Scottish Churches Parliamentary Office, Edinburgh - Briefing Document Ten

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Parliamentary Officer:Rev Graham Blount
Phone:
0131 558 8137

Briefing Document No 10 - Page 1 of 4

How Open Will Scotland Be?

The recent Executive consultation paper "An Open Scotland" invites comments by March 15 on the proposals for a Scottish Freedom of Information Bill. This briefing seeks to establish the principal aspects of the proposals, and to set them in a context for reflection by the churches.

The Proposals

The proposals are wide reaching and precise. They will establish a freedom of information regime in Scotland whilst seeking to protect the privacy rights of the individual and government. Primarily they seek to establish a culture of openness in Scottish government which will include local authorities, the police, schools and the NHS.

Scottish legislation on Freedom of Information will be "compatible" with UK legislation, though going further in some respects. While clearly any Scottish system cannot legislate on UK-wide information, the legislation will apply to the Scottish Parliament, the Scottish administration, public corporations, and any Scottish public authority with mixed (reserved and devolved) or entirely devolved responsibilities. Data protection (including electronic data protection) is one crucial area reserved to Westminster by the Scotland Act, and access rights to personal information under Data Protection legislation will be handled under the Westminster Bill.

A Commissioner's Office with wide-ranging powers will be established to head the system and adjudicate on appeals, and will also be able to order the disclosure of information. One of the aspects of the proposals with the greatest potential impact is that, rather than authorities considering in each case the possible effects of disclosing information, they will instead consider the effects of withholding it. This changes the complexion of the legislation, from a state which considered which information to release, to a state which will instead consider which information to keep classified. This signals a major shift in intent by the Scottish Executive - "at the heart of our proposals is a presumption of openness and a belief that better government is born of better scrutiny".

Naturally, there are exemptions to this disclosure regime (laid out in detail as "class-based" and "content-based" exemptions in Annex C, but quite expressly open to further discussion in the consultation process). Key exemption areas include national security, international relations, criminal investigation, personal information (covered by data protection), commercial and other confidentiality and internal policy discussions. The last of these is likely to be the most contentious, although policy advice from civil servants is only to be withheld if "substantial prejudice" will be caused. One interesting "test case" for the new regime may be the Parliamentary Bureau (effectively Parliament's Business Committee) - which is the only Parliamentary "Committee" which is neither open to the public nor publishes even minutes.