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An Open Scotland
Scottish Executive's consultation paper
UNISON Scotland Response
UNISON Scotland welcomes the opportunity to comment on the Scottish
Executive's consultation document An Open Scotland.
With 140,000+ members working for Scottish public services UNISON
has a clear membership interest in the wider availability of information
on how decisions are made in the public services, and how that information
is kept, stored and accessed.
In addition our members are citizens and have an interest in the
best governance of Scotland.
UNISON believes in the broadest possible dissemination of information
and that a better-informed citizenship serves to improve government.
It allows people to have their say on how their services are provided
from a background of accurate information.
We therefore welcome the Scottish Executive's commitment to open
government and the provision of the distinctively Scottish proposals
to legislate on public access to information about their public
services. We have some suggestions for the improvement of the document,
however. Our comments are laid out below.
Purpose of Legislation
We feel that the legislation requires a clear clause defining its
purpose. This should be inserted at the beginning of the legislation.
Such a clause is common in Freedom of Information legislation elsewhere
in Europe and assists when legal questions arise as to interpretation
of the legislation. A clause dealing with the necessity of openness
in the provision of public services and governance to ensure proper
democratic accountability and informed decision taking is needed.
A possible basis is the Ministers final two sentences in the first
para of his foreword.
In addition to the statement of principles defining the purpose,
we recommend that openness itself, should be asserted as a general
principle, in some such terms as those of the Treaty of Amsterdam
(Art. 255), which provides that "Any citizen of the Union...shall
have a right of access to European Parliament, Council and Commission
documents, subject to the principles and conditions to be defined..."
We would also argue for the 'purpose' to include the need for all
public services covered by the authority of Scottish Parliament
to be included - however they are delivered (See
also comments on Chapter 2)
1. Introduction (pp 9-12)
1.5 Policy Background
UNISON suggests that clarification be added to this paragraph
to deal with the position of solely Scottish arms of UK bodies (eg
the Scottish Committee of the Council on Tribunals).
Such bodies should be covered by the Scottish legislation. Otherwise
we would have, for example, the NHS Disciplinary Committees included
in the legislation and the body that monitors them excluded.
1.13 Personal Information
As stated here, the right of access to information held on them
by an outside authority is one of the most widely used rights under
Freedom of Information legislation. It is therefore regrettable
that confusion appears to be introduced by the introduction of the
position of the Data Protection legislation and its role in UK legislation.
This matter is discussed further in Chapter 5.
2 A Right of Access
2.2 Principles of Openness
UNISON supports the principle of 'presumption of openness', and
the provision of a 'harm' test to assess the withholding of information.
We also agree that the public interest should be the vital consideration
when assessing the possible withholding of information. We fail
to see the need therefore, for class based exemptions. This is discussed
in our response to Chapter 4.
2.4 Scope of the statutory regime
UNISON wants to see the boundaries of the Scottish Freedom of Information
regime set as widely as possible and agrees with the principle set
out in this paragraph that all Scottish public services and public
service providers should be the key bodies covered. This should
include private sector providers of public services and also other
bodies in receipt of public funds to provide services to the public.
This would therefore include - in addition to the 'services performed
by contractors working for Scottish public authorities' - services
provided under the Private Finance Initiative, Public Private Partnerships
and other joint working arrangements; other public services provided
by private suppliers - private schools; private hospitals; private
residential care etc; and services provided by voluntary organisations
and charitable trusts.
We would like to see, as well as an inclusive list of organisations,
a clause added to the legislation to clarify that it is intended
to include service providers.
Eg 'The legislation will cover all Scottish public authorities and
public service providers including all these providing health care,
local services; education; protective services; utilities; housing;
social care; leisure and cultural services; legal services; etc.
the providers of these services will be covered by the legislation
however they are run - or organised - by public sector, voluntary
sector, charitable trust or private sector.'
Annex A - Whilst it is recognised that this list is purely
illustrative at this stage, it contains some glaring omissions.
Scottish Enterprise, Highlands and Islands Enterprise and Scottish
Homes are included but their 'local' arms - Local Enterprise Companies
and Housing Associations - are not. Strathclyde Passenger Transport
Authority is not included, and very importantly doctors and dentists
- either as individual General Practitioners or in group practices
- are not included and neither are other services run by GP's (eg
emergency out-of-hours call centres). Other organisations not clearly
mentioned include:
- Local Government Joint Boards and Valuation Boards,
- Local Health Co-operatives,
- Local Area Tourist Boards,
- Prison Visiting Committees,
There will no doubt be other obvious groups, some of which will
be just errors of omission. However the fact that these omissions
have occurred indicates the possibility of such things happening
in the future. This is one reason we suggest an 'inclusive clause'.
We would also want to see built into the legislation the provision
to ensure that subsequent re-organisations/restructuring of the
provision of public services will not exclude new bodies from being
covered.
2.6 The Scottish Parliament
It would be ironic if the very body due to legislate to introduce
an 'open Scotland' decided that the legislation would not apply
to itself! We would be opposed to any such move.
2.8 & 2.9 Right of Access to Official Information
We support the general right of access to information (held in whatever
form) and the opening of that access to all.
2.13
In addition to the simple and speedy response to requests we would
want authorities to have a 'Duty to assist' placed on them, so they
would be bound to advise applicants of their rights of appeal etc
- in addition to being informed of the success or otherwise of their
application.
We also would want authorities to give clear reasons for refusal.
2.15
Authorities should have a duty to publish a Guide/Register of information
that exists. This could be compiled centrally, but would probably
be better devolved to bigger bodies to do themselves with a central
body assisting smaller providers.
It might also be useful to suggest they publish a list of what they
cannot provide and why.
Proper resources should be given to appropriate bodies to do this.
3 Costs and Charging
3.6 Charging
We would not wish to assert that adequate records management or
archiving regimes are simply an additional burden on authorities.
Records management, at least, is in principle self- financing and
offers potential for cost-saving.
At the same time it is incontestable that Freedom of Information
will place additional financial burdens on authorities. An Open
Scotland shows no evidence of any attempt to estimate these costs,
in particular the potential cost of the rights of applicants 'to
choose the form in which they recieve information'
We also want to be clear that those exercising their rights should
not meet these costs in full.
In order to ensure that the 'resources of Scottish public authorities
are not unreasonablydiverted from their many other responsibilities'
UNISON suggests that the resource implication to authorities be
estimated and these resources provided by the government.
3.10 - 3.17 Proposals
On balance UNISON would prefer a variant of the second proposal
listed, ie, no charges to the applicant for any request that costs
under ú100. We would wish, however, to increase this level
to £250. We would also want to vary this by giving authorities
the power to waive charges above ú250 for applicants who
could not afford this (pensioners, the unemployed, benefit recipients
etc). Further consideration should also be given to whether not-for-profit
organisations should be charged for information.
What we clearly do not want is for there to be any suggestion that
the costs of providing information should be recouped by charging.
Procedures should be established to monitor the costs to authorities
and reflect this in grant settlements.
4 Test for disclosure
4.2 A need for balance
Given the important commitment to openness in the opening of the
legislation; the need to satisfy a 'harm' test for some exemptions;
and the need for authorities to consider the public interest even
if 'harm' will occur it is disappointing that so much information
is then the subject of class-based exemptions.
We feel that content-based exemptions would be sufficient to ensure
a proper balance of information available.
Specific examples of class-based exemptions clearly working against
the spirit of the legislation are listed in Annex C - particularly:
- The exemption for information relating to The formulation and
development of policy would mean that no public authorities would
be required to release details of their internal procedures for
deciding policy;
- The Research, statistics and analysis information listed in
Annex C should not be subject to class-based exemption; and
- The class-based exemptions listed under Information given in
confidence seem to us to be very open to abuse.
For example if anyone should want information to be automatically
exempt all they would have to do is supply it to a(nother) public
body in confidence whilst they are under no legal obligation! This
should be removed.
5 Personal Information
UNISON can see no reason why personal information should not be
accessible under the Scottish Freedom of Information Regime as well
as the Data Protection Act. One exception is already listed in the
consultation paper. There may be more and it seems unnecessarily
confusing to have personal information accessible under two different
acts depending on what form it is held in. Dual access would seem
a sensible provision.
6 Reviews and Appeals
6.3 the Scottish Information Commissioner
This post should be a powerful and independent one. The post must
be freely advertised and appointed in an open manner - we suggest
that a recommendation by the Scottish Executive should go before
an appropriate body of the Scottish Parliament for endorsement.
We agree with the proposals regarding the function and powers of
this post, including the power of inspection and seizure. Proper
resources of both staff and finance, must also be allocated to the
SIC to allow full involvement and promotional work.
6.5
We consider that deleting information to prevent disclosure should
be a crime.
6.8 The Lord Advocate
We see no incompatibility between the terms of The Scotland Act
and the proposed power to review The Lord Advocate's decisions on
releasze of information. We would argue that the SIC should have
the power to review decisions of the Lord Advocate not to disclose
information.
6.13 Reviews and Appeals Procedures
Full resources to enable public authorities to set up effective
review machinery should be allocated.
6.16
UNISON would favour the right of appeal against a decision by the
Information Commissioner to an Information Tribunal.
7 Public Records
7.3 Current Public Records system
The legislation should impose a duty on the relevant bodies to provide
an adequate system of access to records through anarchive service
supplied either by the authority individually or in conjunction
with other authorities. The practice of depositing outside bodies'
records with the Keeper of the Records would only be appropriate
if it was assumed that these bodies were incapable of providing
access to their own records where that access is best provided,
ie locally.
The proposed archives legislation would presumably place a responsibility
on the relevant bodies to provide access to their archival records.
7.6 Records Management
Twenty years of restrictions and cuts in public services in Scotland
have done nothing for the maintenance of public records in authorities.
Records management is routinely neglected and even such rights of
access as at present exist (for example under the Local Government
(Access to Information) Act 1985) can be difficult if not impossible
to enforce.
The Scottish Executive must recognise the need for:
- effective archives and records management systems to be established
in each authority/group of authorities
- the proper resources to be allocated to enable this to be done.
7.8
Guidance and best practice should be part of the Scottish legislation.
In particular we would want to support the provision of a code similar
to one proposed in the Westminster Bill. The Westminster White Paper,
(Your Right to Know, 1997) said "Statutory rights of access
are of little use if reliable records are notcreated in the first
place, or if the arrangements for their eventual archiving or destruction
are inadequate."
In addition to assisting applicants to exercise their rights, such
a code would be a crucial protection to our members. Currently decisions
are being taken on the retention our destruction of records, often
with no other guidance than the past practice of the authority in
question. This guidance may easily be inconsistent, and certainly
it varies widely.
8 Changing the Culture
8.4
The need to train authorities and individuals in the provisions
and culture of openness before the implementation of legislation
is agreed. But this should not unnecessarily delay the full implementation
of Freedom of Information. We think the Scottish Information Commissioner
should have the power to investigate 'refusals to provide information'
before implementation of the legislation and offer advice and guidance
to authorities.
8.5/8.8 Training Programme
A considerable programme of work and training will be required to
foster the culture of openness sought. UNISON is clear that the
Scottish Executive needs to will the resources as well as the legislation
to enable this to happen.
The training should not just apply to the officers of public bodies.
It should also be open to potential requesters of information (eg
journalists/campaign groups etc)
In conclusion can we say that we fully support the aims and objectives
of the Scottish Executive in moving towards open and accessible
government.
We welcome this consultation paper as a considerable step in the
right direction and are pleased to submit our comments. We hope
that they will be seen as complementary and extending the proposals.
We will be available for further consultation and would welcome
a future chance to comment.
An Open Scotland - UNISONScotland Recommendations
1 UNISONScotland welcomes the legislation
2 The 'purpose' of the legislation should be detailed in the legislation,
and the concept of 'openness' itself should be asserted as a general
principle.
3 Scottish organisations of UK bodies - eg Scottish Council of
Tribunals - should be covered by Scottish legislation
4 UNISON supports the 'presumption of openness'; the 'harm' test;
and the crucial public interest test for disclosure.
5 The scope of the legislation should include all public service
providers including - private sector providers; all quangos and
local bodies (Housing Associations, GPs etc); charities and voluntary
sector. An 'Inclusive not exclusive' clause would be a useful
addition.
6 The Scottish Parliament must be covered by the legislation
7 UNISON supports a general right of access to information, open
to anyone
8 Authorities should have a 'Duty to Assist' and give reasons
for refusals
9 They should publish Guide/Register to information available
and what is not available
10 The cost implications for authorities should be assessed and
provided for by the Government. They should not be paid for by
charges. The ' no charges for costs under £100' option should
be chosen, with the cut-off figure extended to £250. The
position of not-for-profit bodies should be further considered.
11 Class-based exemptions should be removed. Especially the exemptions
for
- Research, statistics and analysis,
- Information given in confidence, and
- Policy-making.
12 Personal information should be available under both Data protection
and Freedom of Information legislation
13 The Information Commissioner should be independent and powerful
and have the powers and resources to function properly
14 Deleting information should be a crime
15 The Lord Advocate's decisions should be subject to review by
the Information Commissioner
16 Proper resources must be granted to allow authorities to set
up review processes
17 An Information Tribunal should be established
18 A duty to deposit must be introduced, to an appropriate archival
service provided by the authority locally.
19 Effective archive/records management should be enforced, and
proper resources should be granted to provide this.
20 Guidance and best practice should be disseminated, and a code
of practice provided to assist applicants and protect staff.
21 Training must be given before implementation, but that should
not delay introduction voluntarily - The Information Commissioner's
office should be set up early to investigate, encourage and advise
22 Willing the resources is as important as the structures
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