Freedom of Information
The Freedom of Information (Scotland) Act 2002 was passed on 24 April 2002 and received royal assent a little over one month later. The Act is a significant milestone in the journey towards open government and the deconstruction of the culture of secrecy which characterises much of the "public" sector. It provides for a general statutory right for individuals to access information held by public bodies.
The right to access information held by a public authority is (of course) not absolute. The most useful documents online for explaining the detailed workings of the Act are the Scottish Executive’s "Overview" [available in PDF] and, for a slightly more technical view, the explanatory notes which accompany the Act.
In brief, the Act applies to all Scottish public authorities, which includes all the usual suspects: the Scottish Executive and Parliament themselves; the 32 local councils; the Police; the NHS etc. Of particular note to the legal profession and some lay advisers may be the Parole Board in Scotland, the Scottish Children’s Reporters Administration, the Scottish Criminal Cases Review Commission, the Scottish Law Commission and the Scottish Legal Aid Board. Public authorities must allow access to certain categories of information held by them:
- information pertaining to the provision, cost and standard of its service(s);
- factual information relating to the public authority in question;
- information on decision-making by the authority; and
- the reasons for decisions made by it.
However, there are a number of exceptions to the general duty to allow access to information. These include:
- information relating to national security and defence;
- information relating to police investigations; and
- information relating to the formation/development of government policy.
Which is a shame, because this is exactly the sort of information many people would love to get their hands on. In fact, as the Campaign for Freedom of Information point out in their website’s Scottish pages, the "policy-making" exemption is of even more significance than it might seem. This is because the facts on which a policy decision is based are covered as well as, say, advice from civil servants. The campaign fears that research, cost analyses and scientific findings could be withheld. This, as well as discussion of other weaknesses in the legislation, together with a critical eye on the progress made toward full implementation are all to found on this well stocked website.
Where an exemption does apply, the authority still has to release the information if it is in the public interest to do so. If an individual wishes to obtain information which is being withheld under one of these exemptions, they can apply to the Scottish Information Commissioner, Kevin Dunion, for a determination. The website is clear, concise and in plain English, which is as all public information should be. It also has one of the more entertaining URLs in the public sector. It sets out in summary the scope of the Act and the progress being made towards implementation, as well as the role of the Commissioner and a short but comprehensively useful set of links to relevant sites. Unfortunately, the recent reorganisation of the Scottish Executive’s Freedom of Information pages has "broken" this link as well as numerous other such links across the web (grrr…).
The Freedom of Information (Scotland) Act 2002 is, as yet, largely not in force. The latest possible date for full commencement is 31 December 2005. However, the Information Commissioner has agreed with the Executive on a timetable for implementation of the Act. The timetable lists the final dates for various public bodies to submit their draft "publication schemes" to the Information Commissioner for his approval. Publication schemes will detail what information each public body (over 8,600 all told) holds, in what form it is held (e.g. paper or electronic), and what charges are to be made for access (if any). It is intended that maximum charges will vary according to the cost to the authority of providing access.
At any rate, the Scottish Executive and Scottish Parliament intend to lead by example as their publication schemes are due to be submitted no later than 28 February 2004. Others will follow in due course, leading to a planned date for full implementation of 1 January 2005, when the whole Act will be brought into force.
In the meantime, the public can seek to rely on the Scottish Executive’s non-statutory Code of Practice on Access to Scottish Executive Information. The Code seeks to provide a framework for putting ministerial commitments on access to information into practice. It provides that reasonable requests for information should be complied with, but also lists the circumstances not covered by the commitments given. The Code will remain in force until replaced by the Act on 1 January 2005.
The Guardian Unlimited’s special reports are always a boon and none more so than this section on freedom of information in Scotland. Particularly impressive is the style letter it offers for use in requesting information under the Code of Practice (something I was unable to locate on the Executive’s website). It is available for download in Word format.
The deadline of 1 January 2005 is in line with the introduction of the Westminster Parliament’s Freedom of Information Act 2000. This Act is of relevance if you are seeking information from a UK public authority. It is similar in its operation to the 2002 Act, although the Scottish version is generally recognised to be the stronger of the two (as it allows more access). Elizabeth Franks is the UK’s Information Commissioner, with responsibility for both Data Protection and Freedom of Information.
Given that there is little over a year to go before full implementation and that the first publication schemes are due for submission during the early part of next year, it is perhaps surprising that there is so little coverage of this issue on solicitors’ websites in Scotland. One exception to that general rule is Macroberts Solicitors who have a simple page of legal links on privacy, data protection and freedom of information. The page carries links useful to the Scottish, UK, European and International positions.
This article was written by Iain Nisbet of Govan Law Centre.
It first appeared in SCOLAG Legal Journal in October 2003.
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