6th Report, 2012 (Session 4): Stage 1 Report on the Freedom of Information (Amendment) (Scotland) Bill

SP Paper 201

FI/S4/12/R6

6th Report, 2012 (Session 4)

Stage 1 Report on the Freedom of Information (Amendment) (Scotland) Bill

CONTENTS

Remit and Membership

Report
Bill purpose

Policy background

Section 1 (Royal exemption)

Scottish Government Consultation
Finance Committee consultation
Absolute exemption
Appropriate protections
Extremely wide-ranging
Inconsistency with international good practice principles
Westminster scrutiny
Recent ruling of the Upper Tribunal

Section 2 (Refusal notice)
Section 3 (Accessible information)
Section 4 (Historical periods)
Section 5 (Time limit for proceedings)
Extension of Coverage
Financial Memorandum
Policy Memorandum
Overall conclusion on the general principles of the Bill

Annex A: Report by other committees

Annex B: Extracts from the Minutes

Annex C: Index of oral evidence

Annex D: Index of written evidence

Remit and membership

Remit:

1. The remit of the Finance Committee is to consider and report on-

(a) any report or other document laid before the Parliament by members of the Scottish Executive containing proposals for, or budgets of, public expenditure or proposals for the making of a tax-varying resolution, taking into account any report or recommendations concerning such documents made to them by any other committee with power to consider such documents or any part of them;

(b) any report made by a committee setting out proposals concerning public expenditure;

(c) Budget Bills; and

(d) any other matter relating to or affecting the expenditure of the Scottish Administration or other expenditure payable out of the Scottish Consolidated Fund.

2. The Committee may also consider and, where it sees fit, report to the Parliament on the timetable for the Stages of Budget Bills and on the handling of financial business.

3.
In these Rules, "public expenditure" means expenditure of the Scottish Administration, other expenditure payable out of the Scottish Consolidated Fund and any other expenditure met out of taxes, charges and other public revenue.

(Standing Orders of the Scottish Parliament, Rule 6.6)

Membership:

Gavin Brown
Bruce Crawford (until 24 October 2012)
Kenneth Gibson (Convener)
Jamie Hepburn (from 25 October 2012)
John Mason (Deputy Convener)
Michael McMahon
Elaine Murray
Jean Urquhart (from 18 September 2012)

Committee Clerking Team:

Clerk to the Committee
Jim Johnston 

Senior Assistant Clerk
Fergus Cochrane

Assistant Clerk
Lucy Scharbert

Committee Assistant
Parminder Kaur

Stage 1 Report on the Freedom of Information (Amendment) (Scotland) Bill

The Committee reports to the Parliament as follows—

1. The Freedom of Information (Amendment) (Scotland) Bill1 was introduced in the Scottish Parliament by the Scottish Government on 30 May 2012. The Finance Committee was designated by the Parliamentary Bureau as the lead committee. The role of the lead committee at Stage 1 is to consider and report on the general principles of the Bill.

2. The Committee issued a general call for written evidence on 14 June 2012 and all submissions are available via the Committee’s webpage.2 The Committee also heard oral evidence at its meetings on 5 and 12 September 2012 including from the Scottish Information Commissioner (SIC) and the Campaign for Freedom of Information in Scotland (CFIS). The Committee is grateful to all of those who took the time to contribute to its evidence gathering, both written and oral.

Bill purpose

3. The purpose of the Bill is—

‘to amend provisions of the Freedom of Information (Scotland) Act 2002 relating to the effect of various exemptions and the time limit for certain proceedings.’

4. The Subordinate Legislation Committee considered the delegated powers provisions on 4 September 2012 and reported on sections 4 and 7 of the Bill as follows—

‘Section 4 – Historical periods
The Committee is satisfied in principle with the power in section 4 of the Bill. The Committee is also satisfied that the amended power in section 59 of the 2002 Act will continue to be subject to the affirmative procedure.

Section 7 – Commencement
The Committee is content with the power in section 7 which allows the Scottish Ministers to commence the provisions in the Bill (except for sections 6, 7 and 8, which will come into force the day after Royal Assent) and for that power to be subject to the laying requirement set out in section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010. ’3

Policy background

5. The Scottish Government’s ‘Six Principles of Freedom of Information4 set out its approach to FoI. One of these principles commits it to adjusting ‘the regime where it is necessary and sensible to do so’. According to the Scottish Government, the Bill seeks to fulfil this principle.

6. The Freedom of Information (Scotland) Act 20025 provides a statutory right to access information held by Scottish public authorities such as the Scottish Parliament, local authorities, NHS boards, Scottish Ministers. Generally speaking the information requested must be provided unless it falls under one or more of the exemptions within the Act. The Act also establishes the arrangements for enforcement and appeal.

7. The Bill seeks to address what the Scottish Government regards as ‘weaknesses’ in two areas of the Act and which can only be remedied by amendment under primary legislation. These relate to the inflexibility of the order-making powers (section 59 of the Act) and the practical ineffectiveness of the offence provision (section 65). The Bill also seeks to mirror recent changes to the UK FoI legislation in relation to a royal exemption as well as making two further minor changes improving effectiveness.

8. Sections 1-5 of the Bill amend provisions within the 2002 Act and this report will consider each section in turn.

Section 1 (Royal exemption)

9. This provision seeks to amend section 2 of the 2002 Act. At present, if applying the exemption for ‘information relating to communications with Her Majesty, with other members of the Royal Family, or with the Royal Household’, the public interest in whether or not to release must also be considered. The ‘public interest test’ is in practice a balancing act requiring the public authority to weigh the arguments in favour of release against arguments in favour of withholding.

10. A limited number of exemptions are ‘absolute’ meaning the public interest does not need to be considered (section 2 of the Act). The amendment proposes to make absolute those elements of the exemption relating to communications with Her Majesty, the Heir, and second in line to the Throne.

11. The Scottish Government states that the purpose of the amendment is to ensure consistency of approach across the British Isles given the ‘shared Monarchy’ and in doing so ensure the maintenance of an appropriate level of confidentiality regarding such communications. To ensure absolute clarity, the amendment confirms that communications made, or received, on behalf of a particular member of the Royal Family are to be regarded as communications with that member.

Scottish Government consultation

12. The Scottish Government consulted6 on proposals for the Bill and published the consultation responses7 and its report8 alongside the Bill. Broadly there was overall support for the Bill and its intentions. However, a number of concerns were expressed on this particular issue. The then SIC stated—

‘However, I hold significant concerns in relation to the proposal to introduce an absolute exemption for aspects of section 41(a) (Communications with Her Majesty, etc.). Absolute exemptions are not regarded as good practice, and I consider this measure to be unnecessary.’9

13. Similarly UNISON stated—

‘we are opposed to making communications with Her Majesty, the heir, the second in line, or the relevant member of the Royal Family subject to ‘absolute’ exemption, therefore not requiring the application of a public interest test. As Mr Dunion [the then SIC] pointed out, the effect of this proposal, combined with the proposed lifespan for the 41(a) exemption, would result in “an absolute exemption for information relating to communications, which would in some cases last for more than the current 30 years.”’10

14. The Scottish Government said in response that it considered it ‘appropriate’ to adopt the position taken by the UK Government as it is ‘vital to ensure that the monarch, as well as the heir and second in line, can operate according to established constitutional conventions’. It also considers that the proposed amendment is consistent with policy formulation at the time of the original legislation in considering it reasonable to take into account common interests. In areas where it was considered advisable to ensure cross-border co-operation, exemptions in the Scottish legislation were intended to be compatible with the relevant provisions in the UK legislation.11

15. Further, it has highlighted the minimal number of requests made to Scottish Ministers where section 41(a) of the Act has relevance and the minimal number of applications made to the SIC for a decision. Moreover, the modification to this subsection relates only to the monarch, heir and second in line. The requirement to consider the public interest continues to apply in respect of communications with all other members of the Royal Family, as well as with the Royal Household (other than communications concerning the monarch, heir or second in line).

Finance Committee consultation

16. Given the importance of this provision, and the strong concerns expressed against it, the Committee in its Stage 1 call for evidence, asked—

‘In response to the Scottish Government’s consultation on the Freedom of Information (Amendment) (Scotland) Bill, concerns were expressed about the Royal exemption provision (Bill section 1). What is your response to the position of the Scottish Government to these concerns?

17. Several responses continued to highlight concerns about this matter. In particular, the SIC raises the following concerns in her written submission:

  • it creates an absolute exemption that sets aside the need for a public interest test for information that may be appropriate to release in the public interest. In doing so it erodes the right to information enshrined in the Act;
  • the FoI Act currently contains appropriate protections;
  • the proposed exemption will be extremely wide-ranging;
  • the amendment will create a fresh inconsistency in the handling of requests under Scottish legislation;
  • the amendment would be inconsistent with international good practice principles;
  • the Westminster amendment was not subject to full scrutiny.

18. This section of the report now considers each of these issues in turn.

Absolute exemption

19. The SIC in oral evidence to the Committee emphasised her view that the proposed absolute exemption erodes the right to information enshrined in the Act—

“My concern, which has raised a point of contention, is fundamentally about the creation of another absolute exemption. Making an exemption absolute further undermines and erodes rights to information. It removes from Scottish public authorities, including me and the Government, the flexibility needed to consider the public interest in relation to what can and cannot be disclosed”.12

20. In response to questioning from the Committee the SIC went on to argue that an absolute exemption would be a “retrograde step.”13

21. The CFIS supports this view and stated in oral evidence that it—

“has always been opposed in principle to an absolute exemption. We believe that a public interest exemption should be retained, and we urge the committee not to accept the bill on that point.”14

22. In response to the concerns of witnesses regarding the absolute exemption the Cabinet Secretary for Infrastructure, Investment and Cities stated that the intention: “is to ensure consistency of approach across the UK in respect of both the current and the future head of state.”15 In response to questioning from the Committee the Cabinet Secretary went on to state that: “there is a strong and compelling argument that the arrangements for dealing with communications between the monarch and, for example, the Prime Minister’s office, should be the same as the arrangements that pertain to communications between the Queen and the First Minister’s office.”16

23. The Cabinet Secretary also made the point that the exemption for royal communications has rarely been applied. However, she also agreed to “listen very carefully to the evidence given to the committee” and depending on the Committee’s Stage 1 report, consider whether amendments may be appropriate at Stage 2.17

Appropriate protections

24. In her written submission the SIC argues that the current protections for information relating to senior members of the Royal Family are adequate and appropriate. She points out that the current Act provides for the protection of privacy of senior Royals particularly in relation to personal data. In oral evidence to the Committee the SIC argued that—

“there is already adequate provision for the royal family and for discussions that any public authority may need to have that are confidential, are covered by other rights or are a matter for national security.”18

Extremely wide-ranging

25. The SIC also considers the proposed exemption would be extremely wide-ranging and, if enacted, would ‘have the effect of creating Scotland’s most wide-ranging absolute exemption in terms of its scope’.19 In oral evidence to the Committee the SIC stated that—

“The proposed wording “anything which relates to” makes the scope of the provision vey wide and to, a great degree, very uncertain. That is in contrast to other absolute exemptions, in which the information that is exempt is very clearly defined, with boundaries and edges. That approach would not exist under the proposed wording.”20

Inconsistency with international good practice principles

26. The SIC argues that while the Scottish Government argues that the aim of the amendment is to create consistency with the UK legislation it will in practice lead to inconsistency in the handling of requests within Scottish law. This is due to requests for environmental information under the Environmental Information (Scotland) Regulations 200421 (EIRs) which originate from an EU directive and contain no specific exemptions for communications with the Royal Family.

27. The Committee raised this issue with the SIC who stated—

“It is important to note that we could not automatically put that inconsistency right by amending the EIRs - we cannot simply amend them when that might lead to a restriction of rights, which is what an amendment would do. That would leave us with a somewhat ridiculous situation in which information could be withheld under FOISA but would have to be released under the EIRs, even if there was an absolute exemption under sections 2 and 41. Such inconsistency is undesirable and is confusing for requesters and for those who have to respond to information requests - the public authorities that we have a duty to advise. The proposed change would make giving advice more difficult. We should not lose sight of that”.22

28. The issue was also highlighted in the written submission from South Lanarkshire Council—

‘At this time requests for environmental information must be processed under the Freedom of Information (Scotland) Act 2002 (FOISA) (if even only to apply the exemption set down in section 39(2) of it, after application of the public interest test) and the Environmental Information (Scotland) Regulations 2004 (the EI(S)Rs). This results in confusion by members of the public and is an additional complexity in relation to public bodies processing these requests. For instance it is possible to have a response that applies the exemption set down in section 39(2) of FOISA i.e. amounts to a refusal to provide information but the same response provides the information under the EI(S)Rs. This is an anomaly that the Council suggests could be resolved by the current Bill without changing the general principles behind the proposals’.23

29. The CFIS made a similar point when it stated—

“You are therefore creating an inconsistency with the Environmental Information (Scotland) Regulations 2004. We do not think that the existing public interest defence has been abused in any decisions. In fact, a decision for disclosure is rare”.24

30. The Cabinet Secretary stated in response to this issue—

“On inconsistency between the FoI regime and European regulations, it is important to say that we are not dealing with a like-for-like situation. The origins of the two regimes are very different: one originated in Europe, the other is very much a devolved issue. There are already significant inconsistencies between the freedom of information and European regulations regimes. Whether we think that that is good or bad, it is a statement of fact that there are a number of inconsistencies between the two regimes. There is no easy match-up of exemptions and exceptions, and the terminology differs considerably, as does the scope of exemptions. We could eliminate inconsistency only if we combined the two regimes. What we are doing in the bill is ensuring that we do not open up inconsistency in the positions of Scotland and the rest of the UK when it comes to dealing with communications from Her Majesty”.25

Westminster scrutiny

31. The SIC also points out that there was limited scrutiny of the Royal exemption at Westminster as an amendment to the Constitutional Reform and Governance Bill26 was only introduced during a late stage in the passage of the Bill.

32. Indeed, the Committee is aware, through the evidence of the SIC, that the House of Lords Constitution Committee in its report on the Bill stated—

“It is inexcusable that the Government should have taken so long to prepare this Bill that it has effectively denied both Houses of Parliament - and especially this House - the opportunity of subjecting this important measure of constitutional reform to the full scrutiny which it deserves.”27

Recent ruling of the Upper Tribunal

33. Following her appearance before the Committee the SIC has written to the Committee highlighting a recent ruling of the Upper Tribunal (Administrative Appeals Chamber) which considers appeals against decisions of the Information Commissioner under the Westminster Freedom of Information Act (2000).28 The ruling relates to requests for correspondence between Prince Charles and several UK government departments. The Tribunal’s ruling required the disclosure of much of the withheld information and the SIC states that—

‘The particular issue to which I would like to draw to the Committee’s attention is a simple one – in making its decision, the Tribunal has clearly demonstrated that there are circumstances where it will be in the public interest for relevant information to be disclosed.’29

34. The Committee recognises that substantial evidence has been provided by witnesses, including the SIC, in arguing against the inclusion of a Royal exemption. While the Committee notes the evidence from the Cabinet Secretary, such as that highlighted in paragraphs 22 and 23 above, it remains unconvinced of the need for this provision and therefore invites the Cabinet Secretary to remove it from the Bill at Stage 2.30

Section 2 (Refusal notice)

35. This provision seeks to amend section 18 of the 2002 Act which allows an authority to respond to a request by ‘neither confirming nor denying’ whether information exists or is held, if to do so would be against the public interest. However, such a response can only be issued if a limited number of exemptions could be applied. At present, the exemption relating to personal information is not one of these.

36. The purpose of the amendment is to provide additional protection for personal information. It also brings the Act into line with both the EIRs and UK FoI legislation.

37. The amendment was a suggestion of the previous SIC in his Special Report to the Parliament in January 2012.31

38. The current SIC considers this change to be one which will strengthen and enhance the 2002 Act. SEPA considers the amendment will ‘provide clarity’ while Highland Council considers this ‘one of the most important proposed amendments’ as ‘that ability is in itself a protection of that personal data’.32 However, Alistair Sloan considers this amendment will ‘adversely affect the right to access information from public authorities’.

39. In response to questioning from the Committee on this issue the Cabinet Secretary stated—

“As you know, currently, where information falls within certain exemptions the answer can be to neither confirm nor deny that the information is held, but that answer cannot be given if the exemption is because the information is personal information. It is important that that option exists. Let us say that the police were asked for information that impinged on personal data. Even for the police to say that they have information on that person - although they are applying the exemption and not releasing the information - could alert somebody to the fact that they are under surveillance, for example, in connection with a criminal investigation…..The exemption is not automatic - it would have to be applicable in terms of personal information - but it is important to have that option. In the Bill, we probably get the balance more right than it is in the 2002 Act”.33

Section 3 (Accessible information)

40. This provision seeks to amend section 25 of the 2002 Act. Where information is reasonably obtainable, for example, when it is already publicly available, it need not be provided to an applicant in response to a request. However, to be recognised as being ‘reasonably obtainable’ it should be available in accordance with an authority’s publication scheme (which sets out what information it proactively publishes). It has been noted that this section of the Act is not a ‘model of clarity’. While a 2009 Court of Session opinion provides assistance in interpretation, the amendment seeks to improve the Act by making clear that any information made available in line with an approved publication scheme is exempt and does not, therefore, need to be provided to the applicant.

41. This amendment was also a suggestion of the previous SIC in his Special Report.34

42. This amendment is supported by the Commission for Ethical Standards in Public Life in Scotland while SEPA considers the amendment provides ‘clarity’ as does the Chief Fire Officers Association (Scotland).

Section 4 (Historical periods)

43. This provision seeks to amend section 59 of the 2002 Act. The order-making power at section 59 can be used to reduce the lifespan of certain exemptions (those at section 58 of the Act). The Scottish Government has previously consulted on reducing the lifespan of the ‘30-year’ exemptions to 15 years.

44. At present any reduction to the 30 year period could only be done in respect of all the relevant exemptions rather than individually. However, the Scottish Government’s consultation raised issues with particular exemptions, for example that concerning ‘confidentiality’, meaning a uniform reduction in lifespan was considered inadvisable. The amendment therefore allows for a more flexible approach with separate consideration for individual exemptions and types of record.

45. In due course it is the Scottish Government’s intention to being forward an Order revising the lifespans of the ‘30-year’ exemptions to enable as much information to be placed in the public domain as early as practicably possible.35

46. Concerns were expressed on this issue in responses to the Scottish Government consultation. For example the Commission for Ethical Standards in Public Life stated—

‘We are concerned that the level of flexibility proposed will lead to a more complex and less accessible Freedom of Information system. We consider a set historical record period to be much preferable to the flexible approach outlined in the draft amendment. A set time period provides for clarity and consistency. Flexible powers could result in a far more complex system with different historical record periods for each exemption, for each sub-section of an exemption, for each type of record and for any other purpose not yet identified. Currently, there are three historical records periods (30, 60 and 100 years). Your initial proposals recommend increasing this to six (5, 15, 20, 30, 60 and 100 years). Introducing different periods for paper and electronic records could quickly lead to 12 different historical record periods. There is potential for there to be over 200.’36

47. In response, the Scottish Government considered the proposed power to be ‘proportionate’ and that it provides public authorities flexibility in this area.37 It highlighted that the order to effect such changes will be subject to consultation and then affirmative procedure in the Parliament ensuring further comment and scrutiny. The Committee notes the response from the SIC to the Scottish Government’s Bill consultation—

‘I agree with the proposed amendment allowing greater flexibility in terms of the lifespan of exemptions. I also recognise and support the assertion in the consultation paper that FOISA has contributed to a shift in both public authority culture and public expectations, towards greater openness and accountability, and that this has led to the long lifespan for exemptions being increasingly out of step.’38

48. A number of submissions to the Committee’s Stage 1 consultation supported this amendment. For example, the Archives and Records Association ‘supports the flexible approach set out in the Bill’. This point about flexibility is also highlighted by East Lothian, North Ayrshire and Highland councils. NHS Lanarkshire welcomes the proposal as does the Scottish Council on Archives (although it does highlight an issue around private archives) and Consumer Focus Scotland.

49. The current SIC believes the Bill allows ‘greater flexibility’. She does acknowledge the concerns expressed ‘by a small number of respondents’ (to the Scottish Government’s consultation) but considers the positive impact of the amendment will ‘alleviate many of these concerns’.

50. However, the Commission for Ethical Standards in Public Life in Scotland continued to express concern that ‘the level of flexibility proposed could result in a far more complex system with different historical periods for each exemption’.

51. The Cabinet Secretary, following her oral evidence session, wrote to the Committee setting out the Scottish Government’s response to the concerns of the Commission.39

Section 5 (Time limit for proceedings)

52. This provision seeks to amend section 65 of the Act. It is an offence under the Act to alter, deface, block, erase, destroy or conceal a record held by a public authority and subject to an information request, with intent to prevent disclosure. At present a prosecution must be brought within six months of the offence being committed. However, due to the timescales in the Act (20 working days to respond to a request, 40 working days for an applicant to ask for a review if dissatisfied, 20 working days to issue a review response, 6 months for an applicant to request the Information Commissioner investigates the handling of a request) it can be considerably more than six months before an offence comes to light.

53. The amendment therefore proposes to make this section fully effective by revising the time limit so that a prosecution can be commenced six months from when sufficient evidence of an offence comes to the knowledge of a prosecutor - with a ‘back stop’ of three years for a prosecution to be brought from the date of an offence.

54. In their submissions to the Committee the Law Society of Scotland is supportive of this amendment as are NHS Lanarkshire, the SIC, UNISON Scotland and Alistair Sloan.

55. In oral evidence to the Committee the SIC stated—

“There has to be proportionality. I see the three-year period as a long stop because, in reality, it would be difficult to effect a prosecution after that time. I am fairly confident that anything that was going to emerge would emerge within 12 months of discovery. The key change here relates to discovery rather than commission, so I am not overly concerned about the three-year period.”40

56. The Committee notes the letter from the CFIS which it sent following its oral evidence session—

‘CFIS has been persuaded that it is not sensible to introduce a time limit of three years for the s.65 offence. Disclosures arising in other jurisdictions such as in England over Hillsborough demonstrate the advantage of being able to act on evidence even after many years. Any destruction that took place should constitute a s.65 offence. If there is insufficient evidence, there will be no proceedings.’41

Extension of Coverage

57. While the Bill does not include provisions for the extension of coverage of the 2002 Act the issue has been widely raised during the Stage 1 inquiry. For example, extending FoI coverage to public contracts with arm’s length organisations featured in a number of submissions including the CFIS, South Lanarkshire Council, Consumer Focus Scotland, SCVO, UNISON Scotland and the STUC.

58. The power to extend coverage of FoI already exists through section 5 of the 2002 Act which allows Scottish Ministers to bring forward a Scottish Statutory Instrument to designate ‘public authorities’ e.g. persons providing under contract a service on the council’s behalf.42

59. The issue has been the focus of a number of consultations by previous and current administrations. Indeed, the Bill team stated—

“There has certainly been no lack of consultation on the extension of coverage.”43

60. A number of witnesses expressed concern that, after all these consultations, this Bill does not address this matter and that the Scottish Government has not stated whether (and if so when and on what) it will bring forward firm proposals on it.

61. The 2008 consultation by the previous Scottish Government sought views on the possibility of using section 5 of the 2002 Act to include—

  • contractors who provide services which are a function of a public authority;
  • registered social landlords; and
  • local authority trusts or bodies set up by local authorities.

62. In its report on this consultation the Scottish Government stated it would consider extending coverage and that it would formally consult with a range of organisations on whether it is appropriate for them to be covered by FoI. The Scottish Government considered it was important that organisations which deliver key public services operate transparently and that people should be able to 'follow' the expenditure of public money through their access to information, in particular, in relation to PFI/PPP contracts which tend to be high value and long term.

63. Audit Scotland has published a report on how councils are utilising arm‘s-length external organisations (ALEOs) and identified around 130 major ALEOs which are defined as—

‘companies, trusts and other bodies that are separate from the local authority but are subject to local authority control or influence. Control or influence can be through the council having representation on the board of the organisation, and/or through the council being a main funder or shareholder of the organisation.’44

64. Audit Scotland was concerned that—

‘The fact that an ALEO may be a separate organisation from the council is unlikely to be at the forefront of service users’ and taxpayers’ minds. One consequence of using more complex delivery structures involving ALEOs is that the public may be less clear about who is responsible for services and, for example, who they should complain to if they are unhappy with the services they receive. Maintaining transparency is a key objective in good governance.’

65. In oral evidence to the Committee the CFIS refer to the Audit Scotland report and suggest that the increase in the number of ALEOs means that the right to access information is much weaker now than it was when the Act was introduced in 2002.

66. In July 2010 the Scottish Government launched a consultation on the possibility of extending the coverage of the 2002 Act to include certain contractors and bodies set up by local authorities to provide leisure, cultural and sport services. The then Minister for Parliamentary Business and Chief Whip has confirmed that, following the consultation, the Scottish Government “agreed to defer a decision on extension” until the Bill has been considered by the Parliament.45 He also stated in that letter that—

‘Scottish Ministers are acutely aware of the current economic climate and concerns over the impact additional regulation on hard pressed businesses could have at this time.’

67. This point was reiterated by the Cabinet Secretary in her letter to the Committee following her oral evidence session—

‘As the committee is aware, following consultation in 2009, Scottish Ministers agreed to defer any decision on extension until Parliament had completed consideration of the Amendment Bill. This is primarily an issue of expediency - I am very conscious of the time and resource implications for both the Scottish Parliament and the Scottish Government of returning to the complex issue of extension while the Bill progresses through Parliament.’46

68. The CFIS stated in oral evidence to the Committee that—

“We are now forming the view that section 5 of the Act is, therefore, not fit for purpose. Despite promises that were made in 2002, that section has not been used and the consultation that is set out in section 5(5) is unbalanced because it seeks the views of the bodies that may be covered, not of people who may wish to exercise their section 1 rights.”47

69. The SIC also pointed out that no Orders under section 5 of the 2002 Act have been made and argues that by “standing still and not designating additional organisations, we have effectively lost rights to information in Scotland.”48 The SIC states that—

“I understand the logic of clarifying the Act before extending its coverage, but I am disappointed that the opportunity has not been taken to have a discussion about how and to where we should extend it.”49

70. In response to the concerns regarding the lack of extension of coverage the Cabinet Secretary stated in oral evidence to the Committee that—

“We have said that we want to defer a discussion about extension of coverage until after the Bill has completed its parliamentary process. I am happy to give the Committee a commitment and an assurance that I will come back at that time and discuss with you in broader terms how the Government might take forward that consideration.”50

71. In response to questioning from the Committee the Cabinet Secretary went on to state that—

“I am happy to look at, and come back to the committee on, the timescales and processes for facilitating the debate that you are asking for.”51

72. The then Minister for Parliamentary Business and Chief Whip also pointed out in his letter that the Procurement Reform Bill addresses the issue of transparency and the availability of information relating to public sector procurement.

73. In subsequent correspondence to the Committee the Cabinet Secretary stated she is ‘actively considering the options available to me’ and that she is open to engaging in the debate and will listen carefully to the views that this committee and stakeholders express.’ The Cabinet Secretary also noted that—

‘while it is correct that section 5 of the Act has yet to be used, it is a misconception that Schedule 1 of the Act is unchanged from commencement on 30 September 2002. Coverage has constantly evolved by means of other primary and secondary legislation as new bodies have been created - or been abolished.’52

74. Further to this point by the Cabinet Secretary, the Committee is aware that a number of bodies have been added (and a number of bodies removed) from the Schedule to the 2002 Act and which are now covered by the Act. The Committee recognises that such changes can be made in a number of ways, for example, adding bodies placed under section 4 of the Act (which provides for the amendment of Schedule 1) or added as a result of other legislation. A list of these changes is produced regularly by the SIC.53

75. In addition, the Committee notes the evidence from the Bill team about other “means” to access information—

“Extension is sometimes seen as a be-all and end-all, but there are other means of acquiring information from bodies that are not covered, and the wider transparency agenda is intended to cater for that. For example, “The Scottish Social Housing Charter” is opening up routes to information. That is not extension; it is another route through which to access information.”54

76. In subsequent correspondence to the Committee the SIC proposes three suggestions for amendments to section 5 of the 2002 Act. 55 A requirement—

  • for a routine review of section 5;
  • for wider consultation;
  • to consider the public interest.

77. The Committee notes the views expressed by the Cabinet Secretary in evidence. However, the Committee notes the report from Audit Scotland which identifies around 130 major ALEOs and shares the concerns of witnesses set out above.

78. While the Committee recognises the Scottish Government’s intention to defer consideration of the extension of coverage until the Bill has been considered by Parliament, it invites the Cabinet Secretary to provide details and timings of how the Scottish Government intends to take forward this work and clarify what the options are which she is ‘actively considering’, including the possibility of Stage 2 amendments to section 5 of the 2002 Act. In the light of this response, the Committee will reconsider its position on this issue at Stage 2.

Financial Memorandum (FM)

79. The Committee would normally consider the FM for each Bill and report accordingly to the lead committee. As it is the lead committee for this Bill the Committee considered the FM as part of its Stage 1 scrutiny.

80. The Scottish Government states in its FM that the changes set out in the Bill ‘will have no financial implications’ for the Scottish Administration, local authorities or for other bodies, individuals or businesses.56

81. The Committee noted that, generally, there are no significant concerns expressed about the financial impact of the Bill. For example, Dumfries & Galloway, East Lothian, Highland and North Lanarkshire councils indicate no concerns while the Scottish Council on Archives considers the FM ‘has taken on board concerns about financial implications’.57 The SIC considers the assessment in the FM to be ‘reasonable and proportionate’.

82. There is perhaps a slight note of caution expressed. For example UNISON Scotland states the Committee ‘should be concerned about the financial implications in reducing scrutiny of public spending – the effect of continuing to allow FoI rights to be eroded where public services are delivered by private companies and other bodies not covered by FOISA’ while South Lanarkshire Council believes the Bill would not have any adverse financial effect on it ‘although this would change if the general purposes of the changes were more than a technical nature’.

83. The Committee did pursue the issue of increased costs with the Bill team and whether any increased complexity added to the FoI regime could lead to an increase in costs, for example, for a local authority. The Bill team said in response to questioning that—

“The fact that different exemptions will apply is unlikely to have a significant impact - if any - on the number of requests that come in to an organisation. The overall costs of responding to FoI requests - which would currently be absorbed in the day-to-day running costs of any public authority - are very unlikely to change.”58

84. The Committee welcomes this assurance from the Scottish Government.

85. In further questioning about the potential for increased costs to the Scottish Government in dealing with requests for information the Bill team provided the following written response--

‘The information referred to is already in the public domain and can be accessed at:

FoI costs report (from which the £236 figure is drawn)

www.scotland.gov.uk/About/Information/FOI/FOICostReport

FoI Annual report for 2011 which estimates (on the basis of the figures in the costs report) the total cost to the SG of responding to FoI. In 2011, the figure was £530,253

www.scotland.gov.uk/About/Information/FOI/Reporting/AnnualReport2011

For information, we're in the process of updating the cost report to reflect 2012 experience. We would expect to be able to publish this in advance of the Stage 1 debate.’

86. The Committee welcomes this additional information and looks forward to receiving the updated costs for 2012 ahead of the Stage 1 debate. Should there be an increase in the costs for 2012 over 2011 the Committee invites the Scottish Government to provide an explanation for this.

Policy Memorandum (PM)

87. The PM sets out the approach of the Scottish Government to consulting on the Bill and its policy intentions. The Committee, in its call for evidence, sought the views on this particular issue. A number of responses highlighted the Scottish Government’s consultation on the Bill (and its previous consultations on matters which are not included in the Bill e.g. the issue of extension of FoI to cover arms-length organisations).

88. The Archives and Records Association ‘welcomes’ the way its concerns have been addressed.59 The Commission for Ethical Standards in Public Life in Scotland states it ‘is clear from the policy memorandum that our concerns were identified and considered’.60 Other responses appear satisfied at the consultation process, for example, GTC Scotland, Dumfries and Galloway and North Lanarkshire councils, NHS Lanarkshire, and SCVO.

89. Consumer Focus Scotland is disappointed that the Scottish Government has not progressed a wider reform agenda and sought to extend the coverage of the 2002 Act and bring more organisations within the scope of the legislation.61 The CFIS considers its ‘views have been mainly ignored’.62

90. The PM also assesses the impact of the Bill on equal opportunities, human rights, island communities, local government, sustainable development and other relevant matters.

91. The Committee is content with the assurances given by the Scottish Government in the PM with regards the impacts which the Bill will have on each of these areas.

OVERALL CONCLUSION ON THE GENERAL PRINCIPLES OF THE BILL

92. The lead committee’s role at Stage 1 is to report to the Parliament on the general principles of the Bill. The Committee recognises that broadly there is overall support for the Bill and its intentions and is content to recommend to the Parliament that the general principles of the Bill be agreed to.

93. However, in relation to the Royal exemption the Committee invites the Scottish Government to remove the Bill’s section 1 provision at Stage 2.63 The Committee also invites the Cabinet Secretary to provide details and timings of how the Scottish Government intends to take forward the issue of extension of coverage and clarify what the options are which she is ‘actively considering’, including the possibility of Stage 2 amendments to section 5 of the 2002 Act. In the light of this response, the Committee will reconsider its position on this issue at Stage 2.

ANNEX A: REPORTS BY OTHER COMMITTEES

The Subordinate Legislation Committee’s Report on the Bill is Available at: www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/54106.aspx

ANNEX B: EXTRACTS FROM THE MINUTES

21st Meeting, 2012 (Session 4) Wednesday 5 September 2012

Freedom of Information (Amendment) (Scotland) Bill: The Committee took evidence at Stage 1 from—

Zoe Mochrie, Head of Freedom of Information Unit and Legislation Team; Heike Stephenson, Scottish Government Legal Directorate; and Andrew Gunn, Bill Manager, Scottish Government.

22nd Meeting, 2012 (Session 4) Wednesday 12 September, 2012

Freedom of Information (Amendement) (Scotland) Bill: The Committee took evidence at Stage 1 from—

Carole Ewart, Co-Convener, Campaign for Freedom of Information;

David Sillars, Senior Investigating Officer, Commission for Ethical Standards in Public Life in Scotland;

Rosemary Agnew, Scottish Information Commissioner, and Euan McCulloch, Deputy Head of Enforcement, Office of the Scottish Information Commissioner;

Nicola Sturgeon, Deputy First Minister and Cabinet Secretary for Infrastructure, Investment and Cities, Andrew Gunn, Bill Manager, Mark Richards, Scottish Government Legal Directorate, and Zoe Mochrie, Head of Freedom of Information Unit and Legislation Team, Scottish Government.

ANNEX C: INDEX OF ORAL EVIDENCE

21st Meeting, 2012 (Session 4) Wednesday 5 September 2012

Zoe Mochrie, Head of Freedom of Information Unit and Legislation Team; Heike Stephenson, Scottish Government Legal Directorate; and Andrew Gunn, Bill Manager, Scottish Government.

22nd Meeting, 2012 (Session 4) Wednesday 12 September, 2012

Carole Ewart, Co-Convener, Campaign for Freedom of Information; David Sillars, Senior Investigating Officer, Commission for Ethical Standards in Public Life in Scotland;

Rosemary Agnew, Scottish Information Commissioner, and Euan McCulloch, Deputy Head of Enforcement, Office of the Scottish Information Commissioner;

Nicola Sturgeon, Deputy First Minister and Cabinet Secretary for Infrastructure, Investment and Cities, Andrew Gunn, Bill Manager, Mark Richards, Scottish Government Legal Directorate, and Zoe Mochrie, Head of Freedom of Information Unit and Legislation Team, Scottish Government.

ANNEX D: INDEX OF WRITTEN EVIDENCE

Evidence received in alphabetical order

Archives and Records Association (UK and Ireland) (39.5KB pdf)

BEMIS (11.5KB pdf)

Billy Briggs (6.24KB pdf) 

Campaign for Freedom of Information in Scotland (79.5KB pdf) 

Campaign for Press and Broadcasting Freedom (6.28KB pdf) 

Chief Fire Officer Association (Scotland) (9.13KB pdf) 

Commission for Ethical Standards in Public Life in Scotland (10.7KB pdf) 

Consumer Focus Scotland (22.7KB pdf)

Jamie Donaldson (6.16KB pdf) 

Dumfries and Galloway Council (9.12KB pdf)

East Lothian Council (8.35KB pdf) 

Dorothy Grace Elder (6.68KB pdf)

GTC Scotland (8.77KB pdf) 

Highland Council (10.6KB pdf) 

Law Society of Scotland (9.80KB pdf) 

Lord Lyon (7.05KB pdf)

Napier Students Association (6.94KB pdf)

NHS Lanarkshire (7.70KB pdf) 

NHS Orkney (15.1KB pdf) 

North Ayrshire Council (7.67KB pdf) 

North Lanarkshire Council (9.08KB pdf)

NUJ Scotland (11.5KB pdf) 

Poverty Alliance (6.82KB pdf) 

SCID (6.50KB pdf) 

Scottish Borders Council (19.9KB pdf)

Scottish Council on Archives (39.8KB pdf)

Scottish Information Commissioner (49.4KB pdf)

SCVO (23.8KB pdf) 

SEPA (9.44KB pdf) 

Scottish Natural Heritage (8.85KB pdf) 

Alistair P Sloan (55.6KB pdf) 

SOLACE Scotland (6.32KB pdf)

South Ayrshire Council (6.45KB pdf) 

South Lanarkshire Council (13.2KB pdf) 

STUC (49.4KB pdf) 

UNISON (34.4 KB pdf) 

University and College Union Scotland (12.4KB pdf)

Additional information:


Footnotes:

1 Freedom of Information (Amendment) (Scotland) Bill. Available at: www.scottish.parliament.uk/parliamentarybusiness/Bills/51531.aspx

2 Scottish Parliament Finance Committee. Available at: www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/53567.aspx

3 Scottish Parliament Subordinate Legislation Committee. 40th Report, 2012 (Session 4). Freedom of Information (Amendment) (Scotland) Bill (SP Paper 180). Available at: www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/54106.aspx

4 Scottish Government. Freedom of Information - The Scottish Government's Six Principles. Available at: www.scotland.gov.uk/About/Information/FOI/6principles

5 Freedom of Information (Scotland) Act 2002. Available at: www.legislation.gov.uk/asp/2002/13/contents

6 Scottish Government. Consultation on Proposals for A Freedom of Information (Amendment) (Scotland) Bill. Available at: www.scotland.gov.uk/Publications/2011/12/13125045/0

7 Scottish Government. Freedom of Information (Amendment) (Scotland) Bill Consultation Responses. Available at: www.scotland.gov.uk/Publications/2012/04/4515/downloads

8 Scottish Government. Freedom of Information (Amendment) (Scotland) Bill Consultation Report. Available at: www.scotland.gov.uk/About/Information/FOI/18017/ConsultationReport

9 Scottish Government. Freedom of Information (Amendment) (Scotland) Bill Consultation Responses. Available at: www.scotland.gov.uk/Resource/0039/00391118.pdf

10 Scottish Government. Freedom of Information (Amendment) (Scotland) Bill Consultation Responses. Available at: www.scotland.gov.uk/Resource/0039/00391125.pdf

11 Scottish Government. Freedom of Information (Amendment) (Scotland) Bill Consultation Report. Available at: www.scotland.gov.uk/About/Information/FOI/18017/ConsultationReport

12 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Col 1510. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

13 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Col 1515. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

14 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Col 1499. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

15 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Col 1520. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

16 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Col 1522. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

17 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Col 1532. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

18 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Col 1515. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

19 Scottish Information Commissioner. Written submission to the Finance Committee. Available at: www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/53567.aspx

20 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Col 1510. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

21 Environmental Information (Scotland) Regulations 2004. Available at: www.hmso.gov.uk/legislation/scotland/ssi2004/20040520.htm

22 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Col 1511. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

23 South Lanarkshire Council. Written submissions to the Finance Committee. Available at: www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/53567.aspx

24 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Col 1497. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

25 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Col 1522. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

26 Constitutional Reform and Governance Act 2010. Available at: http://services.parliament.uk/bills/2009-10/constitutionalreformandgovernance.html

27 House of Lords Constitution Committee. 11th Report, Constitutional Reform and Governance Bill. Available at: www.publications.parliament.uk/pa/ld200910/ldselect/ldconst/98/9802.htm

28 Upper Tribunal (Administrative Appeals Chamber) decision, Evans v Information Commissioner. Available at: www.judiciary.gov.uk/media/judgments/2012/evans-v-information-commissioner

29 Letter from Scottish Information Commissioner to Convener of the Finance Committee, 28 September 2012. Available at: www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/52148.aspx

30 Gavin Brown MSP dissented from this paragraph.

31 Scottish Information Commissioner. Informing the Future: The state of freedom of information in Scotland: Special Report to the Scottish Parliament 2012. Available at: www.itspublicknowledge.info/nmsruntime/saveasdialog.asp?lID=5266&sID=5972

32 Highland Council. Written submissions to the Finance Committee. Available at: www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/53567.aspx

33 Scottish Parliament Finance Committee. Official Report,12 September 2012, Col 1535. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

34 Scottish Information Commissioner. Informing the Future: The state of freedom of information in Scotland: Special Report to the Scottish Parliament 2012. Available at: www.itspublicknowledge.info/nmsruntime/saveasdialog.asp?lID=5266&sID=5972

35 Freedom of Information (Amendment) (Scotland) Bill Policy Memorandum. Available at: www.scottish.parliament.uk/parliamentarybusiness/Bills/51531.aspx

36 Scottish Government. Freedom of Information (Amendment) (Scotland) Bill Consultation Responses. Available at: www.scotland.gov.uk/Publications/2012/04/4515/downloads#res391088

37 Scottish Government. Freedom of Information (Amendment) (Scotland) Bill Consultation Report. Available at: www.scotland.gov.uk/Resource/0039/00394208.pdf

38 Scottish Government. Freedom of Information (Amendment) (Scotland) Bill Consultation Responses. Available at: www.scotland.gov.uk/Publications/2012/04/4515/downloads#res391088

39 Letter from the Deputy First Minister and Cabinet Secretary for Infrastructure, Investment and Cities to the Convener of the Finance Committee, 13 October 2012. Available at:www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/52148.aspx

40 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Col 1513. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

41 Letter from the Campaign for Freedom of Information in Scotland to the Convener of the Finance Committee, 23 October 2012. Available at: www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/52148.aspx

42 Freedom of Information (Scotland) Act 2002. Available at: www.legislation.gov.uk/asp/2002/13/contents

43 Scottish Parliament Finance Committee. Official Report, 5 September 2012, Col 1473. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7337&mode=pdf

44 Audit Scotland. Arm’s-length external organisations (ALEOs): are you getting it right? (2011). Available at: www.audit-scotland.gov.uk/docs/local/2011/nr_110616_aleos.pdf

45 Letter from the Minister for Parliamentary Business and Chief Whip to the Convener of the Finance Committee, 28 August 2012. Available at: www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/52148.aspx

46 Letter from the Cabinet Secretary for Infrastructure, Investment and Cities to the Convener of the Finance Committee, 13 October 2012. Available at: www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/52148.aspx

47 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Col 1497. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

48 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Col 1509-10. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

49 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Col 1509. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

50 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Col 1525. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

51 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Col 1529. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7354&mode=pdf

52 Letter from the Deputy First Minister and Cabinet Secretary for Infrastructure, Investment and Cities to the Convener of the Finance Committee, 13 October 2012. Available at: www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/52148.aspx

53 Who is covered by FOI legislation in Scotland? Scottish Information Commissioner. Available at: www.itspublicknowledge.info/uploadedfiles/ScheduleOneJune2012.pdf

54 Scottish Parliament Finance Committee. Official Report, 5 September 2012, Col 1473. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7337&mode=pdf

55 Letter from Scottish Information Commissioner to Convener of the Finance Committee, 28 September 2012. Available at: www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/52148.aspx

56 Freedom of Information (Amendment) (Scotland) Bill Financial Memorandum. Available at

www.scottish.parliament.uk/S4_Bills/Freedom%20of%20Information%20(Amendment)%20(Scotland)%20Bill/b14s4-introd-en.pdf

57 Scottish Council on Archives. Written submission to the Finance Committee. Available at: www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/53567.aspx

58 Scottish Parliament Finance Committee. Official Report, 12 September 2012, Cols 1523-4. Available at: www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=7337&mode=pdf

59 Archives and Records Association. Written submission to the Finance Committee. Available at: www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/53567.aspx

60 Commission for Ethical Standards in Public Life. Written submission to the Finance Committee. Available at: www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/53567.aspx

61 Consumer Focus. Written submission to the Finance Committee. Available at: www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/53567.aspx

62 Campaign for Freedom of Information in Scotland. Written submission to the Finance Committee. Available at: www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/53567.aspx

63 Gavin Brown MSP dissented from this sentence.

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