Proposed Changes to FOISA: Freedom of Information (Amendment) (Scotland) Bill

The Scottish Ministers have published the Freedom of Information (Amendment) (Scotland) Bill.  This Bill aims to make some changes to the Freedom of Information (Scotland) Act 2002 and some of the changes within it are certainly needed.

The first major change that is needed is in relation to the time limit for bringing a prosecution under s.65 of FOISA.  Section 65 makes it a criminal offence to alter, deface, block, erase, destroy or conceal a record held by the authority which has been requested under the general right to information found within s.1 of FOISA.  There has to be an intention to prevent the disclosure of the record.  Currently there is an unrealistic time limit of 6 months on brining a prosecution.  The time that such evidence is uncovered by the Commissioner it is more than likely to be beyond 6 months by the time she would be in a position to report the matter to the Procurator Fiscal for consideration and certainly more than 6 months before they could have reviewed the evidence and decided to bring a prosecution.

The Bill amending the Act proposes introducing s.65A into the Act.  This would significantly alter the length of time in which a prosecution could be brought.  It would mean that the 6 months would no longer start on the date that the offence occurred (i.e. the date that the alteration, defacing, blocking, erasing, destruction or concealment took place).  Instead, the 6 months would start on the date “which evidence that the prosecutor believes is sufficient to justify the proceedings came to the prosecutor’s knowledge.”  There is a limit placed on this though.  The prosecution could not be brought if it is more than 3 years since the offence was committed (or where it was a continuous contravention 3 years since the contravention last occurred).

There are very few situations where this offence is likely to occur.  However, in cases such as the recent one involving NHS Ayrshire and Aaran, it is clear that there may be occasions where a prosecution might be justifiable.  Of course, in the NHS Ayrshire and Aaran case the Commissioner found that there was no deliberate attempt to conceal the documents (paragraph 66).  However, it demonstrates that there might just be cases where an offence has been committed.  At least this proposal would ensure that should such a case occur that the Commissioner has the power to act and refer the matter to the Procurator Fiscal for consideration.

It is also proposed that Section 2 be amended to change the way in which the exemption relating to Her Majesty (s.41) operates.  It would mean that communications with members of the Royal Family other than the Sovereign and the two people next in line to the Throne (currently HM The Queen, Prince Charles and Prince William) would no longer be subject to a class exemption.  There would still be an exemption covering those communications, but it would be subject to the public interest test.

A further proposed change includes extending the provisions of s.18 to cover the exemptions of confidentiality (s.36), Court records etc. (s.37) and Personal Information (s.38).  Section 18 removes the duty 16(1)(a) to disclose whether the public authority holds information falling within the scope of the request when refusing the request.  This derogation to that duty extends only where if the information were held certain exemptions would apply to the information.  The public authority must still explain to the applicant which exemptions would apply if it were the case that the information was held by the public authority and they are still required to consider the public interest.

The Bill also proposes some minor amendments to the exemption regarding information which is otherwise accessible to the applicant (s.25) which on a first look of the Bill do not make any real change to FOISA and the Bill’s explanatory notes confirm that.

Finally, the Bill will make changes to the powers in s.59 of FOISA.  The s.59 power permits the Scottish Ministers to vary the length of time in ss.57 and 58 of FOISA.  These relates to historical records and when exemptions cease to apply.  The amendment proposed will permit the Ministers to make, by order, separate provisions for individual exemptions and records of certain descriptions.  It gives the Ministers a greater degree of flexibility when altering the time periods concerned.

On the whole the Bill looks rather uncontroversial and the amendments proposed are to be welcomed, particularly the proposed amendment to the time limits for prosecutions under s.65.  There are further changes which could be made to FOISA to strengthen it, but it would appear that this amendment Bill to FOISA is to be followed by further Bills later in the Parliamentary session.  Hopefully the Justice Select Committee will have a look at this Bill, particulalry its provisions on prosecutions for offences under FOISA, as it considers amendments to make to the Freedom of Information Act 2000.