Following the coming into force of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 the Scottish Legal Aid Board (SLAB) devised a controversial police station duty scheme.
At the time it was heavily discussed and debated. Solicitors were complaining that they were left largely n the dark as to how the scheme was operating and even today controversies still remain. SLAB were unwilling to provide details of the scheme including the names of solicitors and firms registered on the scheme.
Many attempts were made through the Freedom of Information provisions and also out with those provisions to have information released into the public domain about the operation of the scheme. One person took SLAB all the way to the Scottish Information Commissioner. Today the Commissioner’s Office has published the decision notice issued dated 21 November 2011 finding in SLABs favour.
This is hardly surprising because of the legal position SLAB finds itself in when it comes to FOI. Under Section 26 of the Freedom of Information (Scotland) Act 2002 (FOISA) any information held by a Scottish public authority is exempt if its disclosure is prohibited by any other enactment. Under Section 34 of the Legal Aid (Scotland) Act 1986 any information that is furnished to the Board pursuant to SLAB for the purposes of the Legal Aid (Scotland) Act 1986 is exempt from disclosure without the consent of the person(s) who provided SLAB with the information. Section 26 of the FOISA is an absolute exemption (see Section 2(2)(a) of the Act) and as such there is no requirement to consider whether the disclosure is in the public interest or not.
The effect of Section 34 of the Legal Aid (Scotland) Act 1986 coupled with Section 26 of FOISA means that almost anything held by SLAB would appear to be exempt from disclosure under FOISA. The Legal Aid (Scotland) Act 1986 was obviously passed before the concept of there being a right to access information held by a public authority gained a wide acceptance. It might, therefore, be worthwhile that any future changes to FOISA consider such provisions.
The Commissioner’s decision can be read in full here
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