Assessment report. Kevin Dunion Scottish Information Commissioner. Kinburn Castle Doubledykes Road St Andrews KY16 9DS Tel:

Assessment report Scottish public authority: Transport Scotland Dates of on-site assessment: 24 and 25 February 2010 Assessors from OSIC: Claire Sigsworth and Avril Mills Date of publication: 25 August 2010 Kevin Dunion Scottish Information Commissioner Kinburn Castle Doubledykes Road St Andrews KY16 9DS Tel: 01334 464610

Executive Summary and Recommendations This report sets out the findings of an assessment of the practice of Transport Scotland in relation to its obligations under the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information (Scotland) Regulations 2004 (EIRs), carried out by the Office of the Scottish Information Commissioner. The assessment considered all aspects of Transport Scotland s handling of information requests in relation to compliance with FOISA, the EIRs and the associated Codes of Practice. Transport Scotland is an executive agency of the Scottish Ministers, and this assessment was conducted with the involvement and co-operation of both Transport Scotland and the Scottish Government s Freedom of Information Unit (the FOI Unit). The FOI Unit works closely with Scottish Government directorates and agencies, providing central guidance and training on FOISA and the EIRs, as well as case-specific advice on request handling. Since it plays a central role in supporting Transport Scotland s request handling, the assessors also considered and made recommendations with respect to the practical arrangements, guidance and training that are managed by the FOI Unit. During the assessment, various areas of good practice in the way in which Transport Scotland handles information requests were identified. In particular, the assessors noted that a positive culture with respect to access to information was being driven from a senior level. They found good systems for the administration of information requests, which, in conjunction with guidance and support provided by the FOI Unit provide a sound basis for compliance with FOI. It was also noted that Transport Scotland has a good publication scheme in place and recognises proactive disclosure as a way of achieving openness and limiting the impact of information requests. There were some areas of Transport Scotland s practice identified where there was scope for improvement. In particular, the assessors considered that requests for environmental information were often not recognised as such and instead handled under FOISA. This created the potential for request handling failing to comply with the requirements of the EIRs. The assessors also noted the required timescales were being missed in approximately 20% of cases, and noted that delays were often incurred while awaiting Ministerial clearance. The assessors recommendations in light of these observations, and on other areas identified for improvement are set out below. Recommendations PRIORITY 1 Immediate action required Recommendation Number 1 That the FOI Unit amends the wording in the template letter used to provide notice of the outcome of a review to include reference to the right of appeal to the Court of Session. (paragraph 4.55) 2

2 That Transport Scotland reminds staff of the requirements with respect to the content of notices issued in response to information requests, particularly where information is either not held or is being withheld. (Paragraph 4.55) 3 That Transport Scotland takes steps to ensure that responses to information requests address the actual information requested, except where the requestor has exercised their right to request the provision of that information in the form of a digest or summary. (paragraph 4.55) PRIORITY 2 Medium term action to be completed within 3 months Recommendation Number 4 That Transport Scotland (in consultation with the FOI Unit as appropriate) takes steps to identify the business areas where information requests are most likely to fall under the EIRs and to communicate its conclusions within future training and guidance for staff. (paragraph 4.26) 5 That Transport Scotland (again in consultation with the FOI Unit as appropriate) develops internal guidance for staff on its approach to handling requests under FOISA or the EIRs. (paragraph 4.26) 6 That the FOI Unit revises its practical guidance on request handling to provide additional guidance on the EIRs, particularly in areas where the EIRs differ from FOISA. (paragraph 4.26) 7 That the FOI Unit either updates its exemption guidance to include advice on the application of exceptions within the EIRs or (given that these documents are now somewhat out of date) withdraws this guidance and instead refers Scottish Government staff to the Commissioner s series of briefings on FOISA and the EIRs. (paragraph 4.26) 8 That the FOI Unit develops guidance on the recognition of environmental information. (paragraph 4.26) 9 That the FOI Unit delivers a training session tailored specifically for Transport Scotland staff (and particularly for reviewers, lead officers and regular request handlers), to build knowledge of EIRs and their applicability to information requests it receives. (paragraph 4.26) 10 That Transport Scotland considers what steps might be taken to improve performance in relation to compliance with timescales within FOISA and the EIRs and takes action as appropriate. In particular, Transport Scotland (or the FOI Unit more generally if this is preferable) should consider ways in which officials can work with Ministers to avoid breaches of timescales as a result of the clearance process. Practical steps might include allowing a longer period of clearance, or issuing reminders of the up-coming compliance deadline where a response is not received within the expected timescale. (paragraphs 4.33 and 4.34) 11 That guidance on the circumstances within which timescales might be extended under the EIRs is provided to staff. (paragraph 4.37) 3

PRIORITY 3 Action to be completed within 6 months Recommendation Number 12 That Transport Scotland (or the FOI Unit) reiterates guidance to staff about its records management practice with respect to information request handling and considers monitoring this practice. If it is accepted practice to save records in other locations, the assessors suggest that staff are asked to add a note to the request file within the tracker indicating where relevant records can be located. (paragraph 4.16) 13 That Transport Scotland takes steps to establish whether staff regularly receiving or handling information requests have undertaken appropriate training on FOISA and the EIRs, and to address any identified training needs. (paragraph 4.17) 14 That Transport Scotland takes steps to update applicants in situations where intended publication dates are revised after information has been withheld on the grounds that publication is anticipated within 12 weeks. (paragraph 4.66) 15 That Transport Scotland takes steps to increase awareness of the circumstances in which information requests can be transferred between authorities, and the procedure for doing so. (paragraph 4.74) 1. Scope and objectives of assessment 1.1 This report sets out the findings of an assessment of Transport Scotland by representatives of the Scottish Information Commissioner (the Commissioner). The purpose of the assessment was to establish whether Transport Scotland is complying with good practice in dealing with requests for information in terms of the Freedom of Information (Scotland) Act 2002 (FOISA), the Environmental Information (Scotland) Regulations 2004 (EIRs) and the associated Codes of Practice 1 and to identify and make recommendations in relation to areas where procedure and practice were not in line with expected good practice. 1.2 The assessment considered all aspects of Transport Scotland s handling of information requests. The following areas were identified for particular consideration and discussion following a review of Transport Scotland s response to the pre-assessment questionnaire, and research on published information regarding its handling of information requests. Identification and handling of requests which are judged not to be valid in the light of a recent Court of Session judgement. Identification of environmental information and handling of cases where the information sought is either partly or wholly environmental info. 1 The relevant Codes of Practice are the Scottish Ministers Code of Practice on the Discharge of Functions by Public Authorities Under the Freedom of Information (Scotland) Act 2002 (referred to in this report as the section 60 Code of Practice ) and the Code of Practice on the Environmental Information (Scotland) Regulations 2004 for Scottish Public Authorities (referred to in this report as the section 62 Code of Practice ). It should be noted that the assessment did not assess compliance with the Freedom of Information (Scotland) Act Code of Practice on Records Management (commonly referred to as the section 61 code ). 4

Timescales for handling requests and systems to ensure these are met Use of the exemption in section 27 of FOISA (information intended for future publication). Training and guidance for Transport Scotland staff 1.3 Transport Scotland is an executive agency of the Scottish Ministers. It is not a public authority in its own right for the purposes of compliance with FOISA and the EIRs, but falls within the ambit of the Scottish Ministers, who are collectively a Scottish public authority, responsible for compliance across the central Scottish Government Directorates and agencies. 1.4 The Scottish Government s Freedom of Information Unit (the FOI Unit) provides guidance, training and support on FOISA and the EIRs for staff across the Scottish Government and its agencies. Requests received by Transport Scotland are logged and monitored within a tracking system managed by the FOI Unit. Case-specific advice regarding request handling is also provided by the FOI Unit. 1.5 Given the role of the FOI Unit and its systems in supporting Transport Scotland s request handling, this assessment has also considered and made recommendations with respect to the practical arrangements, guidance and training that are managed by the FOI Unit, where relevant. 2. Assessment process 2.1 Transport Scotland was notified of the Commissioner s intention to conduct an assessment in a letter dated 14 April 2009. Claire Sigsworth and Avril Mills (the assessors) conducted the onsite assessment on behalf of the Commissioner on 24 and 25 February 2010. During these two days, they met with the following members of staff: David Middleton, Chief Executive Richard Scott, Director of Business Improvement and Corporate Services Stephen Bruce, Scottish Government FOI Unit Stephen Orr, Business Improvement Officer Sharon McIlroy & Jim Richardson, FOI decision-makers Alex Ramage, FOI lead officer and reviewer Gavin Boyd & Lindsay Williamson, General enquiries, Chief Executive s Office Lucy Adamson, Communications Team Gerry Scullion, Website Manager 2.2 In conducting the assessment, the assessors worked through a list of questions which had been prepared in advance of the on-site assessment, based on the responses received to the pre-assessment questionnaire, together with the policies and procedures Transport Scotland had provided in advance of the assessment. Additional questions arose in the course of discussion and from consideration of the handling of individual requests. The assessors also reviewed records relating to the handling of a sample of 45 cases that had been selected for consideration in advance. 2.3 The assessors also made reference to the assessment checklist published within the Commissioner s Investigations and Enforcement procedures 2 to ensure that each relevant area of practice had been considered and appropriate evidence gathered. Transport Scotland 2 http://www.itspublicknowledge.info/uploadedfiles/investigation_enforcement_procedures_05_02_10.pdf 5

and the FOI Unit cooperated fully and openly with the assessment process, providing full access to systems for handling requests and further providing the assessors with the opportunity to meet with the staff responsible for various functions throughout Transport Scotland. 2.4 At the end of the assessment, a concluding meeting was held with David Middleton, Richard Scott, Stephen Bruce, and Stephen Orr. This meeting provided an opportunity to feed back the key findings of the on-site assessment. The feedback provided in that meeting is reflected and expanded upon in the points raised below. 3. Overview: culture and practice 3.1 The Assessors were satisfied that Transport Scotland has a general culture of openness and transparency. Compliance with FOISA and EIRs is overseen at Director level, and has a high profile within the organisation. Proactive publication is used effectively as a way of achieving openness while reducing the administrative burden of request handling. 3.2 The assessors found that Transport Scotland takes its obligations under FOISA and the EIRs seriously and seeks to respond to requests for information fully and promptly. In doing so, it is supported by the FOI Unit, which provides specialist support for request handling, and monitors compliance across the Scottish Government. Both Transport Scotland and the FOI Unit engaged fully and constructively with the assessment process. 3.3 While the assessors found much evidence of good practice, they identified scope for improvement as some practices were not fully compliant with the statutory requirements laid down in FOISA and the EIRs, or good practice as set out in the Codes of Practice. Recommendations are set out in the body of this report, and in tabular form at the end of the report and in the executive summary. The assessors would note that, by the time of finalising this report, action had already been taken or was ongoing to address each of the recommendations below. 4. Detailed outcomes and findings 4.1. The following sections provide details of some of the main areas of practice assessed and set out the assessors findings. The sections below focus on the main areas in which good practice was identified and also on the areas where improvements could be made, and any associated recommendations. Infrastructure, request handling and administrative arrangements 4.2 It is important to note that Transport Scotland operates within the framework of procedures and guidance provided by the Scottish Government FOI Unit. 4.3 In line with the Scottish Ministers general director led approach, Transport Scotland s Chief Executive holds overall responsibility for performance and monitoring of compliance with FOISA and the EIRs in Transport Scotland. In practice, this responsibility is delegated to the Director of Business Improvement and Corporate Services. The Board of Transport Scotland 6

(which consists of the Chief Executive, six directors, and two non-executive directors) discusses FOISA and the EIRs twice a year. 4.4 Stephen Orr (Business Improvement Officer) is responsible for day-to-day co-ordination of request handling within Transport Scotland, and the preparation of internal reports. Transport Scotland also has an internal knowledge management group which considers issues relating to FOISA and the EIRs at each meeting. Each area in Transport Scotland has a lead officer, who acts as a source of expert advice on FOISA and the EIRs. The FOI Unit also provides advice on the handling of individual requests when asked to do so. 4.5 In responding to information requests, Transport Scotland follows guidance and procedures developed centrally by the FOI Unit, which includes: practical guidance notes a document setting out procedures for dealing with information requests or reviews, and providing sample wording and standard letters. exemption guidance a body of guidance developed in 2004, which provides advice on the interpretation of each of the exemptions in FOISA. working assumptions setting out broad assumptions about the handling of requests for a number of specific types of information. These provide a framework for developing a response, while making clear that each request and the information under consideration must be treated on its own merits. 4.6 The FOI Unit also provides training courses which can be attended by staff from any Scottish Government Department or Agency. There are no central records of attendance at these courses, however, and neither the FOI Unit nor Transport Scotland could confirm how many Transport Scotland staff had attended these courses. However, it was understood that all lead officers and reviewers had undertaken the training offered by the FOI Unit. 4.7 Transport Scotland manages its information requests using a request tracking system managed by the FOI Unit, and used by all of the Scottish Government directorates and most agencies. This system is used to record correspondence and other records relating to a request. It automatically calculates response times and issues reminders regarding this timescale to the case officer and their manager. The tracker allows detailed reporting on individual agencies or directorates, or across the Scottish Government as a whole. The FOI Unit produces a report weekly on requests across all directorates and agencies, which also highlights overdue cases. This report is circulated to Ministers and Directors General and Directors. 4.8 Within Transport Scotland (and across the Scottish Government as a whole) information requests are handled by the policy area to which they relate. Requests are received through a number of channels, including the Scottish Government s central enquiry unit, Transport Scotland s press office, ministerial correspondence, or the general contact addresses listed on Transport Scotland s website. Where information requests are not received directly by staff in the relevant area, they will generally be received by (through the general contact channels) or passed to the Chief Executive s Office for allocation. 4.9 The official to whom the request is allocated (the case officer) is then responsible for logging, and preparing a response to the request, seeking input from colleagues, or seeking approval where relevant. Responses to requests from the media are channelled via the press office, but otherwise, the response will be issued by the case officer. 4.10 Decisions about releasing or withholding information are generally taken by the case officer, who may liaise with a lead officer, their line manager, the appropriate Transport Scotland 7

Director or the FOI Unit in the decision making process. Clearance will generally be sought from a branch head prior to issuing a response. 4.11 In some cases, clearance will be sought from a Director or Minister prior to the issue of a response. The role of Ministers in the request handling process is discussed in more detail below. Conclusions 4.12 Overall, the assessors were satisfied that Transport Scotland s arrangements for handling information requests were sound. They considered that the Director of Business Improvement and Corporate Services was providing strong leadership and driving a positive culture with respect to compliance with FOISA and the EIRs, and that staff across the organisation were aware of systems for handling requests and sources of expert advice both within Transport Scotland and from the FOI Unit. 4.13 The assessors were satisfied that staff were generally able to recognise requests for information when they were received, and that the system of those received through general channels being directed via the Chief Executive s Office ensured that they were allocated appropriately for handling by the most relevant department. 4.14 The assessors also noted that the request tracking system used by Transport Scotland supports both effective administration of individual requests and reporting for management purposes. However, they noted with respect to a number of the requests reviewed that the information stored within the tracker casefile was incomplete. This made it difficult to consider fully the request handling process and particularly to establish whether adequate searches for relevant information were undertaken and recorded. It also prompted concerns that it might be difficult for a reviewer, or a person other than the case officer (who might need to progress a request in their absence) to fully understand the steps taken in relation to the request. 4.15 Transport Scotland and the FOI Unit both acknowledged that there were gaps in the records stored within the tracker casefile, and noted that requests had been issued to staff to ask them to ensure that records were saved appropriately. However, it was explained that in practice, while records would sometimes be stored outside of the tracker casefile, they could be located and this did not lead to practical problems. 4.16 The assessors recommend that Transport Scotland (or the FOI Unit) reiterate guidance to staff about its records management practice with respect to information request handling and consider monitoring this practice. If it is accepted practice to save records in other locations, the assessors suggest that staff are asked to add a note to the case entry within the tracker indicating where relevant records can be located. 4.17 The assessors also recommended that Transport Scotland take steps to establish whether staff regularly receiving or handling information requests have undertaken appropriate training on FOISA and the EIRs, and to address any identified training needs. Recognising requests for environmental information 4.18 Where a request seeks environmental information, it should be responded to in terms of the EIRs, which differ from FOISA in a number of ways. Failure to identify that a request seeks environmental information can therefore lead to failures to comply with the requirements of the EIRs. 8

4.19 For example, under FOISA information is exempt from disclosure if the authority which holds it is intending to publish it within twelve weeks of the information request being submitted 3. Under the EIRs there is no equivalent exception from disclosure (although there is an exception 4 which allows an authority to withhold environmental information which is still in the course of completion). Therefore, a response to a request for (complete) environmental information that withholds the information solely on the grounds that it is intended for future publication is likely to be in breach of the EIRs. 4.20 Other areas where EIRs differ from FOISA include the provisions relating to costs (there is no upper cost limit under the EIRs while there is under FOISA), the definition of whether information is held (information that is held by an authority on behalf of another person is held for the purposes of the EIRs, but not for the purposes of FOISA), and whether there is an exemption from disclosure where a separate statutory prohibition on disclosure exists (there is not under the EIRs but there is under FOISA. 4.21 Transport Scotland s pre-assessment questionnaire showed that it handled only a small proportion of its information requests under the EIRs. For 2009, this indicated that 34 information requests were considered under the EIRs, compared with 152 under FOISA. 4.22 When reviewing a sample of requests on site (the majority of which had been handled under FOISA, but some correctly dealt with under the EIRs) the assessors reached the view that a number of those handled under FOISA actually sought environmental information. The assessors also identified some inconsistency with respect to the handling of requests under FOISA or the EIRs. While acknowledging that handling a case under FOISA rather than the EIRs will not lead to any difference in outcome where information is simply disclosed, the assessors viewed a number of cases where different considerations would have applied had the case been recognised as a request for environmental information. Conclusion 4.23 The assessors considered that the nature of Transport Scotland s work (which includes the management of large scale infrastructure projects and of the trunk road and rail networks) makes it likely that a significant proportion of its information holdings will be environmental information for the purposes of the EIRs. 4.24 However, the assessors identified weaknesses within Transport Scotland s request handling with respect to the identification and appropriate handling of requests for environmental information, which create a significant risk of non-compliance with the EIRs. 4.25 They considered that this weakness was partly a result of the emphasis given within the FOI Unit s procedures and guidance to FOISA rather than the EIRs, and also due to a lack of clear understanding within Transport Scotland of the definition of environmental information, and its application to the information held by Transport Scotland. 4.26 To address these concerns, the assessors made the following recommendations for action by both Transport Scotland and the FOI Unit, to be taken forward as a high priority. Transport Scotland (in consultation with the FOI Unit as appropriate) should take steps to identify the business areas where information requests are most likely to fall under the EIRs and to communicate its conclusions within future training and guidance for staff. 3 Section 27 of FOISA 4 Section 10(4)(d) of the EIRs 9

Transport Scotland (again in consultation with the FOI Unit as appropriate) should develop internal guidance for staff on its approach to handling requests under FOISA or the EIRs The FOI Unit should revise its practical guidance on request handling to provide additional guidance on the EIRs, particularly in areas where the EIRs differ from FOISA. The FOI Unit should EITHER update its exemption guidance to include advice on the application of exceptions within the EIRs OR (given that these documents are now somewhat out of date) withdraw this guidance and instead refer Scottish Government staff to the Commissioner s series of briefings on FOISA and the EIRs. The FOI Unit should develop guidance on the recognition of environmental information. The FOI Unit should deliver a training session tailored specifically for Transport Scotland staff (and particularly for reviewers, lead officers and regular request handlers), to build knowledge of EIRs and their applicability to information requests it received. Timescales for compliance 4.27 In terms of FOISA and the EIRs, authorities have 20 working days in which to respond to requests for information and requests for review 5. The pre-assessment questionnaire showed that Transport Scotland failed to respond to requests within the statutory 20 working day timescale in approximately 20% of cases. 4.28 During the on-site visit the assessors viewed a number of cases where the timescales had not been met, and found that the reasons for the timescale breaches varied. In some cases delays had occurred because officials had failed to progress the request. In another case, a Director had indicated that a reply should wait until a meeting on the subject had taken place. However, the most common reason identified where the required timescales had not been met was that the case had been delayed awaiting Ministerial clearance. 4.29 The FOI Unit estimated that across the Scottish Government, approximately 10% of information requests will be submitted to a Minister for clearance. In some cases, the Minister will express an interest in the request, having identified it within the weekly reports circulated by the FOI Unit. In other cases, the decision to seek clearance will be taken by officials given their understanding of an individual Minister s level of interest in request handling, the nature of the request, or its subject matter. 4.30 There is no specific guidance or procedure in place to indicate which cases will be subject to Ministerial clearance. However, the FOI Unit explained that, under the Director-led approach to monitoring and support of request handling, individual Directors were responsible for being aware of their Minister s preferences in relation to clearing requests, and for communicating these to their staff. 4.31 For requests across the whole of the Scottish Government, the Ministers have asked officials to ensure that requests for clearance are sent to them at least three working days before the deadline for response. Ministerial clearance was sought in 13 of the 45 requests considered by the assessors. In each of these, the clearance process involved the Minister simply reviewing the proposed response (and in one case also the information under consideration) 5 Sections 10 (Time for Compliance), 21 (Review by Scottish public authority) of FOISA and regulations 13 (Refusal to make information available) and 16(Review by Scottish public authority) of the EIRs. 10

and agreeing to its terms before it was issued. In one case, minor drafting changes were made to the letter. However, the process is clearly (and quite appropriately) designed also to prompt further discussion and/or to enable a response to be revised if a Minister disagrees with its terms. The FOI Unit indicated that it is rare for a Minister to disagree with a proposed response. 4.32 Within the 13 requests reviewed, the three day period requested by the Ministers was generally adhered to by officials. However, while seven of the responses were cleared in advance of the required response date (and generally within two days), six responses had been issued outwith the required timescale after Ministerial clearance was given only after the response date had passed. Conclusion 4.33 The assessors have noted that although Transport Scotland responds to most of its requests within the required timescales, it is failing to comply with the requirements of FOISA/EIRs in relation to a significant minority. They therefore recommend that Transport Scotland consider what steps might be taken to improve performance in this area and take action as appropriate. 4.34 The assessors recommend in particular that Transport Scotland (or the FOI Unit more generally, if it would be more appropriate to address this issue as a matter for the whole Scottish Government) consider ways in which officials can work with Ministers to avoid breaches of timescales as a result of the clearance process. Practical steps might include allowing a longer period for clearance, or issuing reminders of the up-coming compliance deadline where a response is not received within the expected timescale. Extension of timescales under the EIRs 4.35 Under the EIRs 6 (but not FOISA), the period for responding to an information request can be extended to 40 working days if (both) the volume and complexity of the information makes it impracticable for the authority to reach a decision or otherwise respond within 20 working days. Where the timescale is extended, the authority must notify the requestor of the extension and the reasons for this within 20 working days. 4.36 The assessors reviewed three requests where Transport Scotland had extended the timescales for compliance under the EIRs. While they did not have the opportunity to review the information that fell within the scope of these requests, they had some concerns about whether proper consideration had been given to both the volume and complexity of that information as opposed to the request. In one case, for example, the case notes referred to the request being complex. The assessors agreed that the requester had submitted a complex set of requests, but it was not clear that the information itself was both voluminous and complex. Conclusion 4.37 Although the assessors did not draw any conclusions as to whether the extension of timescales was appropriate in the particular cases reviewed, they considered this to be an area where there was some risk of misapplication by staff. They recommend that guidance on the circumstances within which timescales might be extended under the EIRs is provided to staff. 6 Regulation 7 (Extension of time) 11

The review process 4.38 Neither FOISA nor the EIRs are prescriptive about the form of review that should be undertaken following a request for review 7. However, the Section 60 and 62 Codes of Practice provide guidance as to good practice with regard to the conduct of review, which includes: Authorities should have in place procedures for handling reviews, which should be fair and impartial and enable different decisions to be taken if appropriate The procedures should be straightforward and capable of producing a decision promptly and in line with the statutory timescales A review should be handled by a person who was not involved in the original decision. 4.39 Transport Scotland receives only a small number of requests for review. Only 15 were received in 2009, compared with 186 information requests. Requests for review are generally received by the Chief Executive s Department and from there passed on to the Business Improvement Officer for allocation to a reviewer (who will generally work in a different policy area from the one that dealt with the initial request). 4.40 At the time of the assessment, Transport Scotland was in the process of considering its approach to allocating reviews, having found that using a number of lead officers had imposed a burden on a small group of individuals. The assessors were informed more reviewers were to be trained to make a larger group of individuals available to undertake reviews. 4.41 The process followed at review mirrors that undertaken when first responding to the request. The reviewer updates the case within the request tracker to log the review request and goes on to review all aspects of the initial request handling, discussing the matter with the original case officer, and consulting others to inform the decision making process. It was clear that the procedures followed allow a reviewer to fully reconsider the case and to reach a different conclusion from the original case officer. 4.42 It was noted that the process of seeking clearance would also be followed in relation to review outcomes. Given that the same process of Ministerial clearance is followed in both the initial request handling and review processes, the assessors asked whether reviewers might be inhibited from reaching a different conclusion in a case where a Minister had expressed a particular view in relation to the initial response. Transport Scotland and the FOI Unit confirmed that a reviewer would seek clearance from the same Minister if he or she considered a different decision should be taken in these circumstances. 4.42 Representatives of both Transport Scotland and the FOI Unit indicated that this was not seen as a matter of concern, and that reviewers were not inhibited from proposing a different decision. They noted that it was very rare for a Minister to disagree with a proposed review outcome (although it was not possible to provide details of how often this had happened in the past). Where this happened - as with an initial request - such disagreement could prompt further discussion or advice, or the amendment of the response. 4.43 It was also noted that, while this situation has never arisen (and was seen as unlikely to arise) it is hypothetically possible that a review case where the reviewer and a Minister were unable to agree could be referred to the office of the Permanent Secretary. Conclusion 7 Section 21(Review by Scottish public authority) of FOISA and regulation 16 (Review by Scottish public authority) of the EIRs. 12

4.45 The assessors were satisfied that the review process in place at Transport Scotland allows a request for information to be considered afresh by an officer who had no involvement in the initial request handling. They welcomed the steps taken by Transport Scotland to assess its approach to allocating reviews and to increase the number of available reviewers. 4.46 The assessors did consider that there was a risk of reviewers feeling inhibited from recommending a different outcome in relation to a request where a Minister had been actively involved in the previous decision making process, and that such inhibition could lead to a less critical examination of request handling than would otherwise have taken place. However, any such inhibition would be likely to affect only a very small number of requests (and this issue was not raised by any of the requests considered by the assessors). The assessors considered that there was no practical way to remove this risk when Transport Scotland s information requests are all dealt with on behalf of the Ministers, who are quite legitimately a part of the decision making process. 4.47 The assessors therefore made no recommendations with respect to the review process. Content of Notices 4.48 The assessors considered the content of notices issued by Transport Scotland when responding to information requests and requests for review. The content of these notices must fulfil certain statutory requirements. 8 4.49 For example, an authority must notify the requestor when it has determined that information they have requested is not held. When withholding information, the response must confirm that it is held, and which exemption or exception has been judged to apply and why. Where information is withheld under an exemption or exception that is subject to the public interest test, the response must state the authority s reason for claiming that, in all the circumstances of the case, the public interest in maintaining the exemption outweighs that in disclosure of the information. 4.50 Any notice issued in response to an information request, must also contain particulars about the right to request a review, and subsequently to apply to the Commissioner. Under FOISA, a notice stating the outcome of a review must advise the applicant of the right to apply to the Commissioner and subsequently to appeal to the Court of Session. 4.51 Transport Scotland utilises a number of standard template letters provided by the FOI Unit in responding to requests. Used appropriately, these letters generally include, or prompt the inclusion of all of the required information. 4.52 However, the template letter for notifying a requestor of the outcome of a review referred to the right of application to the Commissioner, but not to the subsequent appeal right to the Court of Session, and so breaches the requirements of section 21(10) of FOISA. 4.53 The assessors noted that, for the most part, these templates were being used appropriately and that Transport Scotland s responses to requestors were clear and understandable and fulfilled the statutory requirements noted above. However, they noted some minor issues with respect to the content of responses. These included: 8 Section 16 (Refusal of request); section 17 (Notice that information is not held) section 19 (Content of certain notices) section 21(10) (Review by Scottish Public Authority) FOISA & Regulation 13 (Refusal to make information available) EIRs, 13

a case where a requestor was not properly notified that the information they had requested was not held. a case where a refusal notice provided no explanation of reasons for the application of several exemptions, or as to why it had been judged that the public interest favoured nondisclosure. a case where the requester s rights of review and application to the Commissioner were explained only in relation to one part of the request, suggesting that these rights related only to that part of the request. 4.54 The assessors also noted one case where a response to a request for correspondence did not supply that correspondence, or indicate that this was being withheld, but instead provided a summary detailing the extent and subject matter of that correspondence. The requestor had not requested that the information be summarised, and it was clear from the response that this summary did not provide the information requested (although it did give some indication of its content). In the circumstances, the assessors considered that this response amounted to a decision to refuse to supply the correspondence to the requestor, which was not communicated in the appropriate notice. Conclusion 4.55 The assessors recommend that: the FOI Unit amends the wording in the template letter used to provide notice of the outcome of a review to include reference to the right of appeal to the Court of Session. Transport Scotland reminds staff of the requirements with respect to the content of notices issued in response to information requests, particularly where information is either not held or is being withheld. Transport Scotland takes steps to ensure that responses to information requests address the actual information requested, except where the requestor has exercised their right to request the provision of that information in the form of a digest or summary. Publication scheme and proactive disclosure of information 4.56 Transport Scotland has a publication scheme which is approved by the Commissioner. This details a wide range of information that is made publicly available without a request being made under FOISA and the EIRs. 4.57 The assessors considered that Transport Scotland had a very positive approach to the proactive disclosure of information, which was recognised to be beneficial as a way of achieving transparency, and also reducing the burden of information request handling. Discussion with Transport Scotland s website manager confirmed that work was ongoing to identify ways of making a wider range of information available in a way that was accessible and meaningful to users. 4.58 The assessors commended Transport Scotland for its work in this area, which was recognised to be in line with the principles advocated across the Scottish Government 9, and as an area in 9 Within its six principles in relation to freedom of information, the Scottish Government states that in order to publicly demonstrate its commitment to open government, it publishes information proactively wherever possible, to ensure as much information as possible is made available without having to be asked. 14

which Transport Scotland demonstrated good practice and a commitment to the ethos underpinning FOISA and the EIRs. Validity of information requests 4.59 The assessors reviewed the handling of a number of information requests that were received and dealt with in the last quarter of 2009 following the issue of a Court of Session judgement 10 that considered (amongst other things) the requirement within FOISA that a requestor describes the information (as opposed to documents) that they wish to access. 4.60 Following the issue of this judgement, the FOI Unit had issued interim guidance to staff across the Scottish Government which indicated that a request for information would be invalid for the purposes of FOISA if it asked for documents and did not reasonably clearly describe the information required. As a result, a number of information requests that would previously have been dealt with, were rejected on the basis that they were not valid requests for information under FOISA. 4.61 The assessors reviewed records relating to a number of requests for information which had been judged to be invalid in the light of the interim guidance issued by the FOI Unit. The files revealed that the decisions on these requests had been made in consultation with the FOI Unit. However, the assessors considered that the interim guidance had been applied in a very broad manner, with the apparent effect that any request referring to documents was considered to be invalid. In each case, the assessors believed that the Commissioner would consider the requests to constitute valid information requests for the purposes of FOISA. 4.62 The interpretation of the Court s comments and their implications for the validity of information requests referring to documents has been a matter of some discussion between the Scottish Government and the Commissioner, and the assessors would note that the Government s approach to this issue had changed by the time of the assessors visit. In particular, following the revision of the FOI Unit s guidance, Transport Scotland had reconsidered a number of the requests and was in the process of preparing responses. Further guidance was issued to staff soon after the assessors on-site visit. Conclusion 4.63 The assessors recognise that the Scottish Government s approach to the question of what constitutes a valid information request, as revealed in the request handling reviewed by the assessors, was in the process of revision at the time of the assessors visit, and has since led to the issue of revised guidance. 4.64 What constitutes a valid request has remained an issue of contention during the time that this report was being prepared and the assessors do not regard it as appropriate, at this point, to make a specific recommendation on Transport Scotland s approach. 10 Glasgow City Council v Scottish Information Commissioner [2009] CSIH 73: www.scotcourts.gov.uk/opinions/2009csih73.html 15

Information intended for future publication 4.65 The assessors considered Transport Scotland s practice in cases where information had been withheld under FOISA on the basis 11 that it was held with a view to being published within 12 weeks. This had been identified as an area of concern before the assessment, following the receipt of applications to the Commissioner highlighting cases in which, after information was withheld under this exemption, Transport Scotland had not gone on to publish it within 12 weeks. 4.66 The Commissioner accepts that planned publications will on occasion be delayed. The future publication exemption can be applied to information provided that, at the time when the request is received, there is genuinely an intention to publish that information within the required period. While there is no statutory obligation to provide an update to an applicant where the planned publication does not go ahead, it would be good practice to do so, and this would reduce the risk of applications being made to the Commissioner in these circumstances. The assessors noted that this practice does not appear to be routinely followed in Transport Scotland, and would recommend that steps are taken to update applicants where relevant. 4.67 However, the assessors noted that several requests to which a response was provided in terms of FOISA, refusing to supply the information because it was intended for future publication, actually appeared to request environmental information as defined within the EIRs. In one example, a request for an environmental statement regarding the new Forth crossing, (which would be expected to be entirely environmental information) was handled under FOISA and refused on the basis that this exemption applied. 4.68 As there is no equivalent exemption within the EIRs, the assessors considered therefore that the information should have either been provided to the requestor under the terms of the EIRs, or refused on the basis of one of the exceptions in the EIRs. 4.69 The assessors make no particular recommendation in relation to this finding, since the recommendations on raising awareness and developing guidance on the EIRs set out above will also be applicable here. Transferring information requests 4.70 Under the EIRs 12, a public authority receiving a request for environmental information which it does not hold may transfer that request to another authority which it believes does hold the information. 4.71 FOISA does not contain any equivalent provision, and so for any request for information to be valid for the purposes of FOISA, it must be submitted directly by the applicant to the authority that subsequently responds. The Commissioner is aware that guidance contained in the Section 60 Code of Practice suggests that it may be good practice to transfer a request in similar circumstances to those set out in regulation 14 of the EIRs. However, he has concluded that this is incorrect and as such, a transfer would mean that the request had not been made by the requestor to the receiving authority in line with section 1(1) of FOISA. 4.72 Transport Scotland indicated that it had not been in a situation requiring it to transfer a request for environmental information to another public authority. However the assessors identified one request which appeared to be seeking environmental information (about road alterations) held by another public authority. While it may have been appropriate to transfer this request in 11 Section 27 of FOISA (Information intended for future publication). 12 Regulation 14 of the EIRs (Transfer of a request). 16

terms of the EIRs, Transport Scotland logged it as a request under FOISA, and took steps to access that information from the other public authority. 4.73 In another case, a request apparently for environmental information (concerning a landslide) was transferred to Transport Scotland from another public authority. Since it was transferred to Transport Scotland, the request was only a valid information request for the purposes of the EIRs, but it was handled in terms of FOISA. 4.74 The assessors recommended that Transport Scotland take steps to increase awareness of the circumstances in which information requests can be transferred between authorities, and the procedure for doing so. 5. Conclusion and summary of recommendations 5.1 Having concluded their assessment of Transport Scotland s practice, the assessors identified a number of areas of good practice in Transport Scotland s approach to FOISA and these have been outlined under the Executive Summary and Recommendations heading above. 5.2 There were also some areas identified in by the assessors in which it was felt that improvements/developments could be made by both Transport Scotland and the Scottish Government FOI Unit and some areas which were not fully compliant with FOISA, the EIRs and good practice as set out in the Codes of Practice. Recommendations for action in respect of these are set out below: PRIORITY 1 Immediate action required Recommendation Number 1 That the FOI Unit amends the wording in the template letter used to provide notice of the outcome of a review to include reference to the right of appeal to the Court of Session. (paragraph 4.55) 2 That Transport Scotland reminds staff of the requirements with respect to the content of notices issued in response to information requests, particularly where information is either not held or is being withheld. (Paragraph 4.55) 3 That Transport Scotland takes steps to ensure that responses to information requests address the actual information requested, except where the requestor has exercised their right to request the provision of that information in the form of a digest or summary. (paragraph 4.55) PRIORITY 2 Medium term action to be completed within 3 months Recommendation Number 4 That Transport Scotland (in consultation with the FOI Unit as appropriate) takes steps to identify the business areas where information requests are most likely to fall under the EIRs and to communicate its conclusions within future training and guidance for staff. (paragraph 4.26) 5 That Transport Scotland (again in consultation with the FOI Unit as appropriate) 17