overview presentation · overview presentation freedom of information (scotland) act 2002. 2...

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OVERVIEWPRESENTATION

FREEDOM OFINFORMATION(SCOTLAND)

ACT 2002

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BACKGROUND TO FREEDOMOF INFORMATION (SCOTLAND)ACT 2002

• Passed by the Scottish Parliament -24 April 2002

• Royal Assent – 28 May 2002• Scottish Information Commissioner

appointed - February 2003• Implementation timetable announced -

May 2003• Implemented 1st January 2005

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Freedom Of Information(Scotland)Act (FOISA) Workshops

• What does the Act do?• What is a Publication scheme?• Why is Records management important?• How do you know whether a request for

information falls under the FOISA?• Timescales and charges• Exemptions• Role of Scottish Information Commissioner• What does it mean for you?

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WHO IS SUBJECT TO THE ACT?

• All Scottish public authorities listed in Schedule 1:– Local government, police, health, public

education– NDPBs (e.g. Commissioners)– Scottish Ministers, Parliament and the Executive

and– Companies wholly owned by Scottish public

authorities– Organisations designated by order of the Scottish

Ministers (e.g. contractors of an authority)

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WHAT WILL THE ACT DO? –OVERVIEW

Section 1 (1) of the Act states:

�� Although there are exemptions, terms and conditions, theimplementation of the Act should be governed by the simpleprinciple that public’s general right of access should beunderstood as entitlement by default.

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WHAT WILL THE ACT DO? –OVERVIEW

Provides for:• presumption of right of access to any information

held by a public authority• a number of absolute exemptions and others where

disclosures may be made in the public interest• an enforcement mechanism and an independent

regulator• publication schemes• The Act is retrospective (ie covers all information

held no matter how old)

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FREEDOM OF INFORMATIONIN CONTEXT

• The Freedom of Information (Scotland) Act 2002provides a right to access information held byScottish public authorities. This should– lead to increased accountability– lead to the breakdown of a culture of secrecy and– ensure that public bodies look outward to the

communities they serve• This right of access applies to any individual,

anywhere in the world.

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PUBLICATION SCHEME

• A public authority must maintaina publication scheme

• Schemes list classes ofinformation which are publishedor intended to be published, howthey are to be published (e.g.internet), and any fees for copies

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Classes of Information Within the NHSHighland Publication Scheme

• (a) The NHS: Who We Are.• (b) Corporate Information/Governance.• (c) Financial Information.• (d) The Policy Framework for NHS Highland.• (e) Improvement, Change and Innovation.• (f) Reports of Independent Assessments.• (g) Patient Focus/Public Involvement.• (h) Policies and Procedures.• (i) Complaints Procedures.• (j) Staff Governance.• (k) Press Releases.• (l) Public Health.• (m) Environmental Information.

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RECORDS MANAGEMENT –INTRODUCTION

“Any freedom of information legislationis only as good as the quality of therecords to which it provides a right ofaccess. Such rights are of limited use ifreliable records are not created in thefirst place, if they cannot be found whenneeded or if the arrangements for theireventual archiving or destruction areinadequate…”

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“Consequently all Scottish public authorities areexpected to have regard to the guidance in this Codeto ensure that they are managing their recordseffectively. For many authorities this will mean asignificant culture change for all of their staff – seniormanagers have a responsibility to lead and promotethat change”Code of practice on the keeping, management anddestruction of records issued by the Scottish Ministers(“Section 61 Code”)

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REQUEST FOR INFORMATION

To be valid a request must:• be in writing

– includes emails– legible

• contain the correspondence address andname of the applicant

• describe the information requiredNB IT DOES NOT HAVE TO SPECIFY THAT IT

IS A REQUEST UNDER FOISA

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FEES

Authorities may charge a fee

NHS Highland has agreed to charge• 10p per page for paper copies (although

any charges less than £50 will normallybe waived)

• Information provided by email or disk -free

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RESPONSE TO REQUESTS

Authorities have to:• communicate the actual information

unless an exemption applies• satisfy the request within 20 working days

(a working day is Monday to Fridayexcluding Bank Holidays)[The 20 days deadline is from the point atwhich the request is received by anymember of staff of NHS Highland]

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EXEMPT INFORMATION

• “Absolute exemptions” - the exempt information isnot subject to a public interest test.

• “Non-absolute exempt information” the publicauthority has to weigh up the public interestconsiderations “in all circumstances of the case”before applying the exemptions so that the right ofaccess does not apply. The starting position is thatthe public interest is served by disclosure.

• The public authority may have to show why thepublic interest is served by applying the exemption.

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ABSOLUTE EXEMPTIONS

• Information accessible by other meanse.g. already published under a publicationscheme

• court records• personal data (requested by data subject -

Data Protection Act applies instead)• information which cannot be disclosed by

law (court order, statute or enforceableobligation of confidence)

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NON-ABSOLUTE EXEMPTIONS

• Personal data (third party) eg personaldata about staff about staff or patients

• Endanger physical or mental health ofany individual

• Environmental information(Environmental Information Regulationsapply instead)

• Communications with the Queen

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• Information which is/is intended to bepublished within 12 weeks

• Information which would prejudicesubstantially:– Audit functions– Formulation of Scottish Administration policy– The effective conduct of public affairs– Information intended for future publication

• Commercial interests, or trade secrets

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• Information held for criminal investigations or proceedingsor informants

• Information which would prejudice substantially the:– Prevention and detection of crime; apprehension or

prosecution of offenders– Security and good order in prisons and other law

enforcement purposes– The administration of justice– Operation of immigration control– Collection of tax, duty or imposition of a similar nature

(e.g. council tax)

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• National security• Prejudice substantially the defence of the realm or the

effectiveness of armed forces• Prejudice substantially international relations• Information is confidential and originated from another

State• Prejudice substantially relations between

parliaments/assemblies in the UK• Prejudice substantially the economic interests of the UK

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DATA PROTECTION ACT 1998

• It applies to “personal data” that isinformation about a living individual

• It applies to automated information or thatheld on filing systems structured byreference to the data subject

• There are more stringent rules for sometypes of data known as sensitive data

• Those who process personal data arecalled data controllers

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INTERFACE FOISA AND DPA –SUBJECT ACCESS

• Where an individual asks for access to personaldata about him or herself the request does notcome under the FOISA. It is covered by anexemption from the FOISA. If the authority is sureof the identity of the applicant it should be treated asan application for subject access under the DPA

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INTERFACE FOISA AND DPA – THIRDPARTY ACCESS REQUESTS

• Where a third party asks for access toinformation about another person it is anaccess request under the FOISA. Howeverthe information may be exempt from theright of access if disclosure would involve– Breach of the DPA– Health records of those who are

deceased– Census information in the last 100 years

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The Data Protection Principles

• fairly and lawfully processed;• processed for limited purposes;• adequate, relevant and not excessive to the purpose of the processing;• accurate;• not kept longer than necessary;• processed in accordance with the data subject's rights;• held securely;• not transferred to countries without adequate protection.

Anyone processing personal data must comply with the eightenforceable data protection principles. These state, broadly, thatpersonal data must be:

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INTERFACE FOISA AND DPA – THIRDPARTY ACCESS REQUESTS

• Information will be exempt under FOISA if– The disclosure would involve a breach of

the data protection principles– The information would not be provided to

the data subject himself because of theapplication of a subject accessexemption or

– Where the information would fall underthe DPA, the individual has exercised hisright to object to processing and theobjection has been accepted by the datacontroller

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SCOTTISH INFORMATIONCOMMISSIONER

• Deals with complainants• Can issue:

– Information Notice– Decision Notice– Enforcement Notice

• Not an offence to ignore a Notice, but action forcontempt of Court possible

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THE COMMISSIONER(CONTINUED)

• Commissioner approves/rejectspublication schemes;

• “Practice Recommendations” (when theCommissioner thinks that the publicauthority is not meeting the requirementsof a Code of Practice which applies to it).

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OFFENCE (SECTION 65)

• Where a request has been made and theinformation would be communicable underthe FOISA

• Offence for any person to take any actionwith the intention of preventing disclosure

• Applies to both the authority and theindividual employee

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WHAT DOES FOI MEAN FOR YOUAS A MEMBER OF STAFF?

ANYTHING YOUWRITE MAY ONE

DAY BE PUBLISHED(This applies to all records, handwrittennotes, emails etc)

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What Does FOI Mean for You?(continued)

Implications for:• Minute taking and report writing

– Be objective,– record decisions and the reasons for those

decisions– Confidential appendices

• Consider having confidential appendices whichcontain only the personal data which cannot bereleased e.g. the names of patients. The reportor minute can then be released withoutbreaching patient confidentiality)

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• Proactive publication– As much as possible should be

published to ensure the public haveaccess to information easily and quickly

– If information is already published it isexempt - you should direct enquirers tothe NHS Highland website (free accessto the internet is available at allHighland libraries)

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• Record Keeping– It is important to be able to access

records quickly and easily in order toanswer requests for information

– As well as letters etc, consider keepingemails which form a record of whatdecisions were made/ actions taken. Ifyou are asked in two years time whyyou did something you won’t be able toremember.

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• Reporting– It is important not to allow compliance with Act to make

responding to requests for information from the publicbecome too bureaucratic. This could potentially lead toslower access to information than previously.

– Therefore only those requests being received at AssyntHouse, or those requests where release of information isbeing refused, are being formally recorded

– If you are going to have to refuse to release information(other than personal data relating to staff or patients)please notify Chris Meecham

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• Mail– The clock starts ticking at the point at which the

request is received (ie in your email inbox or at anNHS Highland building). It is good practice todate-stamp or mark when the request wasreceived

– You should have arrangements in place for yourmail to be dealt with while you are away (e.g. onleave). Otherwise you will have even less time tomeet the 20 day deadline.

– If you receive a request which you can’t answer,pass it on quickly to someone who can

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Further Information

• http://www.scotland.gov.uk/government/foi - Scottish Executive

• www.itspublicknowledge.info -Scottish Information Commissioner

• www.show.nhs.uk/nhshighland/ -NHS Highland

• Contact Chris Meecham, Head of Media Communicationsand Corporate Services,Tel : 01463 704820 or email [email protected]

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