Stage 1 report on FOISA Amendment Bill

The Scottish Parliament’s Finance Committee has today, 2 November 2012, published its stage 1 report into the Freedom of Information (Amendment) (Scotland) Bill.  The Bill aims to amend aspects of the Freedom of Information (Scotland) Act 2002 (FOISA).

One of the amendments to the Bill has drawn particular criticism from a wide range of people and organisations, including the Scottish Information Commissioner.  The amendment at Section 1 of the Bill would remove the public interest from the “Royal Exemption” (Section 41) in FOISA.  Currently information is exempt if it relates to (a) communications with Her Majesty, with other members of the Royal Family or with the Royal Household; or (b) the exercise by Her Majesty of Her prerogative of honour.  The exemption is currently subject to the public interest test; requiring public authorities to balance the arguments for and against disclosure to arrive at a decision on whether not the public interest in not releasing the information outweighs the public interest in releasing the information.

The amendment at Section 1 of the Bill would remove the public interest test in relation to s.41 where the information relates to communications with (a) Her Majesty, (b) the person second in line to the throne, (c) a person who has acceded to the throne and become second in line to the throne.  Currently, it would mean that correspondence with the Queen and Prince Charles would be exempt under FOISA; even when the public interest would be in the information being released.

This is important, readers will probably be aware of the recent Upper Tribunal decision under the UK Freedom of Information Act which found that it was in the public interest to release certain correspondence between Prince Charles and seven Government departments.  The decision of the Upper Tribunal was vetoed by the Attorney General.  The UK Freedom of Information Act now has the same exemption as is being proposed in Scotland.  The UK amended exemption escaped proper scrutiny as it was added into a Bill late on in the parliamentary process.

The Scottish Government argues that the exemption is needed to bring Scotland into line with the rest of the UK (a rather odd argument for a Government who wants to separate Scotland from the rest of the UK).  However, the Finance Committee were not overly convinced by this argument.  It seems that arguments founded on the public interest fared better with the Committee.  It was argued by many, including Rosemary Agnew, that removing the public interest test was, by definition, against the public interest; a very sensible comment to make.  We know from the Upper Tribunal that Prince Charles likes to lobby Government on matters and that an independent tribunal looking at the correspondence found that it went far beyond “his preparation for the throne”.  Arguing for a removal of the public interest test with that as a background doesn’t help your arguments very much.

On other areas of the Bill the Committee was more supportive of the Government position.  The proposed extension of the Section 18 “neither confirm or deny” exemption to cover personal information is an uncontroversial one.  There are very good reasons as to why public authorities would not want to reveal that they hold personal information about an individual.  However, it should not become the standard response when a person asks for their personal information, wrongly, under FOISA.  Section 18 should be used rarely and only when absolutely necessary.  The fact that Section 18 comes with its own public interest test should mean that it is only used when necessary.

The proposed amendment to the “information otherwise available” exemption is uncontroversial as well and simply clarifies the current exemption.

The Bill doesn’t deal with the extension of FOISA to bodies not already covered.  However, a number of people provided written submissions and other evidence to the Committee on this point anyway.  It is an important point.  The way in which public money is spent and public services re delivered has changed drastically since 2002 (when FOISA was passed by the Scottish Parliament).  While there have been some amendments to the list of Scottish Public Authorities (primarily through primary legislation which has created, closed or merged public bodies) the Scottish ministers have never used their powers to designate new public authorities.  As more and more is being spent and delivered by Arms Length External Organisations (ALEOs) it is important that these ALEOs are subjected to FOISA.  We also have a great number of private enterprises performing public services and these organisations fall outside of FOISA.  Information access rights have been damaged and reduced over the years and the Government has made no real attempt to ensure that the position is restored to what it was in 2002 and 2005.

The Scottish Government has, thus far, refused to use this Bill as an opportunity to at least restore information access rights to their 2005 level and has also refused to use the Bill to extend rights to other organisations.  In my written evidence to the Committee I suggested that organisations such as the Law Society of Scotland and the Faculty of Advocates (insofar as information is not held for the purposes of representing their members) and COSLA should be covered by FOISA.  The Committee has invited the Government to bring before it a timetable for extending information access rights in FOISA to other organisations and details of any amendments to the power to designate.  The Committee has said that it will reconsider its position on this issue when the Bill comes back at Stage 2.

Information access rights are important and vital to the Scottish people.  It is important that this Bill makes the rights work better for people.  On the whole I do support this Bill but do think that it could go much further and is a bit of a wasted opportunity.  I hope that the Scottish Government rethink their position on Section 1 of the Bill and decide to either tighten it up considerably or, better still, remove it entirely from the Bill.

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