Freedom of Information (Scotland) Act 2002 Time for Compliance Regulations: Consultation Response Paper

Conclusions

We note the broad support for these proposals, particularly from organisations most directly affected by the impending requirement of compliance with freedom of information legislation. The Regulations are intended to be a proportionate response to addressing issues specific to schools due to come within scope of the Act as Scottish public authorities in their own right. We also welcome the support of the Scottish Information Commissioner.

We would not agree that the proposals present an 'extreme measure' and emphasise that they do not automatically increase the response time to 12 weeks. Indeed, we would not anticipate the Regulations coming into play in more than a small number of cases - primarily for requests received close to or during the extended school summer holiday period.

Further, rather than interpreting the proposals as developing a 'two-tier' approach to the legislation, we consider this to be an example of using the built-in flexibility of the Act as originally intended. Indeed, given the concerns expressed by the schools in terms of compliance, it would seem at odds with the policy intention of extending coverage in then making compliance more difficult than necessary when the option of bringing forward Regulations designed for such circumstances is available.

Local Authority Schools

We note the comments from local authorities, who, while supportive of the proposals, considered the regulations should also apply to them to the extent that they respond to requests involving schools' information.

In their responses the local authorities highlighted difficulties in accessing school records during holiday periods as well as problems in being able to accurately interpret information particularly in the absence of relevant staff. Indeed, responses from two local authorities acknowledged that council responses concerning their schools were issued late for such reasons.

We acknowledge that, at times, local authorities are likely to experience practical and administrative difficulties in responding to school related information requests, particularly those received over school holiday periods. We are also aware that other legislation, for example, the Pupils' Educational Records (Scotland) Regulations 2003 makes specific allowance for the term-time working arrangements of schools in requiring responses within school days.

However, we also note that, unlike the intended status of grant-aided and independent special schools, local authority run schools are not separate public authorities for the purposes of freedom of information legislation. Those schools coming within scope of the Act will have responsibility for responding directly to requests - rather than as part of a local authority. In this respect they will operate in similar fashion to the maintained school sector under equivalent UK freedom of information legislation. As such, under regulations similar to those being proposed here, schools elsewhere in the UK are permitted to respond to information requests in effect in terms of school days (again, up to a maximum of 60 working days) ^[4] .

We are sympathetic to problems encountered by local authorities in handling specific school related information requests. However, over 11 years into the operation of the Act, in the absence of firm evidence of particular difficulty in this regard, we are not persuaded that there is a strong case to propose similar regulations making allowance for the handling of school related requests received by local authorities.

Verification Process

We note the alternative proposal of the Campaign for Freedom of Information in Scotland that section 73 of the Act should be amended (which itself would require primary legislation). The CFOIS proposal, in discounting the days on which the grant-aided and independent special schools are closed during an 'academic year' from a calculation of the 'response time', would in practice seem to mirror the proposed regulations (assuming the broadest possible definition of academic year).

However, we acknowledge that transparency around 'verification' of when a school is recognised as being organisationally closed i.e. a non school day, will be necessary in the interests of clarity and in being able to calculate correct response timescales.

School term dates - and therefore school holidays - are generally known well in advance and we do not consider this to be an issue of difficulty. Moreover, it is not uncommon for schools to be physically closed at holiday periods with administrative staff working term-time only hours. However, there may also be times when a school is open for certain reasons during school holiday periods and, at such times, it may be reasonable to expect schools to process information requests.

We therefore propose to revise the Section 60 Code of Practice, which sets out the 'best practice' public authorities are expected to follow, to reflect the existing legislative requirement to respond to information requests 'promptly'. In addition, in respect of those schools coming within scope of FOISA, we propose to include in the Code the proviso that, if there are staff with the appropriate skills, knowledge and level of authority available in a school it would be good practice to respond to any outstanding FOI requests even if the Regulations could apply.

As the independent regulator, it is for the Scottish Information Commissioner to enforce both the Regulations and the Code of Practice. This will include, if necessary, seeking verification from a school that they were closed and that the Regulations were being correctly applied - and that, in addition, no staff with appropriate skills, knowledge and authority were available.

Environmental Information (Scotland) Regulations

As noted in the responses from the Scottish Information Commissioner and the CFOIS, these proposals will not - and cannot - amend the 20 working day response time for those requests handled in terms of the Environmental Information (Scotland) Regulations 2004 ( EIRs) ^[5] . This is due to the EIRs being derived from European law (specifically Directive 2003/4/ EC on public access to environmental information). This in turn contrasts with subject access requests made under the Data Protection Act 1998 (reserved legislation) which must be issued within 40 calendar days.

Impact Assessments

As indicated in the consultation paper, comments were invited in respect of the impact assessments prepared as part of the earlier substantive consultation on extension of coverage. Those comments received have been incorporated into revised documentation available, along with related information, on the Scottish Government's Freedom of Information webpages ^[6] .

We note the concerns about the potential impact of the regulations on those requesting information from the schools - potentially including pupils attending the schools and their families (though freedom of information is a right available to all).

However, in practice, given the low numbers of requests anticipated, we would not expect any significant impact on response timescales for a requestor (other than, potentially, over the extended summer holiday period). Moreover, revising the Code of Practice to highlight promptness as well as it being good practice to respond even if the Regulations apply should help mitigate against undue delays in response.

Next steps

Having considered the various issues raised during this consultation exercise we confirm our intention to bring forward Time for Compliance Regulations varying the request and review response times for grant-aided and independent special schools.

However, in tandem with the Regulations, we also intend to revise the Section 60 Code of Practice. The revised Code will emphasise the requirement to respond promptly, and that, if staff are available outside term times, it would be considered as good practice to respond to requests even if the Regulations apply.

Subject to Parliamentary approval, the Regulations, along with the revised Code of Practice, will come into force on 1 December 2016.

We propose to include assessment of these Regulations (including any equality issues arising) as part of the general review - after one year of operation - of the order extending coverage of the Act due to come into effect on 1 September 2016.