Changes to FOI in Scotland from 31 May 2013

Friday 31 May 2013 is the day appointed by the Scottish Ministers upon which the Freedom of Information (Amendment) (Scotland) Act 2013 comes into force.  This Act amends the Freedom of Information (Scotland) Act 2002 in some technical respects, and this post is a brief overview of the changes that will come into force next week.

Neither confirm nor deny

Section 18 of the Freedom of Information (Scotland) Act 2002 exempts public authorities from their normal requirement to identify whether information requested in a FOI request is held or not.  It applies only where certain exemptions could be claimed if the information were held.  Currently, public authorities cannot ‘neither confirm nor deny’ whether information is held if that information is personal information (exemption under section 38).  From Friday 31 May 2013, public authorities will be able to deploy section 18 where the information held is personal information.

Information available in the publication scheme

The Freedom of Information (Scotland) Act 2002 will be amended from 31 May 2013 to make it clear that information contained in a public authorities publication scheme is ‘otherwise accessible’ where applicable fees required by the public authority are set out in the publication scheme.  This will ensure that public authorities can utilise the section 25 exemption for information that is otherwise accessible to information contained within its publication scheme.

Historical Periods

Some of the exemptions in Part II of the Freedom of Information (Scotland) Act 2002 are no longer available to public authorities after a certain period of time has elapsed.  Changes to the Freedom of Information (Scotland) Act 2002 coming into force next week will give the Scottish Ministers more latitude in varying the periods that exemptions apply to certain classes of information.  They will be able to be much more specific in the exercising of this power than was previously allowed by Parliament.

Prosecution Time Limits

The time limit for prosecuting a public authority for alleged offence sunder section 65 of the Freedom of Information (Scotland) Act 2002 has been modified so as to make it possible to bring prosecutions where it appears that offences have been committed.  For all offences which have been committed on or after 31 May 2013, the 6 month time period for brining a prosecution will begin on the date that evidence which the prosecutor believes is sufficient to justify bringing proceedings comes to the knowledge of the prosecutor (and no more than 3 years after the date the offence was committed, or ceased to be committed in the case of a continuing contravention of section 65).  A certificate signed by the prosecutor as to the date sufficient evidence came to the prosecutor’s knowledge to justify brining proceedings will be conclusive of that fact.

Designation of authorities

The Scottish Ministers will be accountable to Parliament over their use (or lack of) of their power to designate bodies as public authorities for the purposes of the Freedom of Information (Scotland) Act 2002 under section 5.  The Ministers must lay a report before Parliament by 31 October 2015, and every 2 years after that, explaining why the power at section 5 has been exercised or gone unexercised.

The people whom the Ministers must consult before exercising their powers under section 5 of the Act has been extended to include ‘other persons as they consider appropriate’ in addition to those bodies covered by any proposed order (or those appearing to represent them).  This should, hopefully, open up section 5 order consultations to the public as well as the Scottish Information Commissioner.

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