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Principles of openness
2.1 Openness is central to a modern, mature and democratic society. The Scottish Executive considers that a statutory right of access to official information is essential, and that it will make public authorities more accountable to the people they serve.
2.2 The current non-statutory Code of Practice on Access to Scottish Executive Information embodies the principles which underpin the Scottish Executive's policy of open and accessible government. Under the Code there is a basic presumption that information will be released unless the harm 8 which would arise from disclosure would outweigh the public interest in making the information available. In building upon this, we propose that under the statutory regime decisions taken on whether to disclose information will in all cases be based on a presumption of openness. In practice this means that public authorities taking such decisions will assess the effect of disclosing, rather than withholding, the information. Information will be disclosed unless it is covered by an exemption. To withhold information covered by some of the exemptions a public authority will be required to satisfy a 'harm test'; for all exemptions a public authority will be required to consider the public interest in disclosure. This is discussed further in Chapter 4.
Scope of statutory regime
2.3 The term 'Scottish public authorities' is used in this document to refer to the bodies which will fall under the scope of the Scottish Freedom of Information legislation. As indicated in paragraph 1.5 above, the competence of the Scottish Parliament to legislate on rights of access to information extends to information held by the Scottish Parliament, by any part of the Scottish Administration, by the Parliamentary corporation, and by Scottish public authorities with mixed functions (i.e. reserved functions and non-reserved functions) or no reserved functions.
2.4 The Code of Practice applies only to those Scottish public authorities within the jurisdiction of the Scottish Parliamentary Commissioner for Administration (SPCA). It does not therefore apply to Scottish public authorities such as the National Health Service in Scotland (which has its own openness Code) or to local authorities, nor does it apply to important public service providers such as schools and the police. We propose that all Scottish public authorities and public service providers, including the National Health Service in Scotland, schools and the police, will be covered by the Scottish Freedom of Information legislation. This will have the advantage of bringing all Scottish public authorities under a common and well understood openness regime. In Annex A we set out an illustrative list of the Scottish public authorities which might be covered. We propose that the Scottish Freedom of Information legislation will set out the categories of such authorities covered by it. Where there might be doubt about whether a particular body is covered, it could be specified. It is proposed that the legislation will apply also to information relating to the services performed by contractors working for Scottish public authorities.
The police
2.5 The UK White Paper Your Right to Know proposed that all information relating to the investigation, prosecution or prevention of crime held by the police and prosecuting authorities be excluded from a statutory Freedom of Information regime. However, in the interests of openness and in light of the recommendations in the report into the Stephen Lawrence case 9, we consider it appropriate that the police and police authorities in Scotland should be covered by the Scottish Freedom of Information legislation. This would be in respect of all of their activities, both operational and administrative, subject to a number of exemptions protecting sensitive information, in particular information relating to criminal investigations. The approach to exemptions in the area of law enforcement and legal proceedings is discussed in Chapter 4.
The Scottish Parliament
2.6 As set out in paragraph 1.5, it is within the legislative competence of the Scottish Parliament to include within the scope of Scottish Freedom of Information legislation information held by the Scottish Parliament and the Parliamentary corporation. The Executive will consider with the Scottish Parliament authorities whether the Parliament and the Parliamentary corporation wish to be covered by the legislation.
Bodies outside scope
2.7 A number of public bodies operating in Scotland will not be covered by the Scottish Freedom of Information legislation. The following list is indicative of the types of bodies which will fall within the scope of the Westminster Freedom of Information legislation:-
Right of access to official information
2.8 We propose that there should be a general right of access to information held by Scottish public authorities. The Code of Practice requires the provision of information only, which does not have to be in the form of specific records or documents. Although in practice under the Code most information will have been provided by way of copies of documents, the Code's approach can be seen to be potentially obstructive and may lead to applicants feeling that the public authority has something to hide. The right of access will therefore cover both information and documents. This will cover both manually recorded information and information held and processed electronically. Applicants will be able to choose the form in which they wish to receive information and public authorities will be required to comply with the request if it is reasonably practicable to do so 11. There may be occasions where the cost of providing the information in the form requested would be prohibitive and could involve the imposition of significant charges on the applicant. In these cases the authority will be entitled to meet the request in a different form. The applicant will however be able to appeal against the authority's decision not to release information in the form requested (see Chapter 6).
2.9 The general right of access to information will be open to individuals, companies or any other body. Applicants will not have to state their purpose in seeking information and the access right will cover information and documents of any age held by the public authorities covered by the legislation.
Other statutory rights of access
2.10 We are considering how the Freedom of Information legislation might best relate to other statutory rights of access to information, such as those provided for in the Environmental Information Regulations 12 and by a number of statutes relating to personal information (e.g. the Data Protection Act 1998, the Consumer Credit Act 1974 and the Access to Medical Reports Act 1988).
How will applications for information be processed
2.11 We consider it important that the arrangements under which applications for information will be made are open, straightforward and simple to operate. This will assist the applicant and the public authority dealing with the request for information. A diagram setting out how an application under the legislation will be considered is at Annex B.
2.12 When seeking information, applicants will not need to quote their rights under the Act as all requests for information (except most personal data - see Chapter 5) will be dealt with under the Freedom of Information legislation. On receipt of an application for information, the public authority will consider promptly whether the information can be released. Applicants will be expected to provide public authorities with reasonable details of the information requested. If insufficient details are provided, public authorities will be able to seek further information from the applicant. Circumstances where the public authority can seek further information, or deal differently with the application, include:-
2.13 Scottish public authorities should, when dealing with such applications, have scope to minimise the cost to themselves (and of course to the tax-payer). Authorities would however be expected to be helpful when dealing with problematic applications and an applicant will always have recourse to the appeals machinery (see Chapter 6) if he or she is not content with the public authority's response to the application.
2.14 Applications will generally be processed within 20 working days of their receipt. This is the period of time currently set for the processing of routine applications under the Code of Practice. We see no reason to propose a different time limit for routine requests for information. The legislation will allow for the extension of the time limit in complicated cases or where the public authority has to seek further information from the applicant. Where charges are to be levied (see Chapter 3) the 20 day limit will apply to the time taken by the public authority to make the offer to supply information subject to the payment of charges. In all cases, applicants will be able to complain to the Scottish Information Commissioner if they feel the public authority has been unduly slow in responding to their application (See Chapter 6).
Duty to publish information
2.15 The Code of Practice commits the public authorities which come within its scope to publish, as a matter of course, a variety of administrative information which would assist better understanding of a public authority's actions. This information could include facts and analysis considered to be relevant and important in framing major policy proposals and decisions; reasons for administrative decisions; and operational information about how public services are run, how much they cost, targets, standards of service and the results achieved. The publication of such information would of course be subject to ensuring that its disclosure would not prejudice any matter protected by an exemption.
2.16 We believe that this commitment to publish information is important and that it contributes to the culture of openness. We therefore propose that the legislation should impose a duty upon public authorities to specify categories of information which the authority intends to publish. We propose that public authorities be required to adopt and maintain a scheme which relates to the publication of information and to review the scheme periodically. The form which a publication scheme takes will depend upon the nature of the work undertaken by the public authority. The scheme could be of a general nature or be more specific and identify particular items of information which the public authority would publish within a set time-scale. The approval of such schemes by the Scottish Information Commissioner would be required.
FOI and Crown copyright
2.17 Much of the material which might be disclosed under Freedom of Information legislation will be Crown copyright 13. Freedom of Information is concerned with defining a right of access to information and the means to protect sensitive information. Copyright legislation and rules, on the other hand, govern the use and re-use of information and, although the matters are linked, it is important that a distinction be drawn between them.
2.18 The UK Government has consulted widely on the management of Crown copyright 14 and it published in March 1999 a White Paper entitled The Future Management of Crown Copyright 15. The White Paper considers the implications of the growth of electronic information for Crown copyright, and in particular the need to protect the integrity and authority of official material. It also considers the growth of government tradeable information and departmental commercial activity, and sets out proposals for a more flexible system for managing Crown copyright, taking account of the evolving European Union approach on access to public sector information.
2.19 The Queen's Printer for Scotland (QPS) was established by section 92 of the Scotland Act 1998. The QPS acts on behalf of Her Majesty and exercises Her rights and privileges in connection with Crown copyright in, among other matters, Acts of the Scottish Parliament and in any existing or future works (other than subordinate legislation) made in the exercise of a function which is exercisable by any office-holder in, or member of staff of, the Scottish Administration. The QPS was specified a non-ministerial office in the Scottish Administration with effect from 1 July 199916.
2.20 In developing our proposals for legislation, we will take account of developments in copyright policy and practice.
European Convention on Human Rights
2.21 Under the terms of section 31(1) of the Scotland Act 1998, any Freedom of Information Bill presented to the Scottish Parliament will require to be accompanied by a statement by a member of the Scottish Executive that the provisions of the Bill are within the legislative competence of the Parliament. This means that the Minister's statement must, among other things, certify that the provisions are not in his view incompatible with the European Convention on Human Rights.
8 The definition of 'harm' we propose adopting for the statutory regime is discussed in Chapter 4.
9 The Stephen Lawrence Inquiry, Report of an Inquiry by Sir William Macpherson of Cluny.
10 Scotland Act 1998 (Cross-Border Public Authorities) (Specification) Order 1999 (S.I. 1999/1319).
11 This commitment is not intended to cover requests for information which cannot reasonably be complied with, for example a request for information to be supplied in an obsolete computer format.
12 Environmental Information Regulations 1992 (S.I. 1992/3240); Environmental Information Regulations 1998 (S.I. 1998/1447).
13 Crown copyright is defined in section 163 of the Copyright, Designs and Patents Act 1988 and covers those works "...made by Her Majesty or by an officer or servant of the Crown in the course of his duties".
14 Crown Copyright in the Information Age, Cm 3819, January 1998.
15 The Future Management of Crown Copyright, Cm 4300, March 1999.
16 Scotland Act 1998 (The Scottish Administration) (Offices) Order 1999 (S.I. 1999/1127).
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