Freedom of Information (Scotland)
Introduction:
In essence, all one has to do is to merely ask for the information. No explanation is required as to why you want that information or what you may want such information for. Scottish public authorities are under a legal obligation and duty in now responding to all information requests they receive. The information and/or replies must be received within 20 working days.
It is important to highlight that certain types of information can still be kept back. However, if this is the case you should be given those reasons in writing. If you are unhappy or dissatisfied with the reasons given, an individual has the right of appeal to the Independent Scottish Information Commissioner. In the event of the Commissioner finding that the public authority should provide you with that information, he can use his enforcement powers to make sure that information is received.
Freedom of Information laws are a common feature within many areas of the world including the US, Canada, Australia, New Zealand and Ireland.
Fundamentally, Freedom of Information is essential if the authorities are to be held to be openly accountable to the public they serve.
Guidance notes and information provided under Freedom of Information, and posted to this site, will be in accordance with the Law of Scotland.
Part 1:
On the 1 January 2005, individuals acquired new legal rights that entitles an individual to see information from Scottish public authorities.
An individual may want to exercise his or her rights in a number of ways such as why decisions affecting local services were made (such as in cutting back some services at your local hospital, or by enjoining primary schools) or, as to how public authorities decide who gets priority on waiting lists for services such as health and housing. The rights under the Act are wide and far reaching. Freedom of Information (FOI) also allows an individual to find out more definitively about the nature of contracts, under which a private company is 'providing a service' for a public authority, such as services provided under PFI/PPP. This might mean establishing, for example, charges involved or the conditions being applied for that private company to provide the services they are under contract to provide. Freedom of Information holds public authorities to openly account for their decisions.
It will not always be the case in having to make special requests under the Act. Public authorities in Scotland readily make available information through their advertising and publication schemes. Such schemes are designed in making it easier for an individual to find information that has been published by a local authority without having to make a request under FOI. Anomalies can, and do arise - such as why the standards across public authorities in Scotland vary so much? Again, where you are dissatisfied with any reasons given as to why certain types of information is being withheld in certain circumstances, the point of redress is through the Independent Commissioner in Scotland. No legal person or any other body with judicial powers has the right in preventing you from receiving the information you are reasonably seeking. If you do find this to be the case I would recommend you take up matters either with the Law Society in Scotland or by writing to your local court. If you do take this route, make sure you keep together all previous communications lodged. Remember too, that the law states that public authorities are legally obliged to provide information requests within 20-days. This is a prescriptive time period under the law and must be observed. It is advisable, in the first instance, to use proper protocol of address and contact. Due processes are an active part when, for example, an individual has been denied certain types of information, legally. Freedom of Information is a legislative Act of law and thus opens-up issues of interpretation. Being laughed at, denounced or manipulated will not work either. If you find this to be the case keep a full written record of such occurrences and report it through the appropriate channels, immediately.
An individual can request to see any kind of recorded information from a Scottish public authority, however antiquated that information is. This includes information recorded on paper, computer files including e-mails, video and archived records held on microfiche. During the course of this article I will appropriately detail to which organisations and institutions are deemed 'Scottish public authorities'.
Ladies and gentlemen, the remit underpinning Freedom of Information is certainly very wide. My approach here is in detailing, quite specifically, practical examples of the types of information that individuals have a legal right to see. In addition, the writer would advise readers and viewers to this site, that individuals have the right to see and inspect information held about oneself under the Data Protection Act 1998. It will be the intention of the blog author by detailing, within an appendix to this article, certain authoritative sources on where and how individuals can access such personal information.
As with all Acts of Parliament certain exemptions will, invariably, be found within the Freedom of Information legislation. Access, for instance, to some information will undoubtedly be limited. However, as described, the process of legal redress should always be considered as a counter-measure if an individual deems such reasons given as being unreasonable or unjustifiably withheld. The Commissioner in Scotland has a wide range of powers to enforce individual rights under the Act. An individual is perfectly within his or her rights by pursuing to a satisfactory conclusion any impending referral applications.
Ladies and gentlemen, I do not like errors, convoluted or ambiguous replies or, for that matter, broken and poorly written use of the English language. Neither do I accept inexcusable ignorance and incompetence from some people who by definition are deemed professionally competent and fit for purpose.
A request under FOI for details in showing whether public authority policies are working well has become one of the most commonest requests since the Act came into force. Community policing, for instance, can be examined in how effective police forces are, throughout Scotland, in combating crime. For example, if any complaints had been made previously - what actions were taken as a result of those complaints? Similarly, information can also reveal whether a 'contract-for-service' is providing value for money. For instance, what standards were agreed upon with agencies contracted to supply hospital catering or hygiene services? Is the taxpayer receiving value for money?
Part 2:
Environmental information:
The Freedom of Information (Scotland) Act does not directly apply to environmental information and concerns. Any request made under FOI, for environmental information, will therefore be rejected. However, the Environmental Information (Scotland) Regulations 2004 does give similar rights. It is important in applying relevant legislature when wishing to pursue an application for environmental information. As readers might suspect, the author of this site has made repeated claims for certain types of information held by certain local authorities throughout Scotland.
Typically, examples of requests under the provisions include trials that have or are being conducted on genetically modified crops, the location and reasons as to why so many mobile masts are erected throughout Scotland and the plans for either downgrading or upgrading landfill sites. This is not an exhaustive list but merely examples of information that can become available on request.
The main benefit of the Environmental Information (Scotland) Regulations 2004 is that the stipulations under the guidelines apply to a wider range of organisations than FOI permits. Administrative procedures for acquiring information for environmental purposes is a different process to that of requests made under FOI. The regulations are extremely broad in context, but the law does stipulate, similarly, that information is provided ... "as soon as possible". In many cases, this has been provided within the 20-day rule. If an individual or organisation has made a complex request involving large amounts of material, the organisation holding such information is allowed up to a period of 40-days in providing that information. If this is to be the case, the organisation should provide written details within 20-days to let you know of the longer time period needed in collating that information.
In due course, the author of this site will be making a request for information from a well known housing association, within the area of my own domicile. I expect full cooperation as in accordance with the conditions laid down under the 2004 Regulations.
Part 3:
People living in Scotland also have a general right to information held by UK public authorities under separate UK laws. These 'public authorities' include government departments and related agencies for matters NOT devolved under the Devolution (Scotland) settlement. Areas include having access to information concerning UK foreign policy, UK defence and national security and a right exists for access to information relating to the economic and monetary system in the United Kingdom.
Ladies and gentlemen, never be put off asking for information just because you may be unsure whether your rights of access are from a Scottish public authority or from within a UK public authority context. The fundamental principle underpinning Freedom of Information laws is that you have a general right to receive the information you ask for. When making such requests the public authority concerned - whether it is based in Scotland or elsewhere throughout the UK - has a legal duty in assisting that individual to receive the level of information they are seeking. If you are advised to the contrary it is an offence at law and matters then, if arising, should be promptly reported. Freedom of Information is an Act of Parliament, not an embellishment for secrecy or improper disclosure. Moreover, the type of information an individual is seeking must be answered.
In most cases, the rights to information throughout other parts of the UK are quite similar to those afforded by the Freedom of Information (Scotland) Act. There are some differences such as the way that fees and charges are levied in providing information under FOI requests. Most requests however, should be dealt with free of charge. Where a levy is applied it will likely be a small charge. Where agricultural infringements have occurred, for instance, information becoming available under FOI is important in preventing any such practices from continuing and, by giving adequate public exposure in connection with such activities. Any charges incurred will, in the long run, have a far more beneficial outcome than the small and marginal costs incurred. Consider, for example, the interests of public health.
When pursuing information under FOI you may wish also to submit your own evidence - perhaps in the form of exhibits and photographic displays - that will, as a matter of process, help an individual receive the additional information they are seeking. The law requires, as previously stated, that a request for information under FOI must be received within 20-days, for more complex cases within a 40-day time period. Where information received is deemed unsatisfactory an individual has a right of redress to the Independent Commissioner in Scotland.
Part 4:
Making a Request for information:
Whether you are resident within Scotland, or anywhere else in the world, an individual may request information held by a Scottish public authority.
The request must be in writing or ... "any other form that can be kept for future use, such as electronic mail, fax, audio or video tape".
You do not have to say you are exercising your rights under FOI or give any reasons for asking. If you are challanged to do so the circumstances surrounding such probing should be reported.
If you do not provide enough detail to allow the authority to identify the information you are seeking, or if your request is unclear or ambigious in some way, the public authority is perfectly entitled to ask you to either be more specific or by asking you to supply more details in terms of your request. The wording of such requests should, as far as is possible, be made with the correct use of written English language. Likewise, the replies you receive should, similarly, be reciprocated on similar terms. If it isn't, and the public authority concerned is unwilling to clarify details to your satisfaction then an individual should seek assistance from the Independent Commissioner in Scotland. Public authorities do not make the law, they administer many parts of it.
If you are not sure exactly what information you want the public authority concerned should help you describe the information you are looking for more clearly and in more detail. In general terms, and from my own experiences, public authority staffs do help by describing some of the different kinds of information available, which, invariably, can help. If the authority does not have the information you have asked for, you should request, in writing, that such details are outwith the scope of that particular authority. In some circumstances, staff may be able to direct you to another authority which could provide the information. However, improper and incomplete disclosures should not be accepted. If you suspect this to be the case, with good cause, matters should be referred to the Commissioner.
When requesting information under FOI it will certainly help if the applicant has done some thorough research before an application or referral is made. Some of the requests will, unquestionably, require a thorough understanding of what the implications of certain actions entail. This is particularly true within the field of environmental science in relation to the many changing laws and stricter codes of practice. Freedom of information allows for the improvement of practices locally, as well as nationally. What you say, or provide, particularly under the referral process, will likely be used by the Commissioner in the future. Because of this an individual should approach requests in a methodical and fastidious manner. It is important to bear in mind that any encroachments made could, very well, be referenced by the internal authorities. Do not remain ignorant on this point.
The authorities do have a duty to help you if you have difficulty making your request such as when an individual may find it hard to write an accurate description of the information they are seeking. If an individual has a disability, for example, staff can help by taking a note of your request over the telephone and then sending the note to you for confirmation, with a stamped addressed return envelope. Moreover, and more usefully, public authority staffs could also offer to tape-record your request over the telephone or over the counter, or suggest that you tape your request and send it in. In the writers opinion, this is an excellent approach to matters. Such recordings are held to be similarly binding as is with written lodgements.
Part 5:
Exempted information under the Freedom of Information (Scotland) Act:
Ladies and gentlemen, as previously written, an individual has a general right to see and inspect all recorded information held by Scottish public authorities. In certain circumstances, however, information may be held from the applicant seeking such information because it is simply deemed 'exempt' from inclusion within the FOI (Scotland) Act.
If the authority you apply to decides to withhold information from an individual, it must justify why it thinks the information is exempt from your general right to receive it. An individual should never be put off applying just because you might perceive that information being exempt. Even if the information falls within one of the exemptions in the Act, the public authority concerned may still be willing to let you have all or a segment of it.
As would be expected, some categories of information are completely excluded from your rights of access, such as documents prepared for court cases. In most instances however, Scottish courts are open to the public including High Court trials that may appear within an individuals Sheriffdom, from time to time. Attending a High Court trial, even when listening to proceedings from within the public gallery, can be an enlightening experience. Understanding the legal infrastructures and how justice is dispensed is as much your right as it is mine. It is also important, I believe, in seeing how courts and officials - such as the defence and prosecution - and how the Judge will instruct in certain circumstances. It is not uncommon, in my experience, to share conversation with some very senior counsel outside the remit of the court chamber and within the corridors of the main court house. This is particularly true when one has shown a close interest within a long running trial. I have known trials when the defence and prosecution have been submitting their closing statements and the Judge has ordered the doors of the court to be shut. Again, even in these situations, the right to listen and be present in those circumstances was apparently my democratic right.
Information held by public authorities in Scotland is certainly categorised. Information may be exempt where the authority can prove there would be a real and significant chance of either damaging that public authority or harm could come to other people if that information were made public. Where the public authority deems this to be the case it will call this "substantial prejudice" in its corrospondance with you. This may include information which is deemed by the public authority to be commercially valuable or information that is confidential. However, your rights of redress to the Independent Commissioner in Scotland - for reasons which you might deem as being unreasonably withheld - should always be remembered. The Commissioner in Scotland will act for an individual where those rights have been unreasonably violated and where information has been withheld without just cause.
Ladies and gentlemen, exemptions under the Act are not simply cut and dry. For example, when deciding to provide information that may be covered by one of these exemptions, the authority must consider whether it would be in the "public interest" for that particular information to be made public. This means, quite simply, that if the benefit to the public is going to be greater than the harm to the authority or other people affected, the authority *must* release the information.
Freedom of Information is an Act of Parliament that previously received Royal Assent. Where you may have a point of 'interpretation' on any legal matter arising throughout that Act or within the 2004 Environmental Regulations, and you deem any information being unreasonably withheld, again, your right exists to challange such a decision directly with the Commissioner. Where you are advised otherwise, should be promptly reported.
In deciding whether it is in the 'public interest' to provide information, authorities should NOT take into account various considerations. These include the possibility of embarrassment to officials, any possible loss in the confidence of the authority, the seniority of the people involved or any risk that an individual may misinterpret the information if it came to hand. The purpose of Freedom of Information is, in no way, related to such safeguards.
Part 6:
Fees Notice:
This is a notice that shows and indicates the estimated fee and how it has been calculated. A fees notice should also highlight how you can complain about the fee and how to appeal against it.
In deducing the fee, the authority is entitled to charge for various components of work they have undertaken in compiling the reports and information. This can include the level of staff time to find, research and gather the information and public authorities are authorised to charge up to £15 per hour for such time. In addition, charges can also be levied for photocopying or by making available the information in a differing format.
Charges must be reasonable. If an authority normally charges say, 10 pence a page for photocopying, charging any more than that would not be reasonable. If it provides the information on a compact disc, a flash drive or any other medium of your choosing, it can only charge the individual the cost of buying that device.
Specifically, an authority is not permitted to charge an individual for staff time or any other associated costs when deciding if it has the information or if the authority wishes to claim the information is restricted in terms of being exempted. Public authorities are not makers of the law but administer it according to their interpretation. Where an individual may differ on grounds of interpretation you should take your concerns to the Commissioner in Scotland.
A public authority cannot increase the fee if the actual cost turns out to be in excess of the estimation given in the fees notice. If the cost turns out to be less than was originally estimated, the authority should consider refunding any overpayment you have made.
The public authority will require payment, if a fee is set, before it will provide the information an individual is seeking. The public authority is under no obligation in sending you the information - if a fee has been set - and you decide not to pay it. Fees, where applicable, should be paid within 3-months of the date on the fees notice otherwise the authority is not legally obliged in dealing with the request previously made.
Freedom of Information is a powerful piece of legislation that allows applicants wide ranging access to information that was not previously available. For instance, are people who they say they are? Are people and organisations really doing what they publicly state as being fundamental to their core objectives? Anecdotal evidence is highlighting, that this is not necessarily the case.
Utilise Freedom of Information in the spirit by which it was devised.
Part 7:
...
© Copyright MarkDowe, 2007: all rights protected
