Executive Summary
UNISON welcomes the improvements on the legislation
and the fact that some previous comments have been taken on board.
However the Draft Bill still requires improving,
and a commitment to resource the regime is required.
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We want to see the introduction of a ‘purpose'
clause detailing the aims of the legislation and its coverage
- especially that it is the intention to apply to all public
service providers.
-
The Scottish sections of cross-border bodies
should be subject to the Scottish legislation.
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All public service providers should be clearly
covered by the legislation. We suggest some alternative ways
to ensure better coverage.
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We think that requests should be acceptable
in person and by phone. There should be a system of recording
such requests.
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We do not think that authorities should be
able to pass the full costs of searches (less the first £100)
on to applicants. Neither do we agree that authorities can
refuse to provide information that costs over £500/550.
-
Each authority should be required to appoint
a designated Freedom of Information Officer.
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UNISON is opposed to the use of class-based
exemptions, in particular with reference to: the formulation
of policy by the Scottish Administration; trade secrets and
investigations. We think that contents-based exemptions are
sufficient to ensure a proper balance of information.
-
Extra resources should be made available
in the short term to the Scottish Information Commissioner's
Office:
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to establish guidelines, training and codes
of practice
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to open up working groups to users as well
as providers.
-
The Scottish Information Commissioner's
position should not be combined with the Scottish Ombudsman.
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There is a clear requirement for extra resources
to be given to cover the admitted extra costs.
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This should cover the estimated costs and
further research should be carried out in to the preparedness
of public authorities and others to adapt and deliver this
legislation.
-
Training should be established for staff.
-
Proper systems should be put in place by
affected authorities.
Introduction
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 draft Freedom of
Information (Scotland) Bill, both from the perspective of
trade unionists working for public authorities and other public
service providers, and from the perspective of information and
archive workers whose job it will be to provide the information
sought under the legislation.
We commented on the Consultation Paper — An
Open Scotland — and we are pleased that many of our comments
have been taken on board.
We welcomed the greater extent and powers proposed
in that paper compared with the UK legislation and likewise welcome
the commitment to such improvements on the UK Act as; a strong
and independent Information Commissioner; and the stronger harm
test which should back up the commitment to a general right of
access to information held by Scottish public authorities.
However there are still too many unwarranted restrictions
in the legislation for us to be totally happy. The legislation
could be dramatically improved by the adoption of a relatively
small number of improvements. Some of these are laid out below.
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 commitment to provide
the resources to public authorities to deliver the service, was
made. This will be dealt with in full later on.
Access to Information held by Scottish Public Authorities
Part 1 of the Bill
A 'Purpose' clause
Whilst the title of the draft Bill says that it
is about disclosure of information held by Scottish public authorities,
it does not:
- cover the principle set out in the consultation document
— An Open Scotland (para 2.4) 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 organisation; charitable and voluntary
organisations — and there appears to be no statement
of intent that they should be covered, leading to the possibility
of a two-tier system.
- outline the reasons behind the legislation. Most FREEDOM
OF INFORMATION legislation is introduced to ensure the right
of a citizen to information — especially on services
that affect them. The objectives of this are often outlined
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
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 is aware
that this is still under consideration by the Scottish Executive
and would strongly urge the adoption of such a clause to delineate
the aims and coverage of the legislation.
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.
Coverage - cross border bodies
We also suggested that the Scottish organisations/committees
of UK bodies should be included under the Scottish rather than
the UK legislation, in order that there are not two regimes operating
in Scotland.
This does not appear anywhere in the draft Bill
and we assume tha t they will be covered by the UK legislation.
We feel that this has the potential for confusion
— especially when the existing Data Protection legislation
is included. The problem is exemplified by the Scottish Committee
of the Commission on Tribunals — the Scottish part of a UK
Commission which supervises the function of tribunals in the public
sector. This Scottish Section, itself will presumably be covered
by the UK legislation, but many of the Tribunals it monitors will
be covered by the Scottish Act.
It would be clearer if Scottish Sections of UK bodies
were covered by the Scottish Freedom of Information Bill.
Coverage - Scottish public authorities
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
UNISON's view is that, whilst it is understood
that work is still ongoing on the lists — its publication
indicates the need for far more stringent incorporation of public
service providers.
Whilst cognisance has been taken of some of the
missing bodies from the consultation period, 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:
- whilst Scottish Enterprise is listed, Local Enterprise Companies
are not
- Whilst the Scottish Tourist Board is listed, local tourist
boards are not
- Valuation boards are not listed
- Housing Associations are not listed and Scottish Homes has
stopped being listed
- Careers Scotland is not listed, and neither are the various
companies/consortia providing careers advice
- The Scottish Prisons Service is not listed.
- The Health Service Commissioner for Scotland and the Commissioner
for Local Administration in Scotland are not listed but the
Scottish Parliamentary Commissioner for Administration is.
In addition there is no indication of the attitude
towards public services 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.
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.
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.
- The publication of advice on the frequency and automaticity
of the designating of ‘non public' bodies under
Section 5
- The inclusion of more specific named bodies either in Schedule
1 or in a separate schedule of designated bodies
- Some kind of 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.
Accessibility (Sect 8)
UNISON is concerned that, whilst requests are acceptable
in written or electronic means, requests in person or by phone
are not to be acceptable. 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 requests for information so that they are
capable of being used for subsequent reference.
Speed (Sect 10)
UNISON is pleased to see the improvements on the
UK Act for responding to requests and for reviews of refusals
to provide information. However, unless proper resourcing is provided
and organisation of records are done, it is likely to be ineffective.
(See below)
Affordability (Sect 12)
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 should be £250 — not £100 as suggested.
We are also pleased to see the acceptance that charging cannot
fund the provision of information.
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 £500. This figure
is lower than that in the UK legislation and the costs that an
authority can charge for could end up as more then under the UK
legislation.
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 £250 should be free and there should be consideration
of a scheme for not-for-profit bodies to be able to claim assistance.
Ease of Use (Sect 15)
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.
We also think that the Codes of Practice issued
by Ministers under Sections 59 and 60 should be utilised by the
Commissioner to decide on the proper functioning of authorities
as far as Freedom of Information is concerned.
Exempt Information
Part 2 of the Bill
Class-based exemptions
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.
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 that the content
based exemptions would be sufficient for most tests.
In particular:
- we can see little or no reason why the formulation of other
public authorities are not exempt but that formulation of
Scottish Administration policy is a class-based exemption
(Section 28)
- why ‘trade secrets' are a class-based exemption
when ‘commercial interests' are content based
- Why, if law enforcement matters (Section 34) are covered
by a content-based exemption, investigations by Scottish public
authorities are covered by a class-based exemption.
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
UNISON supports the appointment of an independent
Scottish Information Commissioner and is pleased to note the strength
of the powers granted to this office.
Proper resources must be made available to this
office to enable the job to be properly carried out.
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.
It is UNISON's view that considerable confusion
could arise if the post of Scottish Information Commissioner was
to be combined with the Scottish Ombudsmen. We see the Scottish
Information Commissioner function as distinct from the ‘complaints
system' function provided by the Ombudsman. Of course the
relationship between the offices should be positive and the need
for information sharing is important.
The Health Service Commissioner for Scotland and
the Commissioner for Local Administration in Scotland should also
be covered by the Freedom of Information Draft Bill.
Public Records, Costs and Structures
Parts 1, 5 and 6 of the Bill
We are disappointed that, whilst there is an estimate
made of the cost of the legislation (in the region of £2.5m-£4.8m
per year) and that this cost should cover costs relating to the
Scottish Information Commissioner, internal reviews in authorities,
training and duty to publish information etc, 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.
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.
It might well have added ‘and proper resources
are not supplied to allow this to be done."
It is worrying to read such a complacent statement
in the Commentary on the Draft Bill as:
‘…many Scottish public authorities already
handle requests for information…. And will have existing
structures in place able to support the provision of information
under the freedom of information legislation.'
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.
To introduce a new ‘culture' and regime
onto this function without including the resources to train, staff
and create procedures, could mean a disaster for Freedom of Information.
At the very least proper 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.
Conclusion
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.
The Bill is a positive step forward and is better
than the UK legislation, but unless it is seen to apply equally
to all public service providers and unless the appropriate resources
are given to ensure public authorities are set up, and monitor
systems and train staff to deliver the objectives of very important
legislation.
We would be willing to discuss these comments further
if you feel it would be useful. We will also be keen to become
involved in further discussion on the implementation of the legislation.
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
