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Christopher Graham speaks about FOI and Scotland

Christopher Graham spoke recently at a Holyrood event looking back at ten years of freedom of information law in Scotland. As Information Commissioner, his role includes regulating freedom of information across the UK (including reserved bodies based in Scotland), while Scottish Information Commissioner Rosemary Agnew is responsible for devolved public authorities in Scotland.

We're marking the tenth anniversary of the implementation of both the Freedom of Information (Scotland) Act (FOISA) 2002 and the Freedom of Information Act (FOIA) 2000. Both went live on the same day - 1 January 2005. Scotland, having started two years later, implemented their Act more speedily and caught up.

Ten years later, how are the two regimes delivering for citizens? The Scottish Government minister Joe FitzPatrick MSP said this morning that requesters to Scottish public authorities got some or all of the information they wanted 76% of the time compared with only 63% of requesters to UK public authorities. I don't recognise those figures. Apparently, he was comparing Scottish Government departments with Whitehall. But even if we accept the figures, what does it tell us when you consider that those Whitehall departments will be dealing with the 'reserved matters' that are the responsibility, for example, of the Foreign Office, the Ministry of Defence, and HM Treasury? Indeed, one of those cases is coming the way of my office (ICO) - the refusal of the Treasury to release the report prepared for ministers on the consequences of an UK exit from the EU.

A real difference between the two regimes is scale. The office of the Scottish Information Commissioner (OSIC) has just delivered its 2,000th decision under FOISA. By contrast, my office has issued 7,002 Decision Notices since 2005. We delivered our 2,000th Decision Notice in 2010 - in my first year as Information Commissioner. There can't be many requests to Scottish public authorities that involve consultations with foreign governments before a decision on access can be reached.

I'm not saying we're better, but we are bigger. So it's important that Rosemary Agnew and I work closely together, as do our respective offices, ICO and OSIC. And we do. I was delighted that Rosemary joined us in London recently for our own FOIA at Ten event at the Royal Society of Arts and it's a pleasure to be here in Edinburgh today.

There are a number of things I envy about the Scottish FOI regime which, if we had them down South, would assist the ICO to do an even better job.

First, I envy the resources that OSIC is able to devote to the quarterly compilation of performance statistics from all Scottish public authorities. The ICO's grant-in-aid for FOI has been cut in every year since I've been Commissioner. The Ministry of Justice compiles figures for Whitehall departments and the ICO monitors the ten or so problem authorities on our radar. But I don't have the resources to put in place the sort of comprehensive reporting which itself secures better compliance and promotes good practice.

Secondly, I envy the simple and straightforward appeals mechanism in the Scottish legislation. The Scottish Commissioner's decision is final, subject only to an appeal to the Court of Session on a point of law. Contrast that with the UK system, what the Advocate General Lord Wallace of Tankerness this morning described as an 'assault course'. Appeals to the First Tier Tribunal (Information Rights), followed by further appeals to the Upper Tribunal, and after that further appeals to the courts. There does not need to be a point of law to put to the Tribunal. It's just another opportunity to have a further go. Again, I am having to spend too much of my very limited resources on Tribunals and lawyers. Last year, 293 First Tier Tribunal cases plus a further two cases referred back by the Upper Tribunal and 42 further Upper Tribunal cases. So far this year, it's 179 First Tier cases plus another six referred back from the Upper Tribunal, and 65 further Upper Tribunal cases. And I note that the Smith Commission is proposing to introduce Scottish tribunals for Scottish cases - or is that all cases involving Scottish requesters?

My third reason for envy is that the Scottish Information Commissioner has the constitutional status of what would be described at Westminster as 'an Officer of Parliament'. This gives her the guarantee of independence necessary for a role that, inevitably, from time to time involves telling truth to power. The ICO, by contrast, reports in to the Ministry of Justice and is all too often seen as just another arms-length body (ALB) or non- departmental public body (NDPB). Our sponsor department, the Ministry of Justice, is currently conducting a Triennial Review of the ICO. If you have views on the independence of the ICO you might wish to contribute to the consultation.

Those are the differences. What about the shared challenges? Well, one I'd like to highlight today is Open Data. The Scottish Government is developing a strategy and the UK Government has been pushing Open Data for some time. The Cabinet Office minister Francis Maude had been talking about it today. I'm an enthusiast for Open Data. It enhances FOI. But it doesn't equal FOI and it certainly doesn't replace FOI. Open Data is about structured information. FOI is about all information, whether structured or unstructured. Often the most revealing information is unstructured.

In this connection, we need to be clear about the PSI Directive which has to be transposed into UK law by July 2015. This is about the reuse of public sector information (PSI) which would make public sector bodies allow the reuse of existing and generally accessible documents they create, collect or hold. The effect of this is to make permitting reuse mandatory in most cases and introduces the principle that charges for reuse should be set at marginal cost, with exceptions in certain circumstances. There needs to be a means of redress operated by an impartial review body with the power to make binding decisions on public sector bodies.

The Scottish Information Commissioner and I are at one that it should fall to the ICO to be that review body, with a right of appeal to the Tribunal. There are not many of these cases, but when they arise it makes sense for decisions about access and re-use to be consistent. Tribunals are good at reviewing decisions on the facts presented to them. They are not equipped to investigate situations and apply policy, which is what the ICO does every day. Nor do we need some Open Data Czar to do the job. We do not need any more single-issue commissioners for information rights.

Notes to Editors

1. The Information Commissioner’s Office upholds information rights in the public interest, promoting openness by public bodies and data privacy for individuals.

2. The ICO has specific responsibilities set out in the Data Protection Act 1998, the Freedom of Information Act 2000, Environmental Information Regulations 2004 and Privacy and Electronic Communications Regulations 2003.

3. The ICO is on TwitterFacebook and LinkedIn, and produces a monthly e-newsletter.

4. If you need more information, please contact the ICO press office on 0303 123 9070.

 

Channel website: https://ico.org.uk/

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