RESPONSES ON TOPIC 1 - COVERAGE OF THE ACT (Questions 1-7)
5.1 Over half of the respondees commented on this topic in a variety of ways. These included:
· expression of a general view about coverage of the Act
· specific suggestions for inclusion in or exclusion from coverage
· comments on the ideas around development of gateway criteria for use of Section 5 of the Act
5.2 Detail on the specific suggestions on inclusion/exclusion is provided at Annex 5. The Annex simply summarises the consultation responses, inclusion in or exclusion from the Annex does not indicate the views of Scottish Ministers. Many respondees gave detailed explanations as to why they had made specific suggestions. These comments will be taken into consideration, as appropriate, during any further work undertaken on coverage of the Act.
5.3 Some of the responses in this area indicated how important the duty to "advise and assist" can be in helping applicants to ensure their requests are dealt with appropriately. For example, the wide variety of project and collaborative working across Scottish Public Authorities means that it is not always easy for applicants to know which authority will actually hold the information they require. They may expect to be able to go to the specific project or network when it may be that they could be advised that the "partnership" organisations may actually hold the information required.
5.4 Additionally some responses reflected a lack of awareness of other regulators or more appropriate routes for complaints. The booklet produced by Audit Scotland in 2004 entitled "Route Map : your guide to complaining about public services in Scotland" could usefully warrant greater promotion.
5.6 A number of respondees commented that it was important to ensure that new public authorities should be "automatically" subject to the Act and that changes in structures of bodies should avoid dilution of coverage. ( Explanatory note - There are a number of ways in which new public authorities and bodies are set up. Many bodies are set up through statute and Bill Teams are advised to consider the implications of the Act during the development of the legislation. This ensures that bodies are added to the coverage of the Act through the enabling legislation which creates them. If they are established in any other way then the only way in which they can be made subject to the Act at present is through an order under Section 4 of the Act. This process requires some minimum time periods for delivery and will therefore result in a delay before bodies can be added to Schedule 1 of the Act.)
5.7 A number of respondees held the view that all bodies in receipt of public funding e.g. through grants, should be included in coverage. However there was also significant support for the view that this is not always the best option and may place disproportionate burden on some organisations. Some respondees considered it preferable if the public authorities providing funds simply ensure that they have agreements/contracts in place which allow for information about the activities delivered by the third party to be accessible to the public. It was noted in the responses that this position is already reflected in much of the contracting and grant-giving guidance to public authorities and it was suggested that the responsibility could be reinforced in any revision of the section 60 Code of Practice. A similar view was expressed by some respondees who commented that in some circumstances, other existing mechanisms for regulation might just as effectively deliver on the intentions behind Freedom of Information.
5.8 In terms of the possible section 5 gateway criteria, many of the respondees who commented on the issue found them to be a useful approach. For example, one suggested "The approach to coverage outlined by the Executive is, in the main, proportionate and sensible", another stated that "The proposed draft criteria as laid out in Annex A seem broad enough to be able to adequately capture the range of bodies that should be potentially brought under FOI." However one respondent suggested weighting the criteria. Other respondees found the draft criteria to be an unhelpful approach establishing, for example " a whole new set of hurdles to protect the non-public sector from the onerous task of providing information on their services to the public, whose services they are." A number of respondees reflected that although the criteria might be useful, they might also be too "vague" and that it would be a challenge to apply them consistently and transparently in practice.
5.9 Some respondees expressed views which would require a change to the primary legislation. For example, a suggestion of moving away from a specific listing of bodies covered as those included in Schedule 1 of the Act, designated by a section 5 order or covered by virtue of section 6 to one where inclusion in coverage requires meeting a specific definition. This has been noted, but as indicated previously, would require change to the primary legislation which is not under consideration.
5.10 A number of responses expressed strong views that bodies which have ceased to operate should be removed from coverage. However they also suggested that clear indication should be given that effective arrangements had been put in place to ensure continued access to the records of these bodies (e.g. by transfer to successor body or to the National Archives of Scotland or other archives service.) One respondee commented "The principle and practical effect of the Act should not be defeated by pre-emptive "closure" of public bodies.