Transcript Title Slide - Research Information Network

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 1998
1200 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
email, 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)
•Investigations by Scottish
public authorities
•Relations within the UK
•Law enforcement
•Formulation of Scottish
Administration policy etc.
•Confidentiality (part)
•Prejudice to effective conduct
of public affairs
•National security and defence
•International relations
•Commercial interests and the
economy
•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