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Positively Public Information
Freedom of Information (Scotland) Bill
UNISON Scotland Written Evidence to
The Scottish Parliament's Justice Committees
1. Executive Summary
UNISON welcomes the opportunity to give evidence to
the Justice Committee
on the Freedom of Information Bill. Whilst we are supportive of
many of the
positive aims of the bill we feel that legislation's coverage is
somewhat
weak, and that a commitment to resource the regime is required.
We also
feel that, the lack of many changes from the draft Bill to this
Bill
indicates that concerns raised by respondents have not been addressed
by
the Executive. In particular we would like to see:
* The introduction of a 'purpose' clause detailing the aims of the
legislation and its coverage - and in particular, that it is the
intention
to apply to all public service providers.
* All public service providers being clearly covered by the legislation.
We
suggest some alternative ways to ensure better coverage.
* Requests for information being acceptable in person and by phone.
There
should be a system of recording such requests.
* That authorities should not be allowed to refuse to provide information
that costs more than an amount prescribed in the regulations, and/or
is
perceived to be part of a campaign. Both could be open to misuse.
* Each authority should being required to appoint a designated Freedom
of
Information Officer.
* No use of class-based exemptions. In particular these are anomalous
in
the cases of, formulation of policy by the Scottish Administration,
and
trade secrets. We think that contents-based exemptions are sufficient
to
ensure a proper balance of information.
* That guidelines, training and codes of practice, are established
as soon
as possible. We suggest some ways forward.
* A clear commitment for extra resources to be given to authorities
to
cover the admitted extra costs.
* Further research being carried out into the preparedness of public
authorities and others to adapt and deliver this legislation.
* Training being established for staff and users as soon as possible,
not
necessarily waiting for the bill to be enacted.
2. Introduction
2.1 UNISON Scotland is Scotland's largest union with
nearly 150,000
members working in Scotland's public services. We have very clear
views on
the Freedom of Information (Scotland) Bill, firstly as the trade
union that
represents the archivists, information officers and other public
authority
staff who will require to supply information requested under this
legislation. In addition, as the trade union representing staff
working for
public authorities and other public services providers, we need
to access
such information ourselves. In particular in order to be able to
discuss
the future of public services, especially those threatened with
cuts,
outsourcing and reorganisation.
2.2 We commented on both the Consultation Paper - An Open Scotland
-
and the Draft Bill. We were pleased that some comments have been
taken on
board, but we are disappointed that our main comments have not been
2.3 We welcomed the greater extent and powers proposed by the Freedom
of Information (Scotland) Bill compared with the UK legislation
and such
improvements on the UK Act as; a strong and independent Information
Commissioner; and the stronger harm test of ''substantial prejudice'.
2.4 However there are still too many unwarranted restrictions in
the
legislation for us to be totally supportive. The legislation could
be
dramatically improved by the adoption of a relatively small number
of
improvements. Some of these are laid out below.
2.5 In addition to improvements in the bill itself, the commitment
of
the Scottish Executive to Freedom of Information would be demonstrated
beyond doubt, if a firm pledge was made to provide the resources
to allow
public authorities to deliver the service. This will be dealt with
in full
later on.
Access to Information held by Scottish Public Authorities
Part 1 of the Bill
3. A 'Purpose' clause
3.1 The title of the Bill says that it is about disclosure
of information
held by Scottish public authorities. This is a step back from the
aims set
out in the consultation document - An Open Scotland (para 2.4) -
namely
that Freedom of Information should be set as widely as possible
and should
cover Scottish public service providers:
* Many public services are now provided by bodies
that are not public
authorities --private companies: non government organisations; charitable
and voluntary organisations - and there is no statement of intent
that they
should be covered, raising the danger of a two-tier system. Instead
coverage might be defined by reference to bodies fitting a certain
description - for example, the Human Rights Act 1988 applies to
all bodies
with "functions of a public nature".
* Most freedom of information legislation is introduced to ensure
the right
of a citizen to information - especially on services that affect
them. This
and other purposes are often outlined in the legislation. Purposes
such as,
'leading to a more open and inclusive society; empowering the public
to be
motivated in public life; and ensuring a citizen that is better
informed
and therefore better able to make informed decisions etc' can be
useful in
outlining the reasons behind the legislation.
3.2 Both of the above aims could be advanced by the introduction
of a
'purpose clause' detailing the aims of the legislation and its prospective
coverage. UNISON would strongly urge the adoption of such a clause
to
delineate the aims and coverage of the legislation.
3.3 In particular such a clause (or indeed the Bill's title if there
is
to be no such clause) should indicate that it is intended that FofI
is
intended to apply to all public service providers equally.
4. Coverage - Scottish public authorities
4.1 Section 3-7 of the Draft Bill lists the coverage
of public
authorities. This is broken down into:
* Scottish Public Authorities (including publicly-owned
companies)
(Sections 3 and 6)*
Bodies designated by ministers as providing a public
function or
providing a service under contract (Section 5)
* Public authorities to which Act has limited application
(Section 7)
Public authorities are listed under Schedule 1.
4.2 UNISON's view is that this list indicates the need for far more
stringent incorporation of public service providers.
4.3.1 Cognition has been taken of some of the public bodies missing
from
the Draft Bill, but the following 'public service providers' have
not been
listed - despite the fact that they are generally considered by
Government
and others, to be part of the social sector:
* Housing Associations and are not listed, Scottish
Homes has stopped being
listed, and Communities Scotland has not been added
* Careers Scotland is not listed, and neither are
the various
companies/consortia providing careers advice
* Whilst Scottish and Highlands and Islands Enterprise
are listed, Local
Enterprise Companies are not.
* Social Inclusion Partnerships and area regeneration
Partnerships are not
covered.
4.4 Many public services are now being provided by voluntary,
charitable or private organisations - for example residential and
other
care services; schooling or educational services; hospital care,
leisure
and museum services - and these are in receipt of considerable sums
of
public money. UNISON thinks that these providers should be subject
to the
same public responsibilities as traditional public authorities,
or we risk
setting up a two-tier freedom of information regime.
4.5 There is also no indication about how frequently the 'Bodies
designated by ministers as providing a public function or providing
a
service under contract' will be designated, or how long it might
take,
given each body has to be consulted prior to its designation. It
might have
been helpful if listings of these were started now.
4.6 UNISON feels that these loopholes must be addressed in order
to
avoid the position where some providers are subject to the provisions
of
the Act and some are not. Many will only be covered if Ministers
specifically decide to include them - such as the companies providing
the
new trunk road maintenance contracts, housing associations running
Scotland's social housing sector and private companies providing
services
like prisons, school and hospital maintenance.
4.7 We suggest the following improvements:
* the inclusion of a clear purpose clause indicating
the intention of the
legislation to cover all providers of public services (see above).
* The inclusion of 'designated organisations' under
Section 5, either in
Schedule 1 or in a separate schedule of designated bodies
* A system to be established to adjudicate on whether
an organisation
should be subject to the Freedom of Information regime - perhaps
an extra
power given to the Scottish Information Commissioner.
* Publicising the frequency and automaticity of how
'non public' bodies
under Section 5 are to be designated.
5 Accessibility (Sect 8)
5.1 UNISON is concerned that, whilst requests - both
for information
and for review - are only to be acceptable if delivered by written
or
electronic means. Requests in person or by phone are not. We think
that
this restricts access and is potentially discriminatory against
those who
have difficulty with written communications. It should be possible
to
develop a system of recording all requests for information so that
they are
capable of being used for subsequent reference.
6. Affordability (Sect 12)
6.1 We are pleased that the basic level of changes
for information will
be provided free of charge - although we think that the bottom limit
on
this is too low at ú100. We are also pleased to see the acceptance
that
charging cannot fund the provision of information.
6.2 However, we are unhappy at the low level at which the suggested
'ceiling' is set. In particular the removal of any obligation to
provide
information that might cost more than ú500. This figure is
lower than that
in the UK legislation and consequently the costs that an applicant
can be
charged could end up as more then under the UK legislation.
6.3 We think there should be no 'higher limit' cut off for information
provision and that the costs lower down the scale should not be
fully
passed to the applicant. All applications that cost less than ú250
should
be free and there should be consideration of a scheme for not-for-profit
bodies to be able to claim assistance.
6.4 We are also opposed to the provision in Section 12 (2), to allow
authorities to ignore multiple requests if they perceive them to
come from
an organised campaign. This proposal is unnecessary and undemocratic
and
should be scrapped.
7. Ease of Use (Sect 15)
7.1 We are pleased that our suggestion of a duty to
assist and the
requirement to publish guides and lists have been incorporated.
We think
that these should be strengthened by the requirement for an authority
to
appoint a designated 'Freedom of Information' Officer.
Exempt Information
Part 2 of the Bill
8. Class-based exemptions
8.1 Whilst UNISON accepts that there is a right to
privacy and some
information should have appropriate protection to safeguard the
operation
of public services, we can still see no reason for so much information
still to be the subject of class-based exemptions.
8.2 It seems to us that, as this legislation aims towards openness
and
the need to satisfy a harm test of 'substantial prejudice' to the
matter in
question and the requirement to consider the public interest in
disclosing
the information, means that content-based exemptions would be sufficient
for most tests.
8.3 In particular we can see little or no reason;
* why the formulation of policy in other public authorities
are not exempt
but the formulation of Scottish Administration policy is subject
to a
class-based exemption (Section 28)
* why 'trade secrets' are a class-based exemption
when 'commercial
interests' are content based
8.4 We would reiterate our comment made on the consultation paper
that
content-based exemptions would be sufficient to ensure a proper
balance of
information was made available.
The Scottish Information Commissioner and Enforcement
Parts 3 & 4 of the Bill
9.1 UNISON supports the appointment of an independent
Scottish Information
Commissioner and is pleased to note the strength of the powers granted
to
this office.
9.2 Proper resources must be made available to this office to enable
the job to be properly carried out. We are aware that the original
resources dedicated to the Irish Office of the Information Commissioner
considerably underestimated both the number of staff and the amount
of time
required.
9.3 Especially important are the promotional and training aspects
of
the post and UNISON would urge the Scottish Executive:
* to allocate extra resources to this function in
the short term to
establish guidelines, training and codes of practice;
* to open up working groups and training to prospective
users of the
Freedom of Information regime as well as the providers.
Public Records, Costs and Structures
Parts 1, 5 and 6 of the Bill
10.1 We are disappointed that, whilst there is an
estimate made of the
cost of the legislation (in the region of ú2.5m-ú4.8m
per year), there does
not appear to be an appreciation that proper resources will be required
to
enable efficient storage and search mechanisms to be set up.
10.2 As the Westminster White Paper (Your Right to Know, 1997) said
'Statutory rights of access are of little use if reliable records
are not
created in the first place or if the arrangements for their eventual
archiving or destruction are inadequate.'
10.3 It is therefore worrying to read such a complacent statement
in the
Financial Memorandum to the Bill as:
'...many Scottish public authorities already handle large numbers
of
requests for information within existing resources, the net increase
in the
cost to public authorities should, however not be significant...'
The
source of this 'information' is not given but it is the experience
of
UNISON members working in various parts of the information storage
and
retrieval functions of Scotland's public authorities that the last
twenty
years of reorganisation, cutbacks, outsourcing and restrictions
have meant
that even such rights of access as at present exist can be difficult
to
enforce.
10.4 To introduce a new 'culture' and regime to this function without
the resources to train, staff and create procedures, could mean
a disaster
for Freedom of Information. The following suggestions could take
this some
steps forward.
* Research should be instigated into the preparedness
of authorities to
adapt and function under this legislation.
* Training should be established speedily to ensure
that staff are aware of
the likely provisions of the new legislation.
* Authorities covered by the legislation should have
a duty to either
establish proper systems themselves or to use approved systems established
by other public authorities.
* Working groups involving users as well as providers,
should be
established to start work on what is required to enable the Act
to be
effective.
11. Conclusion
11.1 Finally can we say that two major issues - the
lack of complete
coverage of public service providers and the failure to recognise
and
provide the proper resources are a danger to the full realisation
of the
Scottish Executive's published hopes for this legislation.
11.2 The Bill is a positive step forward and is better than the
UK
legislation but, unless it applies equally to all public service
providers,
and unless the appropriate resources are given to ensure public
authorities
can set up, and monitor systems and train staff. The objectives
of this
very important legislation risk failure.
11.3 We welcome the opportunity to put these points to the Justice
Committee and would be willing to discuss the legislation further
if you
feel it would be useful.
For Further Information Please Contact:
Matt Smith, Scottish Secretary
UNISONScotland
UNISON House
14, West Campbell Street,
Glasgow G2 6RX
Tel 0141-332 0006 Fax 0141 342 2835
e-mail matt.smith@unison.co.uk
Submissions index
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Previous responses
* JUNE 2001 - Freedom of
Information from all public services
Freedom of Information The Scottish Executive's Consultation on
Draft Legislation The UNISON Scotland Response
* JANUARY 2001 - An Open Scotland,
Scottish Executive consultation: UNISONScotland response
- Freedom of Information
Submissions index
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