Consultation Responses: Key Issues
We received 22 responses to the consultation. While the vast majority were in favour of our proposals a number of issues were raised by respondents which are summarised below.
The responses (where consent has been given to publish) along with the consultation paper are available on the Scottish Government's consultation webpages  .
Views in support of the proposals
Almost half of the responses received, including from the school sector, were fully supportive of our proposals. For example, Kibble Education and Care Centre considered the increase to 60 days would alleviate some of the concerns around timeframes and responding to requests within the legal timescale; Capability Scotland noted that the extension would allow schools to meet their requirements when requests were submitted before or during holiday periods.
In their response the Scottish Council of Independent Schools commented that the proposals took on board the concerns expressed, easing the practical difficulties of responding to requests.
Support also came from the Scottish Information Commissioner. While noting the importance of requestors being given information they are entitled to as quickly as possible, the Commissioner acknowledged the practical difficulties for grant-aided and independent special schools of responding to request during the schools holidays. The Commissioner agreed that the time available for responding to requests should be extended in line with the draft regulations.
Other comments noted that the proposals seemed a reasonable response to the issue of response times 'for organisations that operate a term time structure' and that the proposals provided an 'appropriate balance taking into account the variety of constraints which apply during vacation periods'.
A number of responses, particularly from local authorities, while also being supportive of the proposals, were critical that the regulations would not also apply to local authorities - at least to the extent that local authorities were required to respond to requests involving schools' information.
For example, Comhairle nan Eilean Siar believed it would be appropriate to extend the proposed allowance to all schools, including those operated by a local authority. The Council noted that, while the obligation to comply with the requirements of the Act lay with the local authority rather than the individual school, the practical reality was that information might be held within a school and that state schools closed down during holidays. The issues arising would therefore be the same as for the grant-aided and independent special schools when responding to a request received shortly before or during the summer holidays. The Council therefore did not consider the distinction to be sustainable.
Other local authorities reflected broadly the same points: Aberdeenshire Council noting local authority run schools experience the same compliance difficulties during school holiday periods; Perth and Kinross Council commenting that in general, central employees did not have access to information held in schools and, even if they did, are unlikely to know how information was filed or stored. The Council also noted that comparable UK legislation permitted a response within 20 school days (or 60 working days if that was shorter).
A further response wondered whether there was scope to allow similar extensions for other public authorities noting that many public authority offices were shut from the end of December through to the beginning of January.
Views against the proposals
Four responses were critical of the proposed regulations. The Children and Young People's Commissioner Scotland set out various reasons for objection:
- the creation of a two-tier system impacting on the most vulnerable children and young people;
- particularly with such schools, the importance as a matter of public interest in accessing relevant matters of expenditure and management information;
- the 20 working day response timescale not posing an unduly administrative burden with request levels unlikely to be unduly onerous;
- it would not be difficult to respond to requests within 20 working days and that no distinction was made for schools in their duty to respond to subject access requests.
The Commissioner also supported delay in implementation to allow for appropriate systems and training to be in place.
The Campaign for Freedom of Information in Scotland ( CFOIS) identified a range of issues in their response, which was endorsed by Unite the Union Scotland and Unison.
The CFOIS summarised the key issues as:
- the threat to the established principle of responding to requests within 20 working days and the creation of a two-tier system;
- the fact that schools do not in practice actually close;
- that disabled children who attend grant-aided and independent special schools, and their parent/carers, are being treated less favourably than those attending local authority schools;
- that the response time for information requests relating to the environment will remain at 20 working days as the Scottish Government does not have the power to change the Environmental Information (Scotland) Regulations 2004.
The CFOIS proposed as an alternative solution an amendment to the definition of 'working day' under section 73 of the Act. The CFOIS proposal is to count as a 'working day' for the purposes of the Act 'any day other than a day a grant-aided school and independent special school is verified as being closed during the academic year'. As part of this, an independent verification process on closure would be required to ensure transparency, undertaken, for example, by the Scottish Information Commissioner or Her Majesty's Inspectors or Education Scotland.
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