Taking freedom seriously

Scottish public authorities will not need reminding of the significance of the coming new year. The Freedom of Information (FoI) regime goes live on 1 January, and Kevin Dunion, the Scottish Information Commissioner, is determined to see it make an impact.

Some have suggested that the legislation has too many get-out clauses to be an effective check on government. But Dunion, a former campaigner with Oxfam and Friends of the Earth – dealings with authorities wrongfully withholding environmental information sparked his interest in FoI – says the Scottish Act of 2002 is “actually pretty good”. “If you look at international comparisons it’s at the stronger end of the spectrum”, he maintains – not least through having an independent commissioner with powers of enforcement. And of the 17 categories of exempt information, most are subject to a public interest test and some also require “substantial prejudice” to the protected interest.

In fact there are two regimes, albeit with much in common – Dunion plays down a suggestion that the UK protections under the FoI Act of 2000 (in which “prejudice” does not require to be “substantial”) are weaker. His own remit extends to public authorities based in Scotland, but not to UK agencies that operate here. These come under the scrutiny of the UK Information Commissioner, Richard Thomas – also responsible for Data Protection Act issues. Dunion accepts that misdirected enquiries are likely, but is working closely with Thomas’s office to develop an agreed practice for passing these on.

“But if any member of the public is in doubt and they phone us, we’ll handle that over the phone. And it may be that the complaint should go to the Scottish Public Services Ombudsman for example, so we’re also developing a memorandum with them. Under the leadership of Audit Scotland we’re producing a route map to complaining in Scotland – a publication which will show people where they should go if they have any complaint about public authorities in Scotland.”

Accessibility is a principal concern: it shouldn’t need a legal adviser to bring a complaint, he says. “If you’ve got a concern about a public authority’s response you don’t have to know the law in detail or present your case in detail. You make the complaint to me and it’s our job to investigate and determine whether or not the authority acted properly.”

Open to the competition

In some respects, however, the legal profession will need to be on its toes. Advising on possible exemptions has to be done within the 20 days allowed for responding to a request – and the cost of advice cannot be passed on. There are also significant implications for contracts with public authorities: confidentiality clauses will have to pass both the “public interest” and the “substantial prejudice” tests if contract details are to be withheld from scrutiny by competitors or disappointed tenderers. “The guidance public authorities will be operating under is not to enter into confidentiality clauses as a matter of course but to determine whether or not any restrictions are justified.” Indeed Dunion expects contractual matters to form a good proportion of his initial caseload: in Ontario, requests from companies actually outstrip those from individuals. “That’s particularly high, but there’s no doubt about it, 10-20% of requests coming from commercial companies is a feature around the world.”

Access to medical records, however, remains separate: under the FoI Act medical practices are public authorities, but “only in respect of information relating to the provision of those services”. That is, use of public funds in running the practice, personnel procedures, “the kind of information that will be required of any public authority”, Dunion explains.

While some authorities face “a fairly tall order” to gear themselves up in time for January, Dunion believes from an early survey of preparedness that most are taking a positive attitude to the Act. “They saw real benefits for Scotland and indeed for themselves, finally getting to grips with their records and document management and also producing material proactively to build public trust about their activities.” What Dunion remains concerned to ensure is “that they’ve trained all the relevant staff, and that includes frontline reception staff and enquiry staff who will have to be familiar with what’s contained in the publication scheme so requests are turned around quickly, and also that they have actually got their house in order in terms of retrieving information in response to requests”. He warns there will be no honeymoon period – “people have rights from 1 January and it’s up to the authorities to be ready”.

Appointed in February 2003 and now with a staff of 13, Dunion’s major task to date has been approving the publication schemes required of the 10,000 or so bodies caught by the Act. That has been made easier through the development of model schemes for different types of authority – though local councils have decided to prepare their own bespoke schemes. “Our job has been not to write the schemes for them, but to make sure they meet a certain standard, and we’re content that they all meet the high standards that we want to see even though they’re written in a way that fits the nature of the organisation and the way they want to publish material.”

It’s a tough call

When the appeals start arriving – there won’t be an immediate rush as applicants have first to invoke the statutory review procedure with the authority – the crucial decision of whether the public interest lies in disclosing or withholding is Dunion’s call. How will he weigh it up? There is quite a lot of literature on the subject, he says, but at the end of the day, “There’s no shying away from it, you’ve got to come to a view. It isn’t a matter of fact: there’s a view to be held.”

An early taste of what might lie ahead came with the controversy over the Reliance prison escort services contract. It was Dunion who stipulated the timescale by which details of the contract should be made public – applying a code developed under the Scottish Office and voluntarily adopted by the Scottish Executive, from which he had agreed to deal with any complaints arising. He is now investigating a complaint that financial information in the contract has been withheld, although the code (to be superseded by the Act) only provides for recommendations rather than enforceable decisions.

One prediction that can be made with some confidence is that Dunion’s office will be alert to any signs of backsliding by authorities, in the light of research unveiled to an international meeting of commissioners which showed that up to 20% of FoI requests are simply ignored or the response delayed beyond the period allowed. If appeals are made, he expects authorities to respond promptly to his requests for information. “What’s unusual about the legislation in Scotland”, he points out, “is the indication [section 49(3) of the Act] that we should come to our decisions within four months. This is a particularly tough expectation. If you look at Queensland which in some respects is regarded as the gold standard – it has a well established scheme – the commissioner there expects to get through less than 50% of cases within six months and only 90% within a year, so to get through 100% of cases in Scotland within a four month period we’re going to be extremely vigilant about any evidence of authorities not doing the technical things properly, such as not complying in time.”

Regulations are still awaited, but it appears that Scots won’t have to pay over the odds to exercise their new rights. The probable maximum charges will see the first £100 worth of information provided free, and the next £500 at 10% – so a total cost to the authority of £600 would mean a charge of £50. Beyond that the authority has the option of not releasing information, or charging anything up to the full cost in excess of £600. Staff time for extracting information or collating materials will be allowed at cost up to £15 an hour: “You can charge for the actual cost of photocopying and sending it to the applicant but what you can’t charge are costs for deciding whether or not any exemption applies, and you can’t charge for searching for the information. So if you’ve got chaotic records management you can’t pass the cost of that on.”

Making sure it happens

Along with enforcement, Dunion has the statutory role of ensuring public awareness. “Some commissioners don’t have any such duty, for example in Ireland, but we do, and we take that seriously, and I don’t think it’s good enough to say that simply because there have been no complaints or no appeals, everything must be going swimmingly. If people are unaware of their rights or are not confident about the procedures for invoking their rights they are effectively disempowered.” As well as planning general promotional material when the Act comes in, Dunion is targeting ethnic minority, disability and poverty groups and others, “so if authorities don’t receive complaints and requests in the first period, I think that over a period of time as people become more familiar, more confident, they will do. Certainly my experience of the Environmental Information Regulations is such that the absence of anybody you can reasonably appeal to is a major inhibitor to people doing anything. If the authority simply refuses to give you the information there’s not much you can do about it. And I think that will certainly change by the existence of my office.”