An Open Scotland

Reviews and appeals

Introduction

6.1 One of the most important elements of any Freedom of Information regime is the review and appeals mechanism. A public authority might, perhaps due to a conflict of interest, find it difficult on occasions to deal properly with the complex issues which some requests for information can raise. An authority might decide to err on the side of caution in such circumstances, by not disclosing information because it took a restricted view of whether disclosure would be in the public interest. This is where an expert and independent review body, using experience gained from casework, is able to exercise its own judgement whether the public interest would be served by disclosure. Experience in other Freedom of Information regimes shows that one of the main factors which leads to a real increase in openness is a system of independent review that is accessible, easy to use and pro-active.

6.2 We therefore consider that there should be an independent review and appeals mechanism and that a Scottish Information Commissioner should be appointed to promote and enforce the statutory Freedom of Information regime.

The Scottish Information Commissioner

6.3 The Scottish Parliamentary Commissioner for Administration (SPCA) is responsible for investigating complaints raised with him through Members of the Scottish Parliament that a public authority has not properly taken into account the provisions of the non-statutory Code of Practice on Access to Scottish Executive Information. The SPCA may investigate complaints against only those bodies for which he has jurisdiction. As we intend that the statutory Freedom of Information regime will apply to a wider range of Scottish public authorities than those subject to the SPCA's remit, we consider that a new post of Scottish Information Commissioner should be created by statute as an independent office holder. We propose that the Commissioner would be required to submit to the Scottish Parliament an annual report on his or her activities in promoting and enforcing the statutory regime.

6.4 We propose that the functions of the Scottish Information Commissioner should be along the following lines:-

• To investigate complaints that a Scottish public authority has failed to comply with the requirements of the Scottish Freedom of Information Act: this would include non-compliance relating to disclosure, delays and excessive charges;
• To publish reports on the outcomes of investigations, which would establish a body of precedents;
• To advise Scottish public authorities of best practice procedures;
• To promote Freedom of Information in general and in particular to raise public awareness and understanding of the Scottish legislation.

6.5 In order to carry out these functions effectively the independent Scottish Information Commissioner will need to be provided with wide ranging powers, on the following lines:-

• A power to order disclosure of information in the public interest. We consider that this power is essential in order to ensure public confidence in the statutory Freedom of Information regime. The Scottish Information Commissioner's powers would be enforceable through the courts. The Commissioner's powers would be subject to the exception that the Scottish Ministers, by collective decision of the Cabinet, would have power to issue a certificate overriding the Commissioner in certain limited specified areas (see paragraphs 6.6-6.7);
• A right of access to information relevant to an investigation by the Scottish Information Commissioner. This would include any documents which fell within the scope of the Scottish Freedom of Information Act;
• A power to review, adjust or waive charges. There may be cases where disclosure would be in the wider public interest and it would be unfair to levy a charge for the disclosure on a single applicant;
• A power to resolve disputes by mediation. This is a feature of the Canadian and Australian appeals and reviews systems. The aim would be to resolve less complicated disputes quickly and at less cost and to reduce the number of cases that proceed to formal investigation;
• A power to enter the premises of any body covered by the Scottish Freedom of Information Act, and to examine or remove documents relevant to an investigation. Schedule 9 to the Data Protection Act 1998 provides the Data Protection Registrar with such powers of inspection and seizure and a similar power is proposed in the draft Westminster Freedom of Information Bill. While the Data Protection regime also extends to the private sector - where such powers might be more commonly employed - we consider that the Scottish Information Commissioner should have similar powers. Consideration will be given to making it a criminal offence to alter, deface, block, erase, destroy or conceal documents, with the intention of preventing the disclosure of information to which an applicant is entitled or which is relevant to an investigation of the Scottish Information Commissioner.

Ministerial certificates

6.6 In keeping with the approach adopted in a number of Freedom of Information regimes, we propose that for certain categories of information and in limited circumstances the final say on the release of such information could be the subject of a collective decision of the Scottish Ministers. We consider this necessary to ensure a proper balance between on the one hand the demanding harm test, the requirement to consider the public interest in disclosure and the strong powers we propose giving to the Scottish Information Commissioner, and, on the other, the need in the interests of good government for the Scottish Ministers to determine whether information of exceptional sensitivity or seriousness should be disclosed.

6.7 In those Freedom of Information regimes where the power for Ministers to have the final say is available, it is generally limited in extent and intended to be employed only in rare circumstances. We envisage that the power to issue a Ministerial certificate should apply only to information covered by certain of the class-based exemptions. These are identified in Annex C.

The Lord Advocate

6.8 Under Section 48(5) of the Scotland Act 1998, any decision of the Lord Advocate, in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland, is "to be taken by him independently of any other person". The Lord Advocate may, for instance, decide that the disclosure of information relating to the operation of the system of criminal prosecution is prejudicial to a criminal investigation or is otherwise contrary to the public interest. In such circumstances, we consider that it would be inappropriate for the Lord Advocate's decision to be subject to review by the Scottish Information Commissioner.

6.9 We will consider how best to ensure that the independence of the Lord Advocate in such circumstances is not compromised by the powers afforded to the Scottish Information Commissioner. One option would be to exclude from the functions of the Commissioner the power to review a decision taken by the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Personal information and the Scottish Information Commissioner

6.10 The UK Government considers that a combined role for the UK Information Commissioner under the UK Freedom of Information and data protection regimes will help achieve a consistent application of the balance between personal privacy and Freedom of Information. We have considered whether the UK Information Commissioner should also enforce the Scottish Freedom of Information regime. We conclude that a dedicated Scottish Information Commissioner, charged with promoting and enforcing the operation of Scottish Freedom of Information legislation by Scottish public authorities, is more appropriate. Fostering a distinctive culture of openness in Scotland might be more difficult if it were to be enforced by a UK Information Commissioner. A single Commissioner might also find it difficult to enforce two separate and distinct Freedom of Information regimes. We are not aware of any examples of a Commissioner having responsibility for more than one Freedom of Information regime.

6.11 We believe that the arrangements for enforcing the Scottish Freedom of Information regime, under a Scottish Information Commissioner, and the UK-wide data protection legislation, under the Data Protection Registrar/UK Information Commissioner, can co-exist successfully. A description of how personal information would be treated under our proposals is set out in Chapter 5. In summary, it is proposed that most personal information will be excluded from the provisions of the Scottish Freedom of Information legislation. The majority of applications for personal information will be handled under the Data Protection Act 1998 and will therefore be subject to enforcement by the Data Protection Registrar (or the UK Information Commissioner when the roles are combined). We would expect that where issues at the appeal stage relate to the protection of personal information, the Scottish Information Commissioner would liaise with the Data Protection Registrar/UK Information Commissioner. We will consider the most practical means to ensure that such liaison would be carried out effectively.

Reviews and appeals procedure

6.12 We propose that there should be a two-stage appeals system under the statutory Freedom of Information regime. This would be similar to the system currently followed under the Code of Practice. A diagram of the proposed appeals system is at Annex D.

6.13 The first stage is the internal review. At this stage the applicant would ask the public authority to review its decision not to release information, or to reconsider the level of charges which have been levied or the time taken to respond to a request. Scottish public authorities would need to have in place effective review machinery to investigate such complaints (and the Scottish Information Commissioner would have powers to vet such machinery). The internal review would have to be conducted by an officer of the authority concerned not involved in the original decision and be completed within 20 working days from receipt of the request for a review.

6.14 The second stage would be the appeal to the Scottish Information Commissioner. It will not be necessary to submit an appeal through an MSP. On receipt of the appeal the Commissioner will decide whether the case is one which might be suitable for mediation or whether it should proceed to formal investigation. If after investigation the Commissioner decided that there should be disclosure or partial disclosure of information a disclosure notice would be served upon the public authority, who would be required to release the information.

Further rights of appeal

6.15 We propose that decisions of the Scottish Information Commissioner would be final, subject to those occasions on which a Ministerial certificate is issued. The Commissioner's decision would be subject to judicial review on the question of whether he had properly exercised his powers in reaching a decision.

6.16 We will also consider the case for providing a right of appeal of a decision by the Commissioner to an Information Tribunal, and would welcome comment on this. We recognise that there are arguments on both sides. The UK White Paper Your Right to Know and the House of Commons Select Committee on Public Administration, in its report on the draft Westminster Freedom of Information Bill ²⁰, discussed some of the advantages and disadvantages of a Tribunal. An area of further work would be to define the proposed powers of a Tribunal if it were decided to add one to the appeals machinery.

²⁰ "Freedom of Information Draft Bill", Select Committee on Public Administration, Third Report, Session 1998-99 HC 570-I, 28 July 1999.