Scottish Churches Parliamentary Office, Edinburgh - Briefing Document Seventeen

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Parliamentary Officer:Rev Graham Blount
Phone:
0131 558 8137

Briefing Document No 17 - Page 2 of 4

Towards Freedom of Information? - Continued.

Alterations since the Consultation
The Executive have come out in favour of a costing strategy, a few provisions have been more narrowly specified than they were, the switch has been made from a joint ministerial veto on release of information to the First Minister consulting other Ministers before making a decision on a veto, the idea of an Information Tribunal as an alternative appeal route has been discounted, and the policy on public records has been redrawn. Overall, however, there is very little difference.

Fees and Costs
The Executive intend to set out a fee structure based on the second option from An Open Scotland, ie that no charge could be levied for information costing less than £100 to provide, but authorities will have discretion to charge the full marginal costs of providing information costing between £100 and a maximum level set out in regulations. There is a definition of items that charges may and may not be made for.

Exemptions
There is a wide ranging list of areas which are exempt from the duty of disclosure (specified in part 2 of the draft Bill, in sections 24-40). However, the draft Bill retains the "substantial harm" test, that any information should be disclosed unless substantial prejudice would result, and most cases of exemption will not apply if "in all the circumstances of the case, the public interest in maintaining the exemption is outweighed by that in disclosure" (s2). In addition, most of the areas covered by exemptions have a time limit specified, either of 30, 60, 100 years - only a few areas are to be kept secret in perpetuity.

Information subject to exemptions includes:
a) information reasonably obtainable elsewhere;
b) information the disclosure of which is prohibited by statute or by EU obligations, or would constitute contempt of court;
c) information the disclosure of which is likely to prejudice substantially relations between UK administrations;
d) formulation of policy (except for factual information which was involved in taking a decision);
e) information due to be published within 12 weeks of the request being made;
f) information which could be prejudicial to effective conduct of public affairs - in other words, if disclosure would be likely to prejudice substantially the maintenance of the convention of the collective responsibility of the Scottish Ministers;
g) national security and defence;
h) international relations;
i) commercial interests and the economy (trade secrets or information where disclosure would be likely to prejudice substantially the commercial interests of any person, including a Scottish Public Authority);
j) investigations by Scottish public authorities and proceedings rising out of such investigations;
k) law enforcement;
l) court records, including information contained in a document lodged with a person conducting an inquiry or arbitration;
m) and personal information.

The Commissioner and Commission
The Commissioner is to be independent of the Parliament and will promote and enforce the Freedom of Information legislation. She/he will have the power to serve an enforcement notice on an authority not releasing information - after an appropriate process. If an authority failed to comply with an information notice, the Commissioner could certify such failure to the Court of Session, who could deal with it on the same level as a contempt of court. The Commissioner could also apply for a warrant to inspect premises. However, there is no right to civil action against any Scottish public authority which withholds information.

In the consultation document, there was a proposal for an information tribunal to handle appeals, but this proposal was felt to create an unnecessary layer of bureaucracy, and has been removed from the draft Bill.