Public interest test for royal exemption to stay

Yesterday Deputy First Minister of Scotland Nicola Sturgeon MSP announced that the Scottish Government would be moving amendments at Stage 2 of the Freedom of Information (Amendment) (Scotland) Bill to remove the currently proposed absolute exemption in respect of correspondence with senior royals.  At the same time the Deputy First Minister announced that the Government would be proposing amendments which would require the Scottish Ministers to keep the list of bodies covered by the Freedom of Information (Scotland) Act 2002 under constant review.  Currently, there exists only a discretionary power upon the Scottish Ministers to do this.

The amendments to the so called “Royal Exemption” (section 41 of FOISA) were heavily criticised by a great number of people who provided evidence to the Finance Committee.  The Scottish Information Commissioner was heavily critical of the proposed amendment in her written evidence.  The Campaign for Freedom of Information in Scotland was also critical of it in their written evidence and (for what it’s worth) I also criticised the amendment in my own written evidence to the Finance Committee (see paragraphs 8-16).  An amendment to the UK Freedom of Information Act making the exemption absolute was passed into law, but it had avoided proper scrutiny having been entered into the Bill at the end stages of Parliament’s consideration.  There has been a lot of controversy surrounding the ‘Prince Charles letters’ (the release of which was vetoed by the Attorney General recently).  The argument against the introduction of the absolute exemption was essentially that it cannot be in the public interest to remove a test which considers the public interest.  It is with relief that the Government now proposes to remove the amendment and it is hoped that Parliament will vote in favour of its removal.

There has also been a great deal of consideration about the bodies covered by the Act.  FOISA was passed in 2002 and came into force in 2005.  Since its coming into force there have been significant changes in the way public services have been organised and delivered.  However, as these changes have happened the list of bodies covered by FOISA has remained largely unchanged (it has only been changed by primary legislation which has created or abolished statutory bodies).  The Scottish Ministers currently have the power to order that new bodies be covered by the legislation.  It has never been used and is currently discretionary.  The Deputy First Minister has announced that the Act will be changed to require the Scottish Ministers to keep the list of bodies covered by the Act under review.  This is important because as public authorities start using private companies and ALEOs to perform public services, it is important that information access rights are maintained and not lost.  Both the previous and current Information Commissioner’s spoke of their concern at the erosion of information access rights in Scotland as did the Campaign for Freedom of Information in Scotland.  I have also suggested a number of bodies that ought to be covered under the Act such as COSLA, The Law Society of Scotland and Faculty of Advocates (in respect of the regulatory functions only).  There are many others such as Housing Associations that ought to be covered by the legislation.

While the Freedom of Information (Amendment) (Scotland) Bill is still imperfect in that it doesn’t restore information access rights which have been lost over the last 7 years; it will be significantly improved by the amendments announced by Nicola Sturgeon.