Overview of FOI legislation FOI and HE researchers Margaret Keyse Head of Enforcement

Overview How to recognise an information request under the Freedom of Information (Scotland) Act 2002 Responding to a request Overview of the exemptions The Environmental Information (Scotland) Regulations 2004 – key differences FOI north and south of the border

Scottish Information Commissioner Regulates FOISA and the EIRs – but not the Data Protection Act decisions issued 34 decisions involve FE or HE bodies Two decisions involving teaching/research

An information request must … be in writing or in another form capable of being used for future reference , letter, fax, video recording, etc. state the name of the applicant and an address for correspondence no anonymous requests or pseudonyms requests made on behalf of unnamed clients not valid describe the information requested FOISA only covers recorded information information held when the request is received

Timescale for replying –Must “comply promptly” –Maximum of 20 working days –Weekends and bank holidays don’t count (different from public holidays) –No extension allowed

How to respond – options Disclose information in full Can’t comply – information not held (s17) Issue fees notice (s9) Refuse to comply Vexatious or repeated (s14) Excessive costs (more than £600) (s12) Apply one or more exemptions (s16) Neither confirm or deny whether the information is held (s18) Don’t delete or change the information before replying!

Review Unless information provided in full, applicant must be advised of the right to seek a review and to apply to the Commissioner Applicants have 40 working days to ask for review authority can carry out late review if “appropriate” Authority has 20 working days to carry out review confirm the original decision substitute a different decision reach a decision where none has been reached Tell applicant of outcome – and remind can apply to Commissioner (within 6 months)

Absolute exemptions “Absolute”, i.e. not subject to the public interest test Information otherwise accessible (s25) the applicant already has the information it’s easily available to the applicant, e.g. published on internet publication scheme Prohibition on disclosure (s26) Breach of confidence (s36(2)) Court records (s27) Personal data (s38) no right to access own personal data under FOISA third party data – fair and lawful to disclose the data?

Exemptions subject to public interest test Information intended for future publication (n.b. research) Relations within the UK Formulation of Scottish Administration policy etc. Prejudice to effective conduct of public affairs National security and defence International relations Commercial interests and the economy Investigations by Scottish public authorities Law enforcement Confidentiality (part) Personal information (part) Health, safety and the environment Audit functions Communications with Her Majesty etc. and honours

The harm test Most of the exemptions are subject to a harm test Test: “substantial prejudice” in Scotland v “prejudice” in UK How does this work in practice?

Future publication/research Information held with a view to publication 12 weeks of receipt of request reasonable to delay disclosing information Information obtained in the course of, or derived from, a programme of research programme is continuing with a view to the report of the research being published and disclosure would, or would be likely to, prejudice substantially: the programme of research; the interests of any individual participating in the programme; the interests of the authority holding the information; or the interests of any other authority

Origins of research exemption Introduced at stage 3 of FOI Bill Lobbying by Universities Scotland premature disclosure would prejudice disclosure of research which didn’t yet have commercial value premature disclosure would lead to misinterpretation, damaging Scotland’s reputation for excellence in research recruiting international-quality researchers to Scotland significantly would be more difficult if required to disclose incomplete research Vote: 74 for and 34 against

Using the research exemption “Programme of research” designed to distinguish genuine academic research from simple data collection or analysis Can be a one-off piece of research – but must be ongoing Not just scientific research Doesn’t matter if the information which has been requested will be included in the published results Must be an intention to publish - once research finished or published, exemption can’t apply

Commercial interests Trade secrets recipe for Irn Bru and Drambuie wide definition Substantial prejudice to commercial interests of any person (including colleges and universities) the commercial interests exemption in practice: Decision 210/2010 Prof. David Colquhoun and Edinburgh Napier University

Environmental information: definition the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components and the interaction among these elements factors, such as substances, energy, noise, radiation or waste affecting or likely to affect the elements of the environment policies, legislation, plans, programmes, environmental agreements and activities affecting or likely to affect these elements and factors reports on the implementation of environmental legislation the state of human health and safety, conditions of human life, cultural sites and built structures inasmuch as they may be affected by the state of the elements of the environment

Key differences Verbal requests are valid telephone call request made during meeting Wider definition of Scottish public authority includes private bodies carrying out functions in relation to the environment No cost limit under the EIRs but can refuse to deal with requests which are manifestly unreasonable 20 working day period for responding can be extended by up to a further 20 days request must be voluminous and complex EIRs trump other legislation preventing disclosure of EI based on EU Directive 2003/4/EC

Questions