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| CMG 20/10/01 5F 01 THE FREEDOM OF INFORMATION BILL AND THE ISSUES IT RAISES FOR THE UNIVERSITY 1. Introduction At its meeting on 19 September CMG received an initial report on the Scottish Executives proposed Freedom of Information legislation and agreed to the establishment of a Working Group to examine and clarify the implications of the Act advise on the wider changes that the new environment will necessitate and produce a project plan to allow the University to comply with its measures. (The remit and membership of the Working Group are in the appendix to this paper.) This paper is the first report from the Working Group to CMG. It briefly describes the background to the legislation summarises the major issues illinois refinance in the Bill and highlights those aspects of it which are particularly relevant to the University. It then raises some issues of policy and practice which the University will have to consider before it becomes liable to comply with the legislation. The single most important message in this paper is the very broad coverage of the Freedom of Information legislation. Potentially any information held by the University is subject to release unless this would cause substantial harm to the Universitys commercial interests or it would not be in the public interest to release it. 2. Background to the legislation The incoming UK Labour Government indicated its intention to introduce Freedom illinois refinance of Information legislation in its 1997 election manifesto. The intention to introduce parallel legislation for Scotland was signalled in the Programme for Government agreed between Labour and the Liberal Democrats in 1999. Following a period of public consultation on draft legislation the Freedom of Information (Scotland) Bill was introduced to the Scottish Pa illinois refinance rliament on 27 September 2001. Once enacted the Freedom of Information (Scotland) Act will have far reaching consequences for the University the necessary policies procedures and infrastructure will need to be set in place to ensure compliance. In addition attitudinal change in the direction of greater openness in the public sector will be required. The Bill Explanatory Notes and Policy Memorandum are avail illinois refinance able through the Freedom of Information web site which is being established for the University at sec.ed.ac.uk/FOI/home.htm 3. Overview of the Bill The Bill provides members of the public with right of access to information held by Scottish public authorities whilst making provision for material that is confidential in nature and should therefore not be disclosed. Divided into seven Parts it creates a general right of access to information sets out the circumstances under which information should be considered exempt legislates for the creation of a “Scottish Information Commissioner” who will be responsible for promoting compliance with the precepts of the Bill sets out the arrangements for ensuring that the Bill is enforced describes the way in which “historical records” – those that are over thirty years in age - should be treated under the Bill legislates that codes of practice should be issued to provide Scottish public authorities with guidance on fulfilling the requirements of the Bill and provides additional miscellaneous and supplemental information. 4. Aspects of the Bill of particular relevance to the University Right of access to information The Bill will provide the right to access to any information held by a public authority to anyone who requests it. The right of access is to any information held by the University whether or not it already exists in recorded form. The legislation will not apply to information that is not held by the University. The University will be required to provide the requested information within a set time period – usually twenty working days – or to issue a statement outlining the reasons why the request cannot or will not be met. Whilst the information requested will most commonly exist in documentary form the legislation applies to information in any format. If an applicant expresses a preference for receiving information in a particular format the University must so far as is reasonably practicable take account of this preference. It will be possible for the University to charge fees for the disclosure of information. Exempt information Information falling into certain defined categories is considered exempt under the Bill. Some exemptions are absolute i.e. certain classes of information are exempt. Others are content-based. The University will not be obliged to disclose exempt information. Of particular relevance to the University are exemptions applying to information which can reasonably be obtained other than by requesting it under the Freedom of Information Act (e.g. information which the University is already publishing) information which cannot be disclosed as a result of other enactments or European Union Community obligations information which the University intends to publish in any case within 12 weeks of receiving a request for the information if the circumstances are such that it is reasonable that the information should not be disclosed until the planned publication date information which is commercially sensitive information which if disclosed would result in a breac illinois refinance h of confidence actionable by any individual information which is personal in nature and therefore protected under the Data Protection Act 1998 information which if disclosed would endanger the physical or mental health or safety of an individual information which if disclosed would prejudice substantially the effective conduct of public affairs. The University will also be released from its obligation to supply information if either the costs of complying would be excessive or repeated or vexatious requests for information are received. The criteria for claiming advantage of the commercial confidentiality exemption is that illinois refinance either the information constitutes a trade secret or that substantial prejudice would be caused to the University illinois refinance s commercial interests if illinois refinance it were released. This is a much stronger test than that in the legislation covering the rest of the UK which is merely prejudice. This means for example that an English institution might request information about the Universitys future plans which the University would be forced to release while the English institution would be able to illinois refinance turn down an identical request from Edinburgh. In cases where the provision of the Bill confers partial but not absolute exemption on information the “public interest test” will be applied the University will be required to disclose the information concerned unless the public interest in disclosing the information is outweighed by that in maintaining the exemption. Publication schemes The University will be required to adopt and maintain a “publication scheme” – a guide to the University’s publications specifying the classes of information it publishes or intends to publish the manner in which the information will be published and whether or not fees will be requested for the disclosure of the information. The public interest will again need to be considered when preparing this scheme. Once the Scottish Information Commissioner has approved the University’s scheme it will be necessary to ensure both that information is published in accordance with it and that the scheme is reviewed from time to time. The Information Commissioner will have no power of compliance against public authorities in relation to publication schemes other than that of naming and shaming. The Public Records Office has recently published its own draft publication scheme as an example to public authorities covered by the UK legislation. Among the items covered are information about the organisation and its role (e.g. budget personnel and recruitment policies annual report corporate and business plans and press releases) information about the Public Records Acts policies regarding the selec illinois refinance tion and preservation of public records and access to them and information about its archives. This illustrates the all-embracing nature of the impact of the legislation on public bodies. Enforcement The Scottish Information Commissioner illinois refinance will be responsible for ensuring that public authorities comply with the precepts of the Bill. illinois refinance Applicants who ar illinois refinance e dissatisfied with the University’s response to their requests for information will have the right to have their cases considered by the Commissioner. Subsequent failure to comply with any action ordered by the Commissioner will result in the University being referred to the Court of Session. In the most extreme cases a verdict of non-compliance will be treated as a contempt of court. Timescale The Act is expected to receive the Royal Assent sometime in the first half of 2002. Few of its clauses will immediately become law as individual sections will be activated by order of the Scottish Ministers no later than five years from the date of Royal illinois refinance Assent. Latest indications from illinois refinance south of the border on progress with implementing the equivalent legislation which received the Royal Assent on 30 November 2000 are that despite their existing experience in dealing with a public records regime government departments are experiencing problems in making the necessary preparations and that the period of time allowed to them will be extended. The Government had already indicated illinois refinance that it would allow a longer period of adjustment for public authorities with no experience in dealing with public records regimes. It is now being suggested that the access rights to information held by universities will no illinois refinance t be triggered before 2004 at the earliest. This does not of course mean that the Scottish Executive will take an identical approach but does suggest that institutions will be allowed a reasonable period of time to make their preparations. 5. Impact on the Universitys policies and practices In light of the Bill it will clearly be necessary for the University to consider what changes to policies practices and infrastructure will be necessary to ensure compliance. The Freedom of Information Working Group has given initial consideration to the following major issues Policy on openness The Execut | |||||||||||||