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When in doubt, reveal

EDUCATION authorities, further education colleges and universities have just over a year to get their act together - in preparation for the Freedom of Information (Scotland) Act which comes into effect on January 1, 2005.

This deadline for full implementation of the legislation, which establishes a general right to information held by public bodies and a right to adjudication if information is withheld, comes a year earlier than intended. The Scottish Executive believes the new target date is "tough but deliverable".

The man with the legal powers to ensure delivery takes place is Kevin Dunion, the Scottish Information Commissioner, who made his name as chief executive of Friends of the Earth Scotland. Mr Dunion's office will be based in St Andrews and have a staff of 14.

In an interview with The TES Scotland, Mr Dunion said the best approach for public authorities to take is: "When in doubt, reveal - rather than when in doubt, conceal. Parliament has an expectation that information will be made available and the presumption is therefore in favour of disclosure."

The first steps will come early next year with deadlines for drawing up "publication schemes" - February 28 in the case of the Executive and local authorities, and May 31 for universities and colleges. These schemes will have to set out the classes of information which an authority is to publish, the format and the details of any charges for receiving the information. They will have to be approved by the commissioner.

If an authority decides information is to be exempt from the obligation to publish, it must give reasons. The person requesting the information can ask for the decision to be reviewed and can turn to the commissioner if they remain dissatisfied.

Mr Dunion commented: "I hope most authorities will be proactive and sensible about this and recognise that the whole purpose is to get information into the public domain." He plans to issue a good practice guide in the autumn and the Executive will also set out a code of conduct.

The thrust of the advice will be that the balance between issuing and barring information - even where an exemption against access applies - "will always lie in favour of disclosure and information will only be withheld if the public interest in withholding it is greater than the public interest in releasing it".

A response to a request for information has to be provided within 21 days and Mr Dunion warns that there is a major task ahead for public bodies to make staff aware. "Secretaries in schools, for example, will have to realise that the clock starts ticking when the letter asking for information is received and that a response has to go out in 21 days. It can't just be shelved in a file."

Mr Dunion's office will be the final arbiter, although there can be an appeal on technical grounds to the Court of Session and a veto by the First Minister. He acknowledges there may be tensions between freedom of information and data protection but he is confident that common sense will prevail.

Data management rather than data protection, however, may prove the bigger headache. The Act covers not only information but the reasons behind decisions. A headteacher might demand to see the evidence on which HMI rated him or her unsatisfactory, or a university dissatisfied with a research assessment rating could ask to see the files.

This is one of the major issues facing Universities Scotland, which estimates that higher education institutions may be faced with a bill for more than pound;1 million to ensure that the way they store information, which at present they admit is not designed for access and release, is made more compliant with the Act.

But a spokesperson was careful to stress that, despite the costs and the work involved, "we support freedom of information and believe that, in the long run, it will be good for the sector".

Universities Scotland has already won agreement from the commissioner that ongoing academic research will be exempt and confidentiality therefore protected.

The Association of Scottish Colleges believes there are no specific FE issues which will hinder compliance with the Act. It is likely to produce a model publication scheme, approved by the commissioner, which will be the basis for colleges' own schemes.

Mr Dunion has no doubts that the limits of the Act will be tested, public private partnerships being one example. "Some local authorities are already looking at the issue of commercial confidentiality and considering whether they should alert potential bidders that details of bids under PPP might go into the public domain."

But the commissioner doesn't believe public bodies will be swamped with requests for information, or that his office will be swamped by appeals.

"The main protection against this is that requests for information have to be persistent, and mediation is also possible to prevent a dispute reaching the formal complaint stage. The commissioner has the power to go to the Court of Session to plead contempt where a public body refuses to comply with his ruling.

"So I don't expect there to be too many vexatious requests: the hurdle is quite high."

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