Access to information rights: consultation analysis

6. Technical and other issues – ensuring the Act remains fit for purpose

185. The final section of the consultation considered eleven other areas in which the post-legislative scrutiny report recommended that the Scottish Government should consult. Each of these related to matters concerning the operation of the legislation. Some of the questions relate substantively to the overall strength of the regime in terms of the rights which it provides to requesters seeking information and obligations on authorities. Others related principally to issues of operational effectiveness.

186. The responses to these questions are summarised and analysed below.

6.1 Approach to estimating cost of compliance

187. Question 21 reflected the Committee's suggestion that change be considered to make the meaning of the cost limit clearer to requesters. The consultation document explained that since both the overall cost limit (£600) and the maximum hourly rate authorities can impute for staff time (£15) have remained fixed in the Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004, the effective cost limit for most requests has remained equivalent to 40 working hours for most requests (since 600/15=40) and can be expected to remain so for the majority of requests, without significant further erosion as a result of inflation.

Question 21

Do you support changes to FOISA, and to the fees regulations, to permit authorities to estimate excessive cost of compliance in terms of staff time, rather than financial cost (the limit being set at 40 working hours)?

188. In total, 63 respondents answered this question. There were 42 respondents who indicated they would support a change of this nature, ten who indicated they would not and eleven who indicated they did not know/had no view. There were 54 respondents who provided reasons for their answer.

189. Of those expressing their support, 21 expressed reasons for doing so which broadly aligned to the Committee's reasons for supporting the change i.e. they considered that an approach based around staff time would be clearer and easier for requesters to understand.

190. A number of other respondents expressing support made more detailed comments regarding the upper cost limit, fees regulations and their implications for request handling. A number of authorities' (General Teaching Council for Scotland, SportScotland, Aberdeenshire Council and two other local authorities) called for a re-examination of the effective cost limit, currently equivalent to 40 working hours, expressing concern about the resource implications associated with the handling of large or complex requests and the potential for this to impact on the delivery of other services and statutory functions. Three of these respondents highlighted that the effective upper cost limit is substantially higher under FOISA than under the equivalent UK Freedom of Information legislation.

191. The think tank Common Weal suggested that there should be greater flexibility within the regime than at present for authorities to engage with requesters around the handling of large/resource intensive requests, including greater latitude to provide partial responses.

192. One individual respondent suggested the cost limit should be based around the length of the statutory deadline, rather than 40 working hours.

193. Seven respondents provided reasons for opposing change. Two of these (Centre for Freedom of Information – University of Dundee and Environmental Rights Centre for Scotland) referred to seeing little value in changing the approach. One other (a Scottish public authority) expressed concern about losing the ability to include non-staff related costs.

194. One individual respondent opposing the change advocated that the £600 cost limit should remain, but without continuing to be linked to a £15 per hour ceiling on imputed staff costs (i.e. so that the limit should be a simple cash cost of £600). Another individual respondent commented that there should be no fees regulations, since all information should be provided free of charge.

195. SHEIP – a working group of Scottish Higher Education Information Practitioners set their opposition in the context of their wider view that the provisions of FOISA should be brought into line with those of the EI(S)Rs, which have no defined upper cost limit.

196. The Campaign for Freedom of Information in Scotland opposed the change and commented that detailed consideration of new fees regulations should only take place after wider reform of FOISA.

197. A number of respondents indicating that they did not know/had no view or who did not respond to the question nevertheless made some comments. Notably, the Scottish Information Commissioner indicated that he is open minded about the approach to these issues. The Commissioner's response highlighted that there is scope to significantly alter the approach in this area by making changes to the fees regulations set under sections 12 and 13 of FOISA, without the need for new primary legislation. The Commissioner's response highlighted that in some circumstances a 40 working hour limit could represent a lowering of the effective cost limit, since there may still be some Scottish public authorities with staff members for whom the hourly cost of employment is still less than the £15 ceiling. However, the Commissioner also recognised that these instances will likely be fewer than in the past.

198. A range of other issues regarding effectiveness, proportionality and ensuring the rights of requesters were raised by other respondents in this category.

6.2 Transfer of requests between authorities

199. Questions 22 and 23 related to the Committee's recommendation that the Scottish Government should consult on amending FOISA to permit the transfer of FOI requests between authorities, where the authority which has received the request does not hold the information requested, but believes another authority to do so. There are currently no provisions to do this within FOISA, but there are provisions to do so within the EIRs A number of public authorities who provided evidence to the Committee suggested that making similar provisions within FOISA might improve the administration of requests, and be helpful to individuals seeking information.

Question 22

Are you aware of any examples or evidence of how the existing power to transfer requests under the EIRs regime has affected the service provided to requesters, either positively or negatively?

200. There were 58 responses to this question. Nine respondents indicated that they were aware of such examples. There were 38 respondents who indicated that they were not aware of any such examples and 11 who said they were not sure/didn't know. There were 23 respondents who elaborated on their answer.

201. Of those who said they were aware of such instances, two were local authorities confirming their own experience of transferring requests. One local authority respondent commented that it 'regularly' transfers EIRs requests to other authorities without issue. Another, Stirling Council, reflected on its own experience of the transfer of a request:

"The transfer of an EIR request, provided the requester with a smooth transition of their request from one public authority to another. It improved the request experience for the requester, and also helped create and cement closer working relationships between the two public authorities." (Stirling Council response)

202. A third local authority (East Renfrewshire Council) did not provide a specific example, but highlighted the very close working relationship councils may sometimes have with other bodies such as culture and leisure trusts, which can include the provision of administrative services. The Council's response commented that in such circumstances the refusal of a request by one body, with signposting to the other, can appear to be something of a technicality and that better service would be provided to the requester if requests were able to be transferred.

203. Other respondents indicating that they were aware of such instances provided more general comments about the issues involved in the transfer of requests between authorities. The Scottish Information Commissioner commented that only one appeal case considered by his office has related to the application of regulation 14 (the EIRs provision permitting transfer of requests). In that instance the Commissioner determined the provision to have been incorrectly applied by the authority.

204. Of the 38 respondents who indicated that they were not aware of such instances only nine provided further comments to elaborate on their response. Seven of these were from public authorities indicating that they do not/have no experience of transferring requests EIRs requests (including Moray Council, Renfrewshire Council, NHS Forth Valley, Glasgow City Council).

205. Two of these (Glasgow City Council and another local authority) indicated that they instead refuse requests, and signpost to the relevant authority. Other authorities simply indicated they had not found the need to make use of the provision.

206. The Centre for Freedom of Information – University of Dundee indicated that in its research on the EIRs it had not encountered these provisions as an issue, but nevertheless indicated the view that they are helpful in principle. SOLAR also indicated that it is not aware of any such instances.

207. Three respondents who said they were not sure/didn't know whether they were aware of any examples or evidence, or who did not answer the question, provided some relevant additional comment. North Ayrshire Council commented that they have been cautious about transferring EIR cases due to concerns about data protection (this issue was highlighted in the consultation document). The Campaign for Freedom of Information in Scotland also reflected on the need to consider the privacy of requesters noting that, 'some requestors do not want designated bodies to know that they are making information requests and quite deliberately choose who to approach for information'.

208. The Scottish Federation of Housing Associations conveyed their understanding that the provisions are rarely used in their sector.

209. Overall, responses to this question would seem to support the view that most authorities transfer EIR requests to other authorities infrequently and that the overall impact of this on the experience of requesters is likely to be limited.

Question 23

Do you favour introducing a provision into FOISA to allow the transfer of requests between authorities, similar to that contained within Regulation 14 of the EIRs?

210. There were 59 responses to this question. Views were evenly split with 22 respondents indicating that they would favour the introduction of such provisions, 22 indicating that they would not favour this and 15 indicating that they did not know/had no view. There were 44 respondents who provided further reasons for their view.

211. Of the 17 respondents who provided reasons for supporting the change most (13) gave reasons which corresponded broadly to the reasons set out in the Committee's report i.e. that this would help to improve the service to requesters of information and/or be administratively helpful to authorities.

212. Two respondents – one individual and one authority (NHS Forth Valley) qualified their support by making clear that, as under the EIRs, the ability to transfer requests should only be an option for authorities – not a requirement, citing concerns about feasibility and proportionality. SHEIP - A working group of the Scottish Higher Education Information Practitioners' indicated that this measure would have particular value as part of a more general reform of FOISA including the introduction of a 'Gateway Clause' and greater alignment with the EIRs. The think tank Common Weal also linked this issue to their own wider proposals for reform of the system, advocating that there should be a central body to help coordinate and target requests.

213. Among the 19 respondents who provided reasons for opposing change there were a number of recurring themes. The most dominant was that any change was simply unnecessary since the existing arrangements are effective. Some also expressed concerns about any change making the system less clear for requesters and/or taking control out of the hands of requesters. There were also concerns about the requester's data protection and privacy rights set out by a number of the respondents.

214. These concerns were summarised in the Scottish Information Commissioner's response:

"Transfers of requests under FOISA may result in a requester being sent back to the original public authority should the second authority not be able to fulfil the request, possibly creating frustration for the requester regarding the process and confusion over which public authority 'owns' the request at which point in time. The current practice, where a request would be formally closed (through the issue of an 'information not held' notice under section 17) by one authority, with a requester being directed to a second authority to make a 'new' information request may help to keep such lines of communication and responsibility clear for both requesters and authorities….There are also data protection issues to consider: there may be good reasons why a requester does not want a second authority to know that they have made an information request."(Scottish Information Commissioner response).

215. Seven respondents who either indicated that they did not know/had no view or who did not answer the question provided some additional comment. Most of these reflected on the balance of considerations put forward by respondents supporting or opposing change i.e. that the proposal could have benefits in principle in terms of enabling a better service to requesters, but comes with a number of administrative challenges. This was the view of Scottish Enterprise:

"There are benefits to such an approach, as long as it is subject to an obligation to adopt a process that addresses any concerns around data protection.

Allowing the transfer of requests between authorities would provide a better customer journey, with clarity on which public authority holds information, but a number of practical issues would need to be overcome." (Scottish Enterprise response)

216. One respondent (Kennedy's LLP) reflected that the change would have most value in the event of significant extension of FOISA to further entities e.g. the designation of more contractors working on behalf of authorities would likely generate more scenarios in which the transfer of a request (from authority to contractor, or vice versa) would enable a more joined up service.

6.3 Seeking Clarification

217. Question 24 considered the Committee's recommendation that FOISA should be amended with respect to time for compliance so that requests for clarification merely pause - and do not reset - the 'clock' for compliance within the statutory timescale. Under the existing statutory regime authorities have twenty working days to respond to any request. However, where a request is not sufficiently clear to allow the authority to identify and locate the information sought the authority may seek clarification from the requester. The authority's twenty working day statutory time frame is considered to recommence from the date on which a sufficiently clarified request is received from the requester.

218. Some witnesses who provided evidence to the Committee expressed concern about authorities sometimes leaving it until close to the original twenty working day deadline before seeking clarification, resulting in significant delay within the process. This was felt to represent poor customer service to the requester, and may in some instances give rise to suspicion that the process of clarification is being misused by the authority to provide themselves with more time to answer requests without formally breaching the statutory deadline.

219. The Committee suggested that this problem might be addressed by amending legislation so that requests for clarification only pause the statutory timeframe, rather than resetting it, so that any working days which have already elapsed between the authority's receipt of the request and its decision to seek clarification would be deducted from the timeframe within which the authority would be required to respond to a sufficiently clarified request once received.

220. The Scottish Government's consultation document also posited a possible 'compromise' option of allowing a defined period after receipt of a request during which the authority may seek clarification, only after which any additional days delay would be deducted from the statutory timeframe for responding to the request once sufficient clarification had been received.

Question 24

Which of the following approaches in relation to the effect of seeking clarification do you most favour:

• 1. Amending FOISA to ensure that the 'clock' is only paused, not reset, from the date clarification is requested
• 2. Amending FOISA to allow an authority a defined period in which to seek clarification if the request is unclear, after which any additional days delay will be deducted from the statutory timescale for response
• 3. Leaving the provisions of the legislation unchanged in respect to timescales
• 4. None of the above/No preference

221. There were 63 responses to this question. Of these, 17 favoured option '1' (clock only paused), seven favoured option '2' (defined period for seeking clarification), 29 favoured option '3' (no change) and 10 chose option '4' (none of the above/no preference).

222. The largest number of respondents (29) favoured making no change to provisions (option 3). However, there was a clear difference of perspectives between public authorities and other types of respondent in respect to this question. Of the 28 responses favouring no change, 22 were from Scottish public authorities. Two others, from SHEIP – a working group of Higher Education Information Practitioners and the Scottish Federation of Housing Associations, may also have represented public authority perspectives. The remaining five were from individual respondents.

223. Of the 17 respondents favouring option 1, only five were Scottish public authorities, although a further one came from an organisation which represents a category of Scottish public authorities (Community Pharmacy Scotland). Three of the responses came from individuals and the other eight came from third sector or civil society organisations.

224. Of the seven respondents who favoured option 2, four were Scottish public authorities, two were third sector or civil society organisations (Church of Scotland, Common Weal) and one was a legal firm (Kennedys LLP).

225. Of the ten who selected option 4, four were Scottish public authorities and a fifth was a representative body representing public authorities (SOLAR). The other five represented the third sector, civil society or academia.

226. Of the 29 respondents who favoured option 3, 22 provided further comment or reasons for their view that the provisions of the legislation should be left unchanged with respect to timescales. Most expressed a view that the existing provisions work adequately. There was a common view among respondents that it would be unreasonable to reduce the statutory timescale within which authorities are required to respond to any request before a sufficiently clear request has been received. A number of the respondents commented that whilst authorities generally seek clarification promptly, there can be valid reasons why in some cases it may only become apparent at a later stage that clarification is required. Respondents also reflected on the value that the process of seeking clarification can have in terms of enabling engagement with requesters, and expressed concern that any change might discourage authorities from seeking clarification.

227. Of the 17 respondents who favoured option 1 (clock only paused), ten provided comments in relation to their view. Most of these respondents felt that allowing for the 'clock' on requests to be paused rather than reset struck a more appropriate balance between the needs of the requester and the authority than the current arrangements.

228. Five of the seven respondents who favoured option 2 (defined period for seeking clarification) provided further comment on their views. These respondents generally saw this 'compromise' approach as striking the best balance between the need for authorities to have sufficient time to consider requests and the legitimate customer service expectations of requesters:

"We are of the view that this approach would strike a balance between setting reasonable expectations on authorities and ensuring prompt service to requesters." (Creative Scotland response)

229. One respondent (Kennedys LLP) suggested there would be a need to give careful consideration to the length of the defined period, noting factors that can contribute to delay in authorities identifying information requests.

230. The Scottish Information Commissioner was among respondents favouring this approach. The Commissioner reflected that adopting option 1 (clock only paused) could have the unintended consequence of incentivising authorities to refuse unclear requests as 'invalid' on the grounds that the request does not 'describe the information requested' in terms of section 8(1)(c) of FOISA. Option 2 (defined period for seeking clarification) was regarded by the Commissioner as mitigating that risk.

231. Two respondents who selected option 4 (none of the above/no preference) provided substantive additional reflections on the issues. The Centre for Freedom of Information at the University of Dundee highlighted that none of the options emphasised the importance of the obligations for authorities to respond 'promptly' to all requests. Scottish Enterprise considered that further 'hybrid' options should be explored.

232. In addition to the above analysis, it is worth noting that a number of Scottish public authority respondents to this question indicated that in terms of their own internal approach to case management they already consider the clock to be merely 'paused' rather than 'reset' by requests for clarification (Moray Council, North Ayrshire Council and two other Scottish public authorities). An individual respondent, who identified themselves as working for a Scottish public authority also indicated that their organisation takes the same approach.

Stakeholder discussion – Keeping Rights Fit for Purpose – Provisions for Seeking Clarification

Participants in the 'Keeping Rights Fit for Purpose' stakeholder discussion considered the proposal to 'pause' rather than 'reset' the clock when clarification is sought.

Discussion outcomes:

There was some divergence in views on this issue.

A risk was highlighted that an unintended consequence of the proposed change could be increased rejections of requests as 'invalid' in terms of section 8 of FOISA, if authorities are incentivised against seeking clarification.

There was discussion around the distinction between a valid request which doesn't describe what the requester intended (and should be clarified) and invalid requests (which can be rejected as such).

Suggestions were made in terms of good practice around clarifying requests early, and both parties being able to clarify and build trust.

6.4 Removal of section 48 prohibitions – Appeals about decisions of the Scottish Information Commissioner, the Lord Advocate and procurators fiscal

233. This section of the consultation sought views on whether the current prohibitions within section 48 of FOISA - which prevent the Scottish Information Commissioner from considering appeals about: a) the handling of information requests by his own office; b) the handling of information requests by the Lord Advocate in her capacity as head of the prosecution system and procurators fiscal – should, in principle be removed.

234. The consultation highlighted that with regard to the latter of these, the original policy memorandum for the Freedom of Information (Scotland) Bill took the view that it would not be within the legislative competence of the Scottish Parliament to empower the Commissioner to consider appeals about decisions of the Lord Advocate. This relates to the provisions of section 48 of The Scotland Act 1998 (the Act which established the Scottish Parliament) which stipulate that decisions of the Lord Advocate as head of the system of prosecution and investigation of deaths in Scotland are to be 'taken by him independently of any other person'.^[10]

Question 25

In principle, would you favour allowing the Scottish Information Commissioner to consider appeals concerning decisions of the Commissioner's own office, subject to assurances about the internal independence of that process?

235. There were 56 responses to this question. Of these, 29 indicated that they would be in favour of such a change, six indicated that they would not be in favour of such a change and 21 indicated that they did not know/had no view. There were 26 respondents who provided reasons for their views.

236. Of the 29 respondents indicating support for the change, 18 provided further comment in explanation of their views. Most of these respondents referred to the value that an appeal stage would have for requesters seeking information from the Commissioner's office. Three of these respondents (Scottish Information Commissioner, NHS Forth Valley, Public Health Scotland) referred to similar provisions already being in place in other parts of the UK in respect to the Information Commissioner's Office (ICO) which regulates compliance with the (UK) Freedom of Information Act 2000. Five of these respondents also qualified their support by stipulating that there would be a need to ensure the sufficient independence of the internal appeal process.

237. Four respondents who opposed the change offered comments about their reasons (Centre for Freedom of Information – University of Dundee, Stirling Council, Environmental Rights Centre for Scotland, SportScotland). These respondents all expressed concerns about the potential for actual or perceived bias within the process. There were no other detailed comments from respondents.

Question 26

In principle, would you favour allowing the Scottish Information Commissioner to consider appeals concerning decisions of procurators fiscal and the Lord Advocate (relating to the systems of criminal prosecution and investigation of deaths)?

238. There were 54 responses to this question. Of these, 30 indicated they would be in favour of such a change, 4 indicated they would not be in favour of such a change and 20 indicated that they did not know/had no view. There were 26 respondents who provided reasons for their views.

239. Those favouring change generally expressed the view that it was unsatisfactory for the Lord Advocate (and, by extension, the prosecution service in Scotland) not to be subject to the same level of scrutiny and oversight as other public services in relation to the handling of information requests. A number of these respondents (Scottish Information Commissioner, Victim Support Scotland, General Teaching Council for Scotland, Environmental Rights Centre Scotland, Centre for Freedom of Information – University of Dundee) specifically indicated their view that such a change need not be regarded as undermining the independence of the prosecution system.

240. The Commissioner clarified his view on the issues around legislative competence highlighted in the consultation paper:

"I do not consider that section 48 of the Scotland Act 1998 would necessarily preclude a right to make an appeal regarding the handling of an FOI request by the Lord Advocate. When making a decision about whether to release information under FOISA, it does not appear that the Lord Advocate is acting in any special capacity relating to prosecutions or the investigation of deaths in Scotland, which is the basis of the Lord Advocate's exclusion from this area of FOI legislation. Rather, the Lord Advocate is carrying out duties under FOISA in the same capacity as any other public authority, and should be treated as such." (Scottish Information Commissioner response)

241. Two respondents opposing change provided further comment. Kennedys LLP indicated they considered the prohibition to be necessary in order to safeguard the independence of COPFS and the Lord Advocate. East Dunbartonshire Council also considered that it is in the public interest for aspects of the work of the Lord Advocate and procurators fiscal to be 'excluded from the provisions of FOISA'.^[11]

Stakeholder discussion – Keeping Rights Fit for Purpose – Removal of Section 48 prohibitions

Participants in the 'Keeping Rights Fit for Purpose'stakeholder discussion considered the proposal to remove the prohibitions within section 48 of FOISA, thereby allowing the Commissioner to consider appeals about the handling of requests by his own office, the Lord Advocate and procurators fiscal.

Discussion outcomes:

Removal of section 48 prohibitions was widely supported by participants, particularly with regard to Lord Advocate and procurators fiscal.

Some participants thought it would be odd to have the Commissioner's office consider an appeal against itself.

Participants welcomed the fact that although decision notices can't be issued against the Crown Office, enforcement action can be taken if they too often fail to respond.

It was noted that the Commissioner can already be involved in making decisions about information in high-profile/sensitive criminal justice cases, since he does consider appeals about requests made to Police Scotland.

In practice, Commissioner won't order disclosure of information that would prejudice criminal investigations.

6.5 First Ministerial 'veto' power

242. Section 52 of FOISA provides that the First Minister may issue a certificate to overrule a decision of the Commissioner in respect of the handling of any request by the Scottish Administration (i.e. by the Scottish Ministers, or any non-Ministerial office holder or department), where the information in question is considered to be of exceptional sensitivity.

243. Question 27 sought views on whether this provision of the legislation should be retained or removed:

Question 27

Do you support the retention of the First Minister's 'veto' power in relation to the release of information held by the Scottish Administration, or do you consider the power should be removed from FOISA?

• I support the retention of the First Minister's veto power
• I consider that the power should be removed
• I don't know/have no view

244. There were 59 responses to this question. Of these, seven supported retention of the power and 22 supported its removal. There were 24 respondents who indicated that they did not know/had no view.

245. Of the seven who supported retention, three were individual respondents and four were organisations across a range of sectors (Community Pharmacy Scotland, Church of Scotland, Public Health Scotland, a registered social landlord). Four provided comments in support of their view. These generally expressed support for the principle of the power as a safeguard to be used in exceptional circumstances. One individual respondent qualified their support for retention, indicating that the First Minister should be obliged to inform other party leaders and the Lord Justice General of Scotland (the Lord President) in the event of any use.^[12]

"PHS believes the current veto power to be proportionate and fit for purpose." (Public Health Scotland response)

246. Of the 22 respondents supporting removal of the power, 20 provided comments to further explain their views. Most of these indicated the view that the power was anomalous and/or contrary to the principles underpinning access to information legislation. The Centre for Freedom of Information – University of Dundee commented that in its view the power breaches "the basic requirements of executive accountability and judicial independence by enabling the Executive to override what is essentially a judicial decision". It went on to cite the judgement of the UK Supreme Court in a case considering the application of similar provisions under the equivalent UK legislation^[13] as evidence that the power serves little purpose.

247. The Scottish Information Commissioner restated his own view that the power is contrary to the fundamental principles of FOI, serves no useful purpose and that its removal would strengthen FOI law in Scotland. The Commissioner rejected the view – presented in the consultation paper - that the fact that the power has never been used is evidence that it is regarded as 'genuinely exceptional'. Rather, the Commissioner regarded this as evidence that the power is not needed.

248. The think tank Common Weal, whist supporting removal of the 'veto' indicated that if any veto power were required this should be exercised by the Scottish Parliament.

249. Four of those who said they did not know/had no view or who did not answer the question provided some comments. Two of these simply indicated that they felt this issue was unlikely to impact their organisation (Scottish Federation of Housing Associations, Glasgow City Council). A further two referred to being able to see both sides of the argument (Kennedys LLP, Victim Support Scotland):

"We note that as the power has never been used it could be argued that it is not being misused and has proved to be reserved for exceptional circumstances. However, we acknowledge the argument that this could also be used as evidence for its removal as its lack of use could suggest it is not required." (Victim Support Scotland response).

250. However, the overall balance of respondents' views in response to this question was clearly on the side of removing the power.

Participants in the 'Keeping Rights Fit for Purpose'stakeholder discussion considered the proposal to remove the First Ministerial 'veto'. There was wide support among participants for removing the power. Participants commented the veto power is seen as exceptional, out of step internationally and potentially contrary to principles of FOI. They also suggested that the power was regarded as a "nuclear option", noting that it has never been used, even used during the coronavirus pandemic.

6.6 Presumption in favour of disclosure

251. Question 28 sought respondents views on the suggestion that a provision should be added to FOISA, similar to 10(2)(b) of the EIRs, 'that exemptions should be interpreted in a restrictive way and there should be a presumption in favour of disclosure'. This suggestion arose from the Scottish Information Commissioner's written evidence to the Committee, which suggested that this may improve the international standing of FOI legislation in Scotland.

Question 28

Do you agree that specific provisions requiring the restrictive interpretation of exemptions and a presumption in favour of disclosure require to be incorporated within FOISA?

252. There were 57 responses to this question. Of these, 22 indicated that they would be in favour of such a change, 25 indicated that they would be opposed and 10 indicated that they did not know/had no view. There were 45 respondents who provided reasons for their view. There was some divergence between the perspectives of Scottish public authorities and other respondents.

253. Of the 25 respondents who opposed the change, 22 were either Scottish public authorities or were from organisations representing a public sector perspective. One was from a third sector organisation (Alzheimer Scotland), one from a legal firm (Kennedys LLP) and the other from an individual.

254. Of the 22 responses supporting the change, five were from Scottish public authorities and a further one from an organisation which represents a category of authorities (Community Pharmacy Scotland). Nine were from civil society and third sector organisations. Seven were from individuals.

255. Five respondents (NHS Forth Valley, Scottish Federation of Housing Associations, Visit Scotland, SportScotland and another Scottish public authority) who either indicated that they did not know/had no view or who did not answer the question provided substantive comments. These all indicated a view that there is already understood to be a presumption in favour of disclosure within the legislation.

256. It is notable that that Scottish Information Commissioner's response indicates that the Commissioner has changed his view on this issue, and no longer favours this amendment to primary legislation:

"Having considered this in some detail, I have concluded that the existing system deals with the matter clearly without the need for any additional provisions which may have unintended consequences or interfere with existing provisions. For example, legislative change incorporating a presumption in favour of disclosure would not be appropriate when applied to matters of personal data, otherwise accessible information or prohibitions on disclosure. On balance, I would therefore support greater emphasis on embedding a culture and practice of a presumption in favour of disclosure, rather than incorporating it in to the legislation itself." (Scottish Information Commissioner response).

6.7 Failure to comply with a decision on time

257. Question 29 sought respondents views on the technical recommendation – originally made to the Committee by the Scottish Information Commissioner – that section 53(1)(a) should be amended to allow the Commissioner to refer late compliance with Decision Notices to the Court of Session. The consultation paper recognised that this would strengthen the position of the Commissioner in relation to authorities to require timely compliance with Decision Notices, but would wish to take the views of authorities, requesters and the wider public into account before accepting the case for change.

Question 29

Do you support amending section 53(1)(a) to make it clear that failure to comply with a decision notice on time can be referred to the Court of Session?

258. There were 57 responses to this question. Of these, 30 indicated that they would be in favour of such a change, eight indicated that they would be opposed and 19 indicated that they did not know/had no view. A total of 33 respondents provided reasons for their answers.

259. Answers suggest that there is wide support, among both civil society and third sector organisations and Scottish public authorities for this change. There were 21 comments from those supporting the change. These generally expressed the view that this would represent a welcome strengthening of the Commissioner's powers of enforcement and to encourage timely compliance on the part of authorities:

"ERCS believe this would strengthen compliance by public authorities, and improve the enforceability of decision notices issued by the Scottish Information Commissioner." (Environmental Rights Centre for Scotland response)

260. One public authority expressing support for the change (East Dunbartonshire Council) also emphasised the need for proportionate approaches in practice, noting the cost both to authorities and the Commissioner's office of referrals to the Court of Session.

261. The Scottish Information Commissioner set out his rationale for seeking this change:

"Decision Notices cannot…be referred for failure to comply with the timescales for compliance, and this can and has resulted in my office spending public money on legal fees to commence the certification procedure, only for the authority to subsequently comply, at which point I can no longer pursue the matter.

I would be supportive of amendments which may allow failures to comply with timescales set in Decision Notices to be actionable via the certification procedure, which would strengthen that aspect of the FOI process, help reduce additional expenditure on legal fees, and recognise the importance of timescales within the wider Decision Notice framework." (Scottish Information Commissioner response)

262. There were seven comments from those opposing the change. These generally expressed concerns about proportionality and cost. Some of these emphasised the need for constructive/collaborative relationships between the Commissioner and authorities. One respondent (Kennedys LLP) questioned whether any change along the lines envisaged would truly alter the status quo.

263. Of those expressing that they did not know/had no view or who didn't answer the question, three provided substantive comments. One of these (NHS Forth Valley) expressed a degree of caution about issues of proportionality. The other two (North Ayrshire Council and another Scottish public authority) expressed greater sympathy for the change.

6.8 Handling Environmental Information – Relationship between FOISA and the EIRs

264. Question 30 considered whether the definition of 'information' within FOISA should be amended so as to specifically exclude environmental information – recognising that requests for environmental information require to the responded to under the EIRs.

265. The Scottish Information Commissioner had originally proposed this change in written evidence to the Committee as an approach to simplifying responses to requests for environmental information. Currently, responses made to requests under FOISA need to apply the exemption at section 39(2) of FOISA (environmental information) in order to proceed to consider the request under the EIRs. This is generally regarded as adding to the complexity of responses.

Question 30

Do you favour amending the definition of 'information' within FOISA so as to specifically exclude environmental information, within the definition of Regulation 2(1) of the EIRs?

266. There were 57 responses to this question. Of these, 30 indicated that they would be in favour of this change, 16 indicated that they would be opposed to this change and 11 indicated that they did not know/had no view. There were 40 respondents who provided reasons for their answers.

267. There were 23 respondents who provided reasons for supporting the change. These generally expressed agreement with the proposition that excluding environmental information from FOISA would make the position clearer and lead to simpler responses to requesters, with no reduction of rights. The Centre for Freedom of Information – University of Dundee commented that their research suggests a lack of public understanding of the relationship between FOISA and the EIRs. The Centre felt a change along these lines might help to highlight the difference between the two regimes to members of the public.

268. One Scottish public authority respondent indicated that more clearly delineating the two regimes might also provide a helpful steer to authorities to ensure they are handing requests for information under the appropriate regime.

269. There were 12 comments from respondents opposing the change. Half of these indicated either that the change was simply unnecessary or that, rather than bringing greater simplicity, the exclusion of environmental information from FOISA might make the system more confusing for requesters:

"We would be concerned that amending the definition of 'information' within FoISA so as to specifically exclude environmental information, within the definition of Regulation 2(1) of the EIRs would make the system harder to navigate for the public and those requesting information." (Transparency International UK response)

270. The Campaign for Freedom of Information in Scotland expressed concerns about the workability of the approach, highlighting the difficulties and subjective judgements involved in disentangling 'environmental' from non-environmental information. Aberdeenshire Council commented that it would be simpler for authorities and members of the public if there were a single regime for all information requests.

271. There were five comments from respondents who had indicated that they did not know/had no view or who did not answer the question. These generally recognised there could be some value in the change, but expressed concern to avoid any problems or unintended consequences that might arise.

272. Notably, the Scottish Information Commissioner's response was one of these. The Commissioner was clear that he remains broadly in favour of the proposal but expressed concern in the context of the Retained EU Law (Revocation and Reform) Bill currently being considered by the UK Parliament, which proposes a process for sunsetting Retained EU Law, where it has been deemed unnecessary for preservation.

273. Several other respondents also highlighted this as a concern. Three respondents who indicated their support for the change (South of Scotland Enterprise, Highlands and Islands Enterprise, CMAL) nevertheless expressed the need for clarity about the implications of the Bill for the future of the EIRs. Two respondents opposing change (Campaign for Freedom of Information in Scotland, General Teaching Council for Scotland) cited the perceived uncertainty generated by the Bill as among their reasons for opposing change.

274. Since the closure of the consultation there have been developments in UK Government's approach to the Retained EU Law (Revocation and Reform) Bill. There is no longer an expectation that the legislation will automatically sunset provisions.

275. There were other themes in responses which spanned respondents who either supported, opposed or had no view on the change. Two respondents supporting change (Kennedys LLP and Scottish Enterprise) thought the change would bring the handling of requests for environmental information more into line with the way in which requests for personal data are already handled. However, SHEIP – a working group of Scottish Higher Education Information Practitioners, opposing the change, commented that the handling of environmental information under FOISA currently is comparable to the handling of personal information, and that any amendment which excluded environmental information only would be 'incomplete'.

276. Other respondents questioned whether changes to primary legislation were necessary in order to address the perceived problem about the current provisions adding to the complexity of response letters. Both the General Teaching Council for Scotland (opposing the change) and Scottish Federation of Housing Associations (expressing no overall view) suggested these issues might be addressed through better guidance rather than changes to legislation.

277. Overall, whilst there was a mix of views across responses there was fairly wide support expressed for the change, subject to assurances that this would not lead to gaps in rights, and general recognition of the issue the proposal seeks to address.

6.9 New exemption for Scottish Information Commissioner

278. Question 31 sought views on the proposal for a new exemption, available for use only by the Scottish Information Commissioner, applicable to information received by the Commissioner obtained by him under, or for the purposes of, fulfilling his statutory role under FOISA.

279. The Commissioner's office may sometimes receive requests for information provided to his office in connection with appeals being considered by the Commissioner. Information requested may include that which has been provided to his office by a Scottish public authority for the purpose of enabling the Commissioner to make a determination on whether that same information should be released by the authority.

280. The Commissioner generally considers that it would be undermining of the process and his own role in it if his office were to release such information against the wishes of the relevant authority. For reasons explained in the consultation paper, the Commissioner does not consider that that provisions of section 45 of FOISA (confidentiality of information obtained by or furnished to the Commissioner) provide him with a sufficient legal basis for refusing to do so. His office therefore generally relies on exemptions with FOISA, such as section 30(c) (substantial prejudice to the effective conduct of public affairs) in order to avoid doing so.

Question 31

Do you support the creation of a new exemption, available only for use by the Commissioner, specifically for information provided to the Commissioner under, or for the purposes of FOISA?

281. There were 59 responses to this question. Of these, 35 indicated that they would be in favour of such a change, six indicated that they would be against and 18 indicated that they did not know/had no view. There were 33 respondents who provided reasons for their answer. The vast majority of these were from respondents supporting the change.

282. Those supporting change generally expressed the view that this was a sensible provision, to address an unintended problem in the legislation and that the change would help to enhance the confidence of Scottish public authorities when providing information to the Commissioner.

283. Only one respondent opposing the change provided reasons. This was a member of the public who expressed the view that there should not be any exceptions from the duty to provide information.

284. Four respondents who indicated that they did not know/had no view or who did not answer the question provided further comment. Two of these (East Renfrewshire Council, Scottish Federation of Housing Associations) referred to having little experience of the issue. The think tank Common Weal expressed some caution that any change must not "make it easier to hide or avoid disclosure of information that would be legitimately released prior to the change".

285. Overall, there was wide support for the change among respondents.