (an increase from 10.3% in 2018-19)
76% of requests to Scottish public authorities resulted in full or partial disclosure of information to the requester (an increase from 75% in 2018-19)
251 interventions regarding authority practice improvements were carried out by the Commissioner (compared to 252 in 2018-19 and 234 in 2017-18)
There were 494 appeals made to the Commissioner (0.6% of total requests made to Scottish public bodies). 75% of appeals were made by members of the public.
On average, cases appealed to the Commissioner were closed within 3.4 months
23% of valid appeals to the Commissioner related to an authority’s failure to respond
67% of the Commissioner’s decisions found wholly or partially in favour of the requester (an increase from 65% in 2018-19)
Please note that this annual report covers the period 1 April 2019 – 31 March 2020. The Commissioner will publish an initial insights briefing specifically examining the impact of the Covid-19 on FOI in Scotland later in 2020.
Our most popular FOISA course will take place online in November. Click here for details.
According to the report, Scottish public bodies are receiving record numbers of FOISA requests. 83,963 requests were reported by them in the year 2018/19; a rise of 8% on the year before. Three quarters of these requests led to a full or partial release of information.
The number of appeals made to the Scottish Information Commissioner alsoincreased; by 10% to 560, still just 0.7% of all requests made. Just under two thirds of the Commissioner’s appeal decisions (64%) were either fully or partially in favour of the requester.
Scottish public authorities must respond promptly to FOISA requests and no later than 20 working days.However, the report shows that they are are increasingly failing to comply with this requirement. The number of times an authority failed to respond to an FOI request rose from 601 in 2017/8 to 940 in 2018/19. 26% of valid appeals to the Commissioner were about an authority’s failure to respond.
The Commissioner has responded to this failure to comply with the FOISA time limits by making more than 250 interventions over the course of the year. A third (33%) of his basic interventions investigated authorities’ compliance with statutory timescales. Often these failures can be indications of other fundamental problems, such as FOISA management and culture issues, staff absences or procedures not working well.
A poll of Scottish adults, conducted in May 2019, found disappointing levels of confidence in public bodies’ ability to respond to requests, which were much lower than the actual performance in practice. 57% of those surveyed were “very” or “fairly confident” they would receive a response from a request to information from a public body.38% were “not very” or “not at all confident” they would receive a response.Any increases in authorities’ failures to respond are likely to feed this perception.
FOISA requires authorities to publish information as well as respond to requests. According to the above mentioned poll, 9 in 10 people in Scotland thought it was important for public bodies to publish information about the reasons for the decisions they make, information about contracts with other organisations and information about how they spend their money.
The Commissioner is using the opportunity of his annual report to emphasise the need for authorities to do more to improve their FOISA compliance. He said on his website:
“We are seeing increasing numbers of information requests being made to Scottish public authorities.
While many are performing well, there has been a concerning increase in failures to respond to requests for information on time. Such failures impact on people’s perception of both freedom of information and the authorities themselves.
Freedom of Information brings significant benefits to authorities who comply with it. Public bodies improving their Freedom of Information practice will make a real difference not only to the requester’s experience but also to the authorities themselves.”
It’s going to be a busy year ahead for FOISA. The Scottish Parliament’s is due to complete its post-legislative scrutiny of the Act soon. This may lead to legislative changes. From 11 November 2019, registered social landlords (RSLs) in Scotland will become subject to FOISA.
The Public Records (Scotland) Act 2011 (PRSA 2011) requires public bodies in Scotland to develop a Records Management Plan and submit it for the approval of the Keeper of the Records of Scotland. Many of these plans, usually approved on a five year basis, are now approaching the time when they will need to be revised and put through the approval process once again. Moreover, the Keeper’s team have been actively revising their “Model Plan” and will be expecting more from authorities on the submission of their new plans over the next couple of years.
The PRSA 2011 received Royal Assent on 20 April 2011, aiming to fill a gap in information governance which had long existed. Although there had been some sector specific records requirements there was no overall legislative framework guiding the creation, management or retention of information in the Scottish public sector.
The Act came in on the back of the 2007 Shaw Report which blamed poor record keeping for many of the difficulties faced by former residents of residential schools and children’s homes. The Scottish Government took a broad view of the implications of Shaw; this in turn led to the PRSA covering a broad range of named public authorities including the Scottish Government and Parliament, local authorities, NHS, police and the courts.
Despite concerns, strongly expressed at the time by COSLA among others, that the Act would present yet another onerous burden during a period of particularly harsh austerity, it is probably fair to say that the PRSA has been a success, giving Scotland a solid statutory basis for its record keeping for the first time.
Records Management Plans
The core of the Act is the requirement to develop and maintain a Records Management Plan. This, in theory, can take any form but in practice authorities have tended to closely follow the Keeper’s “Model” comprising (originally) 14 elements:
Senior management responsibility
Records manager responsibility
Records management policy statement
Archiving and transfer arrangements
Business continuity and vital records
Competency framework for records management staff
Assessment and review
One significant change to the way that the Keeper will be assessing authorities’ Records Management Plans is that there is now an “Element 15” in the Model Plan, covering third party records. S2 and S3 of the Public Records (Scotland) Act always defined the scope of the legislation broadly so as to cover the records of external agencies carrying out functions on behalf of the public authority, but that is now going to be more explicitly defined and the Keeper will expect to see evidence of policies and procedures under this “Element 15”.
The Keeper is currently undertaking a review of these requirements so it is as yet unclear exactly what will be required. The issue was covered in some detail at the Stakeholders’ forums which the Keeper hosted last year, and there is some guidance and model contractual clauses available from the National Records of Scotland, and from the Scottish Council on Archives and Quality Scotland.
Another significant change in the Keeper’s approach to what will be required from Records Management Plans is a general refocussing on data protection. This had always featured in the Model Plan with element 9 dedicated to the appropriate management of personal data but now data protection runs through the Keeper’s guidance like the writing through a stick of rock. As well as beefing up element 9, each section of the Keeper’s guidance now includes a data protection theme as an example of good practice.
The scope of the PRSA continues to broaden. The Keeper is currently going through the approval process of the Integrated Joint Boards, and (as with Freedom of Information?) there will be pressure to extend the list of bodies covered by the Act. The position of Trusts and some other arms-length authorities remains unclear but all organisations of a public nature would be well advised to get up to speed with the requirements of the Public Records (Scotland) Act 2011.
Throughout the process of the passage of the Bill, the Keeper always made a commitment to use the carrot rather than the stick. This has worked well, with the very helpful team at the NRS providing support and guidance on a range of records issues. As the records environment matures, however, and as more is expected of authorities, might we see a more robust approach from the regulator? In retrospect, some of the early schemes which the Keeper approved now look somewhat thin; it may be unlikely that these would have passed had they been submitted today.
Act Now has arranged a series of webinars and full day workshops on the themes raised by the developments within the PRSA. Among other issues, we will be looking at:
Records Management Policies. Some authorities conflate “policy” and “Plan”. I’d suggest a clear separation, with the Policy simply summarising the case for records management, allocating responsibilities, defining terms and setting out key principles. This element of the plan can also be used to include area-specific policies and procedures which perhaps don’t fit neatly elsewhere.
We’ll consider the standards and resources available. What are the standards that you need to know about? In developing or amending your plan, how far can you rely on off-the-shelf resources such as business classification schemes and retention schedules? What do you have to do to make these really work for you?
The Keeper has a self-review mechanism for already established Records Management Plans. The “Progress Update Review” mechanism is available and the Keeper has suggested that completing this process will delay the requirement for a full resubmission of your Plan. But what factors should be considered in deciding when to use the PUR and when to complete a full resubmission?
Links to other relevant legislation. In particular, the GDPR, the Data Protection Act 2018 and the Freedom of Information (Scotland) Act 2004. As noted above, the start of the review of the model scheme was at the same time as the implementation of the GDPR and this seems to have very much focussed the Keeper’s attention on data protection. What will authorities need to do to ensure that their RMPs are up to speed with the new DP requirements?
Electronic Records Management. In theory, records principles are blind to the media by which the information is created, stored and managed. In practice, however, the Records Management Plan can be an excellent focus to develop and promote policies and practical guidance which relates specifically to information in alternative media.
Getting “buy in”. We will consider the best ways to get support for the Records Management Plan within your organisation. It is important that you are able to show the benefits of good records management – and not just in terms of statutory compliance or improved efficiency. By developing a culture of regarding information as a corporate asset you be able to demonstrate that records management is vital in evidencing the rights and responsibilities of the organisation and in maintaining a high quality corporate memory through the development of a proper archive service.
Making it real. The RMP should not just be a paper exercise but should be a functioning set of tools which ensure that the organisation derives maximum value from its information resources. To be of real value, the Plan needs to be embedded throughout the organisation, rather than just a neat stack of policies on a corner of the Chief Executive’s desk.
Craig Geddes is a qualified archivist and records manager, with 28 years’ experience working across the range of information governance activities. He has recently joined the Act Now team to deliver freedom of information and records management courses in Scotland.
Steven holds accredited trainer status from the British Computer Society, PECB and APMG. He is also accredited under the GCHQ Certified Trainer scheme, delivering training in the areas of Cyber Security, Information Security, Data Protection, Business Continuity Management, Audit, Risk Management and Business Continuity Management. Steven has assisted over 30 organisations to become certified to international best practice information security frameworks including the UK Government Cyber Essentials Scheme, ISO 27001 and ISO 22301.
Act Now has been running a full programme of information governance workshops in Scotland for many years. We have boosted our team of Scottish consultants by engaging Craig Geddes who is a qualified archivist and records manager, with 28 years of experience working across the range of information governance activities. He has worked for several Scottish local authorities as Archivist, Records Manager, and Senior Information and Improvement Officer. Craig has developed and delivered training on records management, freedom of information and data protection for a number of years, and is an engaging and entertaining speaker. Craig will help deliver our current Scottish courses, both in house and external, and develop new ones such as the recently launched Public Records (Scotland) Act Now workshop.
Act Now’s portfolio of clients includes many health organisations. With a view to delivering more health focused information governance courses, Barry Moult has joined our team. Barry is a well know IG expert with many years of experience working with and advising NHS organisations. He founded and has chaired the Eastern Region IG Forum since 2003. Until August 2018, Barry was the Chair of the NHS National Strategical Information Governance Network (SIGN) group and continues to sit on the NHS GDPR working group. Prior to that, he was Head of IG and Health Records at two large NHS Acute Trusts and was recently on a secondment to a local STP looking at information sharing and GDPR for Health and Social Care.
Barry will be delivering our health focused workshops on GDPR and the role of SIROs. Barry has also developed a new workshop for Caldicott Guardians to help them understand and apply the Caldicott Principles and the common law duty of confidentiality in a Health and Social Care setting. He will also look at the legislative requirements (e.g. GDPR) how they apply to patients’ records and what to consider when making moral and ethical decisions. There will also be discussion around how the Caldicott Guardian interacts with the Information Governance Lead, the Data Protection Officer and the Senior Information Risk Owner (SIRO).
The latest recruits boost the number of Act Now consultants to thirteen. Ibrahim Hasan, solicitor and director of Act Now Training, said:
“I am pleased that Steven, Craig and Barry have joined our wonderful team of consultants who all have a reputation for explaining difficult subjects in a simple jargon-free way. Their knowledge of information rights coupled with real world experience will help us expand our services and deliver even more courses to our rapidly expanding client base.”
The social housing sector already prides itself on being open and accountable to tenants. But from 11 November 2019, registered social landlords (RSLs) in Scotland will acquire new transparency obligations under the Freedom of Information (Scotland) Act 2002 (FOISA).
After years of debate and the robust recommendation of successive Scottish Information Commissioners, that housing associations should be in scope of FOISA, a designation order (under Section 5) adds RSLs to the list of public authorities in Schedule 1 of FOISA. The last such order (S.I. 2016/139) came into force on 2ndMarch 2016and extended coverage of FOISA to contractors overseeing and managing private prisons, bodies providing secure accommodation for children and young people, grant-aided schools, independent special schools and Scottish Health Innovations Limited.
Housing associations are already subject to the Environmental Information (Scotland) Regulations 2004 (EISR) as their scope is broader than FOISA. However, awareness of the EISR is low among the public, and even some housing associations were probably unaware of them. Many of the types of requests which RSLs are likely to receive – around construction and repairs for example – will continue to fall under the EISRs.
Unlike other Scottish public authorities, the scope of FOISA does not apply to all the activities that an RSL may undertake. The designation order only extends FOISA to “housing services” as defined in the Housing (Scotland) Act 2010, which would include activities in support of:
the prevention and alleviation of homelessness,
the management of housing accommodation (but only where RSL has issued a Scottish secure tenancy or short SST)
the provision and management of sites for gypsies and travellers
Other activities undertaken by RSLs – such as factoring for owner-occupiers, repairs and maintenance for non-tenants and care services – would not be in scope. Identifying how much of the organisation is subject to FOISA will be an ongoing challenge for RSLs.
And there is a double whammy for RSLs. Under section 7 of the Data Protection Act 2018, schedule 1 of FOISA is the basis in Scotland for designating public authorities under GDPR. Therefore, from November, RSLs will be subject to the obligation, under Article 38 and 39 of GDPR, to designate and provide appropriate support for a Data Protection Officer. While many larger RSLs have already done so, this is going to be a challenge to resource for smaller associations.
So, in preparation for November, RSLs should “Act Now” to:
Gain senior management support and buy-in for the compliance tasks;
Develop procedures and guidance for staff, including a log for tracking requests and templates for responses;
Ensure training is in place: Specific compliance training for DPOs and FOI leads and awareness training for all staff;
Review records management procedures to ensure appropriate retention periods are applied and records are retrievable;
Inform tenants and the wider public of their rights, including having a guide to information on their website.
Our FOISA expert, Frank Rankin, is delivering a free webinar for RSLs in Scotland to bring them up to speed with FOISA and what they need to do now before the implementation date. Book now as places are limited.
Erin Ferguson examines the Scottish Information Commissioner’s special report…
Freedom of information (FOI) legislation has recently celebrated its tenth anniversary in the United Kingdom. Overall, the UK FOI regime has been deemed successful. 400,000 requests for information have been made in the past ten years, leading to some notable disclosures and helping to establish a greater culture of transparency in public services.
Nevertheless, the Scottish Information Commissioner Rosemary Agnew recently warned that the scope of FOI in Scotland (under the Freedom of Information (Scotland) Act 2002) has reduced and that people now have less access to information than they did a decade ago.
On 19 January Agnew published a special report entitled “FOI 10 Years On: Are the Right Organisations Covered?” The report is limited to the Scottish experience, but addresses a challenge faced throughout the UK. That is, how can FOI obligations be extended to cover the wide range of organisations that now have responsibility for public service delivery?
Agnew called the introduction and implementation of the FOI Act one of Scotland’s “major success stories,” but warned that changes in public service delivery are eroding information access rights. As functions are outsourced or transferred to arm’s-length organisations, they no longer fall within the scope of the FOI Act. The transfer of social housing, for example, from local authorities to housing associations means that 15,000 households in Scotland have now lost information access rights. This affects not only access to information, but also access to justice. The loss of appeal rights to the Scottish Information Commissioner means that the public are faced with the more costly option of appealing through the courts. It is clear that FOI plays an important role in encouraging transparency and promoting civic engagement, so how can this be preserved?
The report noted that the FOI Act was introduced with the intention of extending coverage to additional bodies. A Section 5 Order allows Ministers to designate additional organisations as public bodies, but Agnew reported that this mechanism has been ‘woefully underused.’ Ministers have only exercised these powers on a handful of occasions (e.g. on 1st April 2014), and whilst it is difficult to say why they have not made greater use of this mechanism, the report speculated that lack of political will and misunderstandings over what constitute a public function might be among the reasons. Therefore, Ministers will need support in order to make greater use of the Section 5 Order.
Whereas previous debates on whether to extend FOI coverage have focused too narrowly on the structure of institutions and how they are funded, greater consideration should be given to the nature of the functions performed. As it is ultimately up to the Ministers to decide what constitutes a function of a public nature, a factor based approach can help to determine whether an organisation should be designated a public body for FOI purposes. Factors would include whether the organisation is taking the place of a public authority in carrying out a particular function and whether the functions are derived from or underpinned by statute. (A full list of factors can be found on p.18 of the report.)
The factor based approach would make the designation of additional bodies more open and transparent, and might also help to alleviate some of the challenges that have arisen from extending FOI coverage. Academies and Free Schools, for example, were brought in under the UK FOI Act in 2010. Since then, there have been some notable releases of information, but also some well-known instances in which information has been withheld, leading to lengthy appeals. The Department for Education (DfE) has withheld information on free school applications, relying on exemptions under Section 35 (information related to formulation of government policy) and Section 43 (information likely to prejudice the commercial interests of any party) to withhold information. Although this is merely one example and should not be understood of evidence of a widespread phenomenon, it does demonstrate that a tension remains when balancing the public interest in disclosure against the public interest in withholding information. Will extending FOI coverage to additional bodies simply lead to greater use of exemptions? Or will the factor based approach help to clarify which functions should be covered and why?
There is no straightforward answer to these questions, but the report suggested that support for newly designated bodies can help to ensure smoother implementation. Likewise, the public will need support as the gaps and inconsistencies created by changing models of service delivery has led to some confusion over which rights they hold. After all, as page 9 of the report says, ‘the existence of a right is one thing; making it straightforward to use is something else entirely.’
“(a) appear to the Scottish Ministers to exercise functions of a public nature; or
(b) are providing, under a contract made with a Scottish public authority, any service whose provision is a function of that authority.”
The new order extends FOISA to organisations created by councils to delivering leisure and sporting facilities. More precisely, in the words of the order, bodies:
“(a) established or created solely by one or more local authorities;
(b) whose functions on behalf of any of those authorities include developing and/or delivering recreational, sporting, cultural or social facilities and activities; and
c) which in carrying out those functions is financed wholly or in part by any of those authorities”
There is no legally definitive list of additional bodies, which will become subject to FOISA under the S.5 order on 1st April. It is for each organisation to satisfy itself if it meets these conditions.
Contractors operating and maintaining trunk roads under private finance contracts
The Glasgow Housing Association (GHA)
The Association of Chief Police Officers in Scotland (ACPOS)
Bodies created by local authorities to provide leisure, culture and sport services
Interesting how the Scottish Government decided not to make contractors subject to FOISA. In the rest of the UK, the debate on this issue has been reignited recently. The Government has once again flip flopped and mixed messages have come out about contractors being made subject to the Freedom of Information Act 2000 (FO)).
Initially there was talk of extension of FOI to the private sector. Now it is about extension of FOI through a new code of practice. This will be the subject of one of two new consultations announced recently.
It remains to be seen who will be the first to say yes to more openness and transparency for the private sector!
Act Now Training has now designed a new certificated course; the Practitioner Certificate in the Freedom of Information (Scotland) Act 2002. The course is endorsed by the Centre for FOI based at Dundee University.