Scottish Churches Parliamentary Office, Edinburgh - Briefing Document Ten

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Parliamentary Officer:Rev Graham Blount
Phone:
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Briefing Document No 10 - Page 2 of 4

How Open Will Scotland Be? - Continued.

Scotland/UK Differences

There are significant differences between the proposals in Scotland and the UK Freedom of Information Bill, as the proposals for a Scottish FOI Act go beyond those in the UK FOI Bill in several key respects:
1. Instead of authorities merely having to demonstrate that "prejudice" would result from the disclosure of information, Scottish authorities must demonstrate "substantial prejudice" - much harder to prove, and likely to lead to less withholding of information.
2. In many areas (not all), the Scottish Information Commissioner will have the power to order the disclosure of information in the public interest, whereas in the UK legislation the commissioner will have only a recommendation.
3. The data informing policy decisions will be released under the Scottish legislation, subject to the substantial prejudice guidelines, although the executive discussions of that policy will not be released. At Westminster, ministers can veto release of this data, even if no "prejudice" will be caused.
4. The Westminster Bill takes into account an authority's "opinion" on whether release of information would prejudice effective conduct of public affairs. This exemption does not appear at all in the Scottish paper.
5. Ministerial Vetoes, while provided for in the Scottish Bill, will not be as far-reaching as the powers given to cabinet ministers in the United Kingdom. The areas in which this veto can apply are more clearly limited, with the added restriction that the veto needs a unanimous agreement by the whole Scottish Executive, making it impossible for one minister to veto information alone.

The new Bill and the present Code of Practice

The Freedom of Information Act will replace the working Code of Practice on Access to Scottish Executive Information. The Act differs from the Code in its scope and in its appeal procedure. The Act will widen the current Freedom of information regime to include local authorities, schools, the police and the NHS - all bodies which are not covered by the Code of Practice. While the Freedom of Information Act will provide for an Information Commissioner, the Code of Practice has only the Scottish Parliamentary Commissioner for Administration, who can only investigate complaints referred by an MSP that an authority covered by the Code has failed to disclose information. Like the Freedom of Information Act, however, the Code of Practice is also underpinned by a "presumption of openness".

Practice in Other Countries

The UK and Scottish governments are by no means the first to implement Freedom of Information regimes. For example, in Canada each public authority is compelled to submit a record containing descriptions of records held, with their probable locations, and other information, including the names of those to contact for access to each document. This is seen as essential in ensuring that members of the public not only have access to information, but also know how and where to find it. This "Access Register" is widely available, in 700 libraries and 2,700 post offices.

In New Zealand, there is no ministerial veto on policy discussion, which is simply withheld until a decision has been made. It is then released, allowing any policy consultation to be more effective, with no signs that this is detrimental to effective governance. The Irish Act also allows for the release of factual policy-making data at all times, with no veto, and also provides for the release of other policymaking data unless it can be demonstrated clearly to harm the public interest.