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A commitment to openness
1.1 In Partnership for Scotland, published in May 1999 shortly after the elections to the Scottish Parliament, the Scottish Executive made clear its commitment to the early introduction of an effective Freedom of Information regime. In his statement to the Parliament on 23 June 1999, the Deputy First Minister and Minister for Justice, Jim Wallace, reiterated the Executive's commitment to openness and to the introduction of distinctive Scottish legislation on Freedom of Information. This commitment is recorded in the Executive's Programme for Government, Making It Work Together.
1.2 The Scottish Executive invites views on the proposals set out in this document for a Freedom of Information regime for devolved Scotland. Following this consultation, the Executive will prepare a draft Bill for consultation and pre-legislative scrutiny.
1.3 Pending legislation, the Executive introduced, from 1 July 1999, a non-statutory Code of Practice on Access to Scottish Executive Information1. For reasons of practicality and continuity, and to ensure that openness arrangements were in place from 1 July, the Code is based closely on the United Kingdom Government's Code of Practice on Access to Government Information. The Scottish Code is, however, policed by the Scottish Parliamentary Commissioner for Administration (the Scottish Commissioner), Mr Michael Buckley, who reports in this capacity to the Scottish Parliament. Members of the Scottish Parliament can refer to the Scottish Commissioner complaints from the public that a Scottish public authority has failed to act in accordance with the provisions of the Code. The Code is underpinned by a strong and explicit presumption of openness and makes clear that information should be disclosed unless the harm from disclosure would outweigh the public interest in making the information available.
1.4 The statutory Freedom of Information regime will build upon, and extend, the principles of openness contained in the Code of Practice. The scope of the statutory regime will be wider than the Code and will include bodies such as local authorities, schools, the police and the National Health Service in Scotland. The proposals for a statutory Freedom of Information regime should also be seen in the context of the wider, more general commitment of the Scottish Executive to run an open administration and, in keeping with the principles envisaged by the Consultative Steering Group on the Scottish Parliament 2, to adopt an inclusive approach to the development, consideration and scrutiny of policy and legislation.
Policy background
1.5 In line with the principles of devolution and the policy set out in the UK White Papers Scotland's Parliament3 and Your Right to Know4, the Scotland Act 1998 has been amended to make clear that the Scottish Parliament has competence to legislate on Freedom of Information. The amendment to Part II of Schedule 5 to the Act reserves (i.e. makes clear that it is not a matter within the legislative competence of the Scottish Parliament)
"public access to information held by public bodies or holders of public offices (including government departments and persons acting on behalf of the Crown); with the exception" (i.e. a matter within the legislative competence of the Scottish Parliament) "of information held by -
(a) the Scottish Parliament
(b) any part of the Scottish administration
(c) the Parliamentary corporation
(d) any Scottish public authority with mixed functions or no reserved functions,
unless supplied by a Minister of the Crown or government department and held in confidence." 5
1.6 The qualification for in-confidence information means that such information will be subject to the UK Freedom of Information regime. It is envisaged that any requests received for such information will be referred to the originating UK government department for a decision on its release. It is not expected that the majority of information passed to the Scottish Executive by Whitehall will be deemed to be held in-confidence.
1.7 A key aspect of the policy on Freedom of Information in the context of devolution is that any public authority should operate only a single Freedom of Information regime. The policy does not hinge on whether the information held concerns reserved or devolved matters. All information held by the above bodies in Scotland will come under the Scottish Freedom of Information regime, subject to the exception for in-confidence UK information.
1.8 Government Departments and other reserved bodies operating in Scotland (such as the Department of Social Security and the Ministry of Defence) would be subject to the UK Freedom of Information legislation. Cross-border public bodies, such as the Forestry Commission, would also be subject to the UK legislation.
A question of balance
1.9 The Executive does not make its commitment to effective Freedom of Information legislation lightly. This is not a simple area of policy and we need to strike a careful balance between the public's right to have access to official information and the need to ensure that sensitive information is afforded appropriate protection. Wherever we eventually strike that balance will no doubt disappoint some, but the Executive is committed to ensuring that the scales are tipped decisively in favour of openness. The public's right of access is discussed in Chapter 2 and possible ways of defining and protecting sensitive information in Chapter 4.
Will access to information cost?
1.10 Under the Code of Practice on Access to Scottish Executive Information, the vast majority of requests for information are answered without any charge being levied. Where there is a considerable amount of time and effort involved in officials researching information, a charge is made, although this tends to be fairly small. Possible approaches to a charging structure under the statutory regime are considered in Chapter 3.
Compatibility with UK Freedom of Information legislation?
1.11 The UK Government published a draft Freedom of Information Bill and consultation paper on 24 May 19996. A period of public consultation and pre-legislative scrutiny by committees of the House of Commons and the House of Lords has followed. The UK Government has announced a number of changes to its draft Bill in the light of the recommendations of the Committees and other representations.
1.12 The Scottish Executive and the Scottish Parliament are not constrained as to the form Scottish Freedom of Information legislation should take. However, given the interplay between the Scottish Executive and the UK Government on a wide range of matters, it is important that development of the Scottish arrangements should take account of the UK Government's proposed statutory FOI regime. In such matters as the investigation and prosecution of crime, for instance, there are strong arguments for ensuring there is a degree of compatibility between the corresponding provisions. The issue of compatibility is discussed in Chapter 4.
Personal information
1.13 In most other countries (and under the Code of Practice), access to personal information held about an individual by a public authority has proved to be one of the most popular and widely-used aspects of Freedom of Information legislation. Personal information is protected under data protection legislation which is a reserved matter7. The Freedom of Information legislation introduced in Scotland will need to be compatible with the data protection principles as set out in data protection legislation. This is discussed further in Chapter 5.
Reviews and appeals
1.14 It will be essential to establish an effective, independent review and appeals mechanism to underpin Scottish Freedom of Information legislation. The effectiveness of an openness regime is in large measure dependent on the effectiveness of the review and appeals procedures. We propose to establish a new independent Scottish Information Commissioner, who will have wide-ranging powers to challenge authorities which refuse to release information. The Scottish Information Commissioner will be able to order the disclosure of information in the public interest, with the Scottish Ministers collectively having the final say on disclosure only in certain limited and clearly defined circumstances. The proposed approach to reviews and appeals, and the role of the Scottish Information Commissioner, are considered further in Chapter 6.
Public records
1.15 There are close links between the subjects of Freedom of Information and public records. Separate consideration is being given to the need for Scottish national archives legislation. Although there are no plans to introduce this in the same timeframe as the Freedom of Information legislation, it is important nonetheless to ensure compatibility between the latter and the system for managing our public records. The links with public records are considered in Chapter 7.
A culture of openness
1.16 Effective Freedom of Information and openness is not just about legislation. It is also to do with the culture of the Scottish Executive and other Scottish public authorities. They must be open in attitude and be seen to be open. The Scottish Ministers attach great importance to a culture of openness and efforts are being made to ensure that such a culture pervades all the Executive's dealings with the public. Further discussion on the culture of openness can be found in Chapter 8.
Your views matter
1.17 The Executive does not have a monopoly of knowledge or expertise on Freedom of Information and it is committed to an open and inclusive approach to policy development. We therefore seek views and comments on all the proposals and issues discussed in this consultation document. A summary of the proposals is in Chapter 9.
1.18 This document can be found on the Scottish Executive
website http://www.scotland.gov.uk
and comments can be submitted by email to foi@scotland.gov.uk.
Contact details are set out in Chapter 10.
1 The Code is available on the Scottish Executive web site (http://www.scotland.gov.uk) and from the Scottish Executive contact detailed in Chapter 10.
2 Shaping Scotland's Parliament, Report of the Consultative Steering Group on the Scottish Parliament, December 1998.
3 Scotland's Parliament, Cm 3658, July 1997.
4 Your Right to Know, the Government's proposals for a Freedom of Information Act, Cm 3818, December 1997.
5 The Scotland Act 1998 (Modifications of Schedules 4 and 5) Order 1999, (S.I. 1999/1749).
6 Freedom of Information, Consultation on Draft Legislation, Cm4355.
7 The Data Protection Act 1984 is due to be replaced by the Data Protection Act 1998. The latter implements an EC Data Protection Directive (95/46/EC).
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