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A need for balance
4.1 Although our intention is to operate as open an administration as possible, the public's right to have access to official information needs to be carefully balanced by the need to ensure that sensitive information is afforded appropriate protection. This balance is at the heart of all Freedom of Information regimes and this Chapter considers how we propose to set this balance by defining protected information and establishing the criteria governing decisions to disclose or withhold information.
4.2 Information which is to be afforded protection is commonly treated either as an exclusion - which removes the information altogether from the scope of the legislation - or as a class-based exemption or a content-based exemption. A class-based exemption protects a whole category of information and no test of harm is required to withhold information. A content-based exemption normally means that information can be withheld only if a public authority can demonstrate that disclosure would cause harm or prejudice to the protected interest, i.e. a harm test is applied. In Freedom of Information regimes it is common also to include a requirement that the public interest in disclosure be considered.
4.3 The proposals in this Chapter setting out our approach to exclusions, the public interest, exemptions, and the harm test need to be considered together with the arrangements for reviews and appeals set out in Chapter 6. The proposed independent Scottish Information Commissioner would play an important role in promoting and enforcing openness as well as the wider public interest.
4.4 In considering how to define the tests for disclosure and describe any exclusions and exemptions, we are conscious of the need to ensure that the arrangements are unambiguous, and easy for applicants to understand and authorities to operate.
The exclusions
4.5 Although we propose describing limitations to the general right of access only in terms of content-based or class-based exemptions, it will be necessary to exclude from the scope of the Scottish Freedom of Information legislation the majority of personal information, as it is covered by data protection legislation (see Chapter 5) 18; and information supplied by a Minister of the Crown or UK Government department and held in confidence, which is not within the legislative competence of the Scottish Parliament (see paragraphs 1.5, 1.6). All other information held by Scottish public authorities would be subject to the Scottish Freedom of Information legislation.
The public interest
4.6 The Code of Practice on Access to Scottish Executive Information requires public authorities to consider, in all cases where an exemption is subject to a harm test, the public interest in disclosing the information. It states that "the presumption remains that information should be disclosed unless the harm likely to arise from disclosure would outweigh the public interest in making the information available". We propose that the Scottish Freedom of Information Bill should expressly include a requirement on public authorities to consider the public interest in disclosing information. Consideration of the public interest should be a separate, identifiable step in the process of deciding whether or not information should be disclosed.
4.7 No single factor can be said to constitute 'the public interest' and it will always be necessary to consider the public interest on a case-by-case basis according to the circumstances of the information being requested. Although we do not believe that it will prove possible or be appropriate to define in the Scottish Freedom of Information legislation 'the public interest', we nevertheless intend to provide Scottish public authorities with guidance on the factors or criteria by which an assessment of the public interest in disclosing the information should be made.
4.8 The UK White Paper Your Right to Know suggested that one of the possible factors might be whether the disclosure decision was consistent with the purpose of the FOI legislation, and in this regard we will consider including a 'purpose clause' in the draft legislation.
Tests for disclosure: class-based exemptions
4.9 For categories of information covered by a class-based exemption, the general presumption is that the information will not ordinarily be released, as information has been placed in a class because disclosure would normally result in substantial prejudice to the interest in question. In effect the information covered by a class-based exemption has already been deemed to have satisfied the harm test for withholding information. We propose however that public authorities should be required to consider whether there would be a public interest in disclosing information covered by a class-based exemption. If it is considered that there is, the information would be disclosed; if it is considered that there is not, the information will not be disclosed (subject to any appeal made to the Scottish Information Commissioner).
Tests for disclosure: content-based exemptions
4.10 Information covered by a content-based exemption would require to be disclosed unless the public authority were able to conclude that to do so would cause 'harm' as defined in the harm test. Even where a public authority considered that the harm test had been met - i.e. the information should not be disclosed - the public authority would, in addition, be required to consider the public interest in disclosure. If the public interest in disclosure outweighed the harm arising from disclosure, the information would have to be disclosed.
4.11 We propose that the harm test be demanding and that it be whether disclosure would, or would be likely to, substantially prejudice the matter set out in the exemption in question 19. Our use of 'substantial prejudice' is intended to make clear that information covered by a content-based exemption should be disclosed unless the prejudice caused by disclosure would be real, actual and of significant substance. This means that, in those circumstances in which the test is applied, public authorities would be required to consider whether, in relation to the exemption in question, the disclosure of information would or would be likely to give rise to prejudice of significant substance. The use of the term 'substantial prejudice' may of course not suit every circumstance and the wording of individual exemptions may need to be tailored to the specific subject matter at hand. An example of this is the use of the term 'could lead to improper gain or advantage' in the exemption for the effective management and operations of the public service.
4.12 The proposed harm test will result in a more open regime than under the Code of Practice on Access to Scottish Executive Information in each of the areas in which it applies. The Code refers to the possibility of harm being caused and the test is the 'reasonable expectation of harm or prejudice'. Under our proposals, the test of 'would, or would be likely to, cause substantial prejudice' is the more stringent one of the probability of substantial prejudice.
Compatibility with UK FOI legislation
4.13 The Scottish Executive and the Scottish Parliament are not constrained as to what form the Scottish Freedom of Information legislation will take. However, given the interplay between the UK Government and the Scottish Executive on matters of mutual interest, it is important that due account is taken of the UK Government's proposals for a statutory Freedom of Information regime.
4.14 In areas where it is essential to maintain close cross-border co-operation, for example in relation to the investigation and prosecution of crime, there are strong arguments for ensuring that provisions in the Scottish legislation are aligned with the corresponding provisions in the UK legislation. A distinctive feature of Scots law is that the Crown Office and the Procurator Fiscal Service is the sole prosecuting agency in Scotland. This responsibility covers offences reported by UK departments and agencies such as HM Customs and Excise, the Inland Revenue and the Health and Safety Executive. The intention therefore will be to avoid any operational difficulties for the Lord Advocate and procurators fiscal when prosecuting offences reported by reserved public bodies which might arise through having a different approach to the handling of information pertaining to the investigation and prosecution of crime. We therefore propose making compatible with the UK Freedom of Information legislation the definition of the exemptions for information held by a Scottish public authority relating to law enforcement and to criminal investigations and proceedings. The exemptions under 'law enforcement and legal proceedings' are therefore set out as a combination of class- and content-based exemptions in terms similar to those being proposed by the UK Government.
Investigation and prosecution of crime
4.15 We consider it essential that the introduction of Freedom of Information legislation should not prejudice the effectiveness of law enforcement agencies to investigate and prosecute crime, or undermine public confidence in the criminal justice system. Apart from the need to avoid prejudicing live or future investigations and proceedings, other legitimate considerations include the privacy and protection of witnesses and informants; the presumption of innocence; the need to maintain the independence of the judicial and prosecution process and the preservation of the role of the court as the sole forum for determining guilt.
4.16 It will also be important to ensure that the existing disclosure regime in relation to criminal proceedings is not disturbed. The disclosure regime was recently considered by the High Court in the case of McLeod v HMA 1998 SCCR 77, and it is our intention that the Freedom of Information proposals should not interfere with the disclosure regime approved by the High Court of Justiciary in that case (and as buttressed by Article 6 of the European Convention of Human Rights).
Decision making and policy advice
4.17 We consider it necessary that government should continue to have an appropriate degree of privacy to conduct its internal debates, to receive advice, to develop policy and to make decisions. Failure to provide adequate protection for these processes can undermine a government's ability to choose objectively between options and to maintain collective responsibility. All Freedom of Information regimes afford protection to the integrity of the policy development and decision-making processes in government. In some, policy information is excluded altogether from the scope of the legislation and in a number of others it is covered by a class-based exemption.
4.18 We do not propose that 'policy advice' be excluded from the legislation, but rather that it be subject to an 'internal discussion and advice' exemption which is set out as a combination of class- and content-based exemptions. We consider that the adoption of an element of class-based exemptions will set out in a straightforward manner the information in this area which will not, subject to consideration of the public interest in disclosure, ordinarily be disclosed.
Factual background information
4.19 We consider it important to retain in the legislation the distinction drawn in the Code of Practice between policy advice and factual background information. We will continue to ensure that factual background information, on which major policy proposals and decisions has been based, is disclosed. Indeed, there will be a duty to publish background information, which will normally be made available when, or shortly after, policies are announced.
The exemptions
4.20 We consider it important that the right of access to information should apply as broadly as possible and that exemptions should be drawn as narrowly and precisely as possible. We also consider that the statutory Freedom of Information regime should, as far as practicable, be based on enforceable rights of access to information rather than on public authorities considering the release of information on a discretionary basis.
4.21 The information which is to be the subject of an exemption may be set out in a variety of ways. The numbers of exemptions, and the definitions adopted for what are frequently very similar categories of information, vary between Freedom of Information regimes. However, such regimes invariably contain exemptions for information relating to defence and national security, internal policy formulation and advice, law enforcement and legal proceedings, personal information, commercial-in-confidence information, and information received in confidence. This is not an exhaustive list. Focussing on the number of exemptions in any given regime is not, however, particularly constructive or informative. A regime with a small number of very broad, all encompassing exemptions would be significantly less open than one with a greater number of exemptions where these are drawn tightly to protect specific categories of sensitive information.
4.22 Work will continue on the precise definition of the exemptions we propose adopting in the legislation. As a general starting point we propose building upon the exemptions in the Code of Practice on Access to Scottish Executive Information. Adopting this structure of exemptions would provide a degree of continuity for both applicants and those public authorities currently covered by the non-statutory Code of Practice. We recognise, however, that there are alternative approaches and would welcome comment on this.
4.23 In Annex C we set out the categories of information which we propose be subject to either a class-based or a content-based exemption.
18 Personal information held by Scottish public authorities which is not covered by the definition of manual data in the Data Protection Act 1998, i.e. information held on unstructured files, will not be excluded.
19 The term 'prejudice' has been preferred to 'harm' on the grounds that it is more common in other legislation, such as the Data Protection Act 1998; the House of Lords Select Committee which considered the draft Westminster Bill also considered that 'prejudice' can, on balance, be considered to have the same meaning as 'harm'.
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