Access to information rights in Scotland: consultation

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

The Committee proposed that the Scottish Government should consult on a number of further areas, where it considered changes might strengthen FOISA, or address specific problems in the legislation. These recommendations are generally for very specific alterations to the legislation. In some cases these are measures which had been suggested in evidence submitted to the Committee by the Commissioner.[27]

It will be less relevant in this section to consider alternative approaches to primary legislation, since the areas identified generally relate to very particular proposed alterations to FOISA. Therefore the Scottish Government's task here is more a more straightforward one - to consider the merits of each proposal for change and to weigh up whether the case for any particular change is sufficiently strong to merit new primary legislation. Responses to the questions posed in this section will assist us in making that assessment.

The Committee recommended that the Scottish Government should consult on the following:

Replacing current requirement in section 12 of FOISA for authorities to estimate the cost of compliance with a requirement to estimate the staff time involved (associated changes to the fees regulations also required).

Section 12 of FOISA provides that Scottish public authorities are not required to respond to requests for information if the cost of doing so exceeds an upper cost limit. The cost limit is set by Scottish Ministers in regulations, subject to the approval of the Scottish Parliament.

The current cost limit of £600 is set in the Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004. When estimating the cost of responding to a request an authority is only permitted to take into account the cost of locating, retrieving and providing the information requested. It is not allowed to estimate any cost for time spent considering whether exemptions apply to the information requested.

Whilst the limit of £600 has remained unchanged since FOISA came into force in 2005, there has been limited real erosion of the cost limit through inflation, since the maximum hourly rate the regulations permit authorities to impute when estimating the cost of staff members' time has also remained fixed at £15 per hour.

The setting of both the cost limit and the maximum hourly rate at constant values has meant that for many years the cost limit has remained effectively equivalent to 40 working hours for most requests. There are some exceptions. For example, where costs other than staff time - such as printing or postage - form a significant part of the costs of responding to a request, these can also be included in the cost calculation.

However, the overwhelming majority of requests are now responded to electronically, with the effect that staff time has become the only significant cost in most cases. This certainly is the experience of the Scottish Government, and we anticipate the same will be true for other authorities.

In its written evidence to the Committee the Scottish Government suggested replacing the requirement for authorities to estimate the financial cost of compliance with a requirement simply to estimate the staff time required. The Government indicated its view that this would be simpler for authorities to apply but also easier for requesters to understand.

Plainly, any change to the requirements of section 12 would also require a revision of the fees regulations. Some link between staff time and financial cost would need to remain within the regulations, since this would still be required for the calculation of fees, by those authorities which elect to exercise their right to charge fees.

It would be open to a future administration to revisit the maximum hourly rate for staff time in the regulations. However, at the current time the Scottish Government would not propose to take any action which would increase the amount which could be charged for responding to requests or which would alter the effective upper cost limit, currently equivalent to 40 working hours.

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)?

• Yes, I would support changes of this nature
• No, I would not support changes of this nature
• I don't know/have no view

Please explain your reasons for either supporting or opposing such a change or your reasons for being unsure:

6.1 Amending FOISA to allow requests to be transferred between Scottish public authorities (similar to the way in which EIRs requests can be transferred).

There is no provision within FOISA for any Scottish public authority to directly pass a request under FOISA onto another authority. Instead, where an authority does not hold the information requested but believes that another authority may do so, they should respond with a formal notice under section 17(1) of FOISA to advise the requester that the authority does not have the information requested. They should also signpost the requester to the relevant authority which may hold the information, in accordance with their duty under section 15 of FOISA to provide advice and assistance to requesters.

The EIRs, by contrast, do contain specific provision for authorities to pass requests onto other authorities in some circumstances. Regulation 14 states that where an authority has received an EIR request for which it does not hold any information, but believes that another public authority holds that information it may either:

(a) transfer the request to the other authority; or

(b) supply the applicant with the name and address of that other authority,[28]

In either case the authority which originally received the request is still required to issue a formal response to the requester, confirming that it does not have the information.

As the Scottish Government's response to the Committee's report detailed, it is our understanding and experience that the option of transferring EIR requests directly from one authority to the other is used relatively infrequently. This may be partly because of concern on the part of authorities about the data protection implications of passing a requester's details onto another authority where the requester has not explicitly asked for this to happen. The Section 60 Code of Practice is clear that authorities should not transfer requests without the requester's agreement. There is perhaps limited advantage therefore, in terms of streamlining the service to the requester, in transferring the request to the relevant authority as opposed to merely signposting the requester to contact that authority directly.

Nevertheless, the Scottish Government can see why some authorities may feel this option would enable them to provide a more joined up service to their customers, particularly in cases where the authority seeking to transfer the request has a very close association with the authority considered to hold the information. In the Committee session on 7 November 2019 witnesses referred to instances where local authorities may wish to transfer requests to their own 'arms-length' organisations, many of which are separate Scottish public authorities in their own right.[29]

Witnesses also referred to the position of Health and Social Care partnerships in which the local authority and local NHS Board work together under the oversight of an Integration Joint Board to deliver services. Local authorities, NHS Boards and Integration Joint Boards are each listed separately as Scottish public authorities in schedule 1 of FOISA, so where one receives a request which might have been more fruitfully directed to another, it can only signpost the requester to redirect their request.

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?

• Yes
• No
• Not sure/don't know

Please elaborate:

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?

• Yes, I would be in favour of such a change
• No, I would not be in favour of such a change
• I don't know/have no view

Please explain your reasons for either supporting or opposing such a change or your reasons for being unsure:

6.2 Amending the provisions of FOISA 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.

Section 1(3) of FOISA provides that if an authority requires further information in order to identify and locate the information sought in a request, and has advised the requester of that need, specifying the information required, then the authority is not obliged to respond to the request until the requester has provided the additional information. Section 10(1)(b) stipulates that in instances where this provision applies the authority's statutory 20 working day timescale begins on the date that further information has been received.

It is in light of these provisions that the statutory 20 working day timeframe within which any authority must respond to a request under FOISA is considered only to begin at the point at which the authority has received a request which is sufficiently clear to enable it to identify the information being sought by the applicant. Authorities should only seek 'clarification' in this formal sense when a request is not sufficiently clear to allow it to identify and locate the information being sought.

The Committee noted the concerns of some witnesses about public authorities failing to seek clarification in a timely manner. The Committee suggested that a potential mitigation to this issue could be provided by amending the legislation to provide that the 'clock' on the statutory timeframe is merely paused at the point at which an authority issues a request for clarification, rather than 'reset'. That is, that the number of working days which have elapsed between receipt of the original request by the authority and the issuance of the authority's request for clarification should be deducted from the statutory timeframe within which the authority must respond to the request once adequate clarification has been received.

It seems to the Scottish Government that there is a need to consider carefully the appropriate balance between allowing authorities sufficient time to respond to a clarified request once it has been received, and the legitimate expectations of requesters that they be asked for clarification promptly, if clarification is required.

The requirement to respond within the 20 working day statutory timeframe can be challenging for authorities, particularly when handling large or complex requests. Authorities cannot be expected to take forward the response to a request which does not describe the information requested with sufficient clarity to allow the authority to identify the information requested. It therefore seems reasonable that provided clarification has been sought promptly, the authority should have the full 20 working days available to respond from the date that a sufficiently clear request has been received.

Nevertheless, it is also the case that requesters will feel justifiably aggrieved if requests for clarification are not issued promptly, thereby substantially increasing the overall timeframe within which they can expect to receive a response.

One compromise could be to make provisions in the legislation preserving authorities' right to seek clarification if a request is insufficiently clear, but also specifying that unless this is done within a particular time frame, then any additional days delay in seeking clarification will be deducted from the statutory timescale for response. This would help to incentivise authorities to issue requests for clarification promptly, whilst also ensuring that authorities would continue to have the full 20 working day timeframe for responding to the request, provided they had done so.

This approach could have certain merits in striking a balance between setting reasonable expectations on authorities and ensuring prompt service to requesters. However, it would also add a degree of complexity to what is currently a fairly straightforward position.

Question 24

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

• Amending FOISA to ensure that the 'clock' is only paused, not reset, from the date clarification is requested
• 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
• Leaving the provisions of the legislation unchanged in respect to timescales
• None of the above/No preference

Please provide comment/reasons for your answers:

6.3 Removal of (section 48) prohibitions against appeals being made to the Commissioner against: the Commissioner himself; procurators fiscal; the Lord Advocate in his capacity as head of the systems for criminal prosecution and the investigation of deaths

The Scottish Information Commissioner is listed as a Scottish public authority within schedule 1 of FOISA, and is required to provide information in response to requests on the same basis as all other authorities to which FOISA applies. This creates an apparent issue in terms of the appeal process, since there could be a perceived conflict of interest should the Commissioner be asked to consider appeals against the decisions of his own office.

To avoid this problem, section 48 of FOISA stipulates that appeals cannot be made to the Commissioner in respect of the Commissioner's own decisions. However, this has the effect of meaning that the requester's only recourse if dissatisfied following the conclusion of the internal review process is to appeal to the Court of Session on a point of law only. This is the same recourse that requesters would ordinarily have available to them if they remained dissatisfied following the outcome of the appeal process.

In his written evidence to the Committee the Commissioner argues that the provision of section 48, preventing appeals to the Commissioner against the Commissioner's decisions, is not necessary. The Commissioner highlights that the UK Information Commissioner's Office (ICO) is able to consider appeals against its own decisions in relation to requests made under the UK Act, and indicates that the equivalent model could operate in Scotland.

We anticipate that before accepting the case for changes in this area the Parliament would wish to be assured that the appeal process could operate within the Commissioner's office with sufficient independence for it to add genuine value to the internal review process. We are also interested in the views of members of the public and other stakeholders on the issues of principle raised here. This consultation exercise provides an opportunity to gather evidence of these.

Section 48 of FOISA also prevents the Commissioner from considering appeals concerning the handling of requests by procurators fiscal or by the Lord Advocate in her capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland. This measure is intended to safeguard the independence of the prosecution service.

The Commissioner highlights that these restrictions have prevented his office from considering a number of appeals concerning decisions made by procurators fiscal or the Lord Advocate in relation to requests under FOISA. He also notes that the ICO is able to consider appeals against decisions made in relation to requests under FOIA by the Crown Prosecution Service in England & Wales. The Commissioner argues that his inability to consider appeals against the equivalent institutions in Scotland represents a deficit in information rights in Scotland.

The Policy Memorandum which accompanied the Freedom of Information (Scotland) Bill introduced in the Scottish Parliament on 27 September 2001 stated a clear view by the Scottish Government, formerly known as the Scottish Executive, that enabling an appeal to the Commissioner of a decision of the Lord Advocate, as head of the systems of criminal prosecution and investigation of deaths in Scotland, was not within the competence of the Scottish Parliament.[30] There has been no new assessment of the position in relation to this matter since that time. The Scottish Government will therefore consider any comments on proposals to amend the provision whilst also taking into account the position as previously stated.

Notwithstanding any issue of legislative competence, as also stated in the previous Policy Memorandum, before accepting the case for any changes in this area the Scottish Government would wish to be satisfied that there is no risk of undermining to the independence of the prosecution service in Scotland. We are also interested in the views of members of the public and other stakeholders on the issues of principle raised here. This consultation exercise provides an opportunity to gather evidence of these.

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?

• Yes, I would be in favour of such a change
• No, I would not be in favour of such a change
• I don't know/have no view

Please explain your reasons for either supporting or opposing such a change or your reasons for being unsure:

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)?

• Yes, I would be in favour of such a change
• No, I would not be in favour of such a change
• I don't know/have no view

Please explain your reasons for either supporting or opposing such a change or your reasons for being unsure:

6.4 Removal of First Ministerial 'veto' power (section 52)

Section 52 of FOISA provides that the First Minister may 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 First Minister considers the information in question to be of exceptional sensitivity.

In his written evidence to the Committee the Commissioner suggests that this 'veto' power under the Act, should be removed. The Commissioner argues that the power is inimical to the wider principles of the Act. He also argues the fact that the power has never been used illustrates that it serves no purpose.

The Scottish Government has historically taken the opposite view, considering the 'veto' power as an important safeguard. The fact that no Administration has yet used the power illustrates that it has in fact been regarded as the exceptional measure it is intended to be. Ultimately, the First Minister would be held democratically accountable by the Parliament and the wider electorate for any future use of the power.

Nevertheless, we are interested in the views of members of the public and other stakeholders on the issues of principle raised here.

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

Please provide reasons for your answer:

6.5 Add provision 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'.

Regulation 10(2) of the EIRs provides that in considering the various exceptions to the duty to provide environmental information, contained within paragraphs 4 and 5 of Regulation 10, authorities must:

(a) interpret those paragraphs in a restrictive way; and

(b) apply a presumption in favour of disclosure.

These requirements mirror the wording of the Aarhus Convention, on which the Regulations are based.

In his written evidence to the Committee the Commissioner suggested that a similar requirement be incorporated into FOISA, with regard to the consideration of the various exemptions to the duty to provide information within the Act. The Commissioner argues this would enhance the international standing of the information rights regime in Scotland.

The Scottish Government is open minded on this question. As our response to the Committee's report indicated, we are of the view that it is already well understood that there is a presumption in favour of disclosure under FOISA.

Furthermore, the requirement within the EIRs for authorities to adopt a restrictive interpretation of the exceptions, seems particularly relevant in the context of Regulation 10 since Regulations 10(4) and 10(5) contain some exceptions with very wide applicability. For example Regulation 10(4)(e) provides an exception for all 'internal communications' of public authorities.

The exceptions within FOISA by contrast are more numerous, but also more precisely defined, lending themselves more naturally to a narrow interpretation. As the Commissioner concedes, section 1 of FOISA sets a clear expectation that disclosure is the default position.

Nevertheless, the Scottish Government is not averse to any change which might more fully underline the obligation on authorities to disclose information whenever they can. We are therefore interested in the views of the public and other stakeholders on whether this would represent a positive addition to the legislation.

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?

• Yes, I would be in favour of such a change
• No, I would not be in favour of such a change
• I don't know/have no view

Please explain your reasons for either supporting or opposing such a change or your reasons for being unsure:

6.6 Amend section 53(1)(a) to make it clear that failure to comply with a decision on time can also be referred to the Court of Session

FOISA gives the Commissioner powers to issue various types of formal notice to Scottish public authorities:

• Information Notice - requiring a public authority to provide information to the Commissioner
• Decision Notice - containing the Commissioner's decision on an appeal case (these may require compliance by the authority)
• Enforcement Notice - requiring an authority to take steps to ensure its compliance with FOI law

The Commissioner can refer the failure of an authority to comply with any of the above types of notice to the Court of Session. However, at present, once an authority has complied with a Decision Notice no further action can be taken, even if the compliance has occurred outwith the required timescale. This is different from the position in respect to Information and Enforcement notices, where authorities can still be held in contempt of court if they have complied outwith the required timescale.

The change proposed by the Commissioner would allow him to certify to the Court of Session when an authority has complied with a Decision Notice, outwith the timescale for compliance set by the Commissioner in the Notice. This would mean that an authority could be held in contempt of court where it has complied late with a Decision Notice.

Bringing the position in respect to Decision Notices into line with that for Information and Enforcement notices would represent a material strengthening of the Commissioner's powers in relation to authorities, since authorities would risk being held in contempt of court should they comply late with a Decision Notice.

The Scottish Government can see why there might be merit in making such a change, in order to ensure timeous compliance with Decision Notices on the part of public authorities. However, we would also wish to consider the views of authorities, requesters and the wider public in regard to whether such a change is required, and whether it would be a proportionate measure to ensure timeous compliance by authorities.

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?

• Yes, I would be in favour of such a change
• No, I would not be in favour of such a change
• I don't know/have no view

Please explain your reasons for either supporting or opposing such a change or your reasons for being unsure:

6.7 Amend definition of "information" to exclude environmental information as defined in the EIRs

The Commissioner proposed this change in order to negate the need for the exemption at section 39(2) of FOISA, covering information, to be applied in order to allow requests for environmental information to be considered under the EIRs rather than FOISA. This goes further than the Scottish Government's own suggestion of making the exemption at section 39(2) absolute.

As the Commissioner notes in his written evidence, information that falls within the definition of environmental information, as set out in Regulation 2(1) of the EIRs requires to be considered substantively under the EIRs, rather than FOISA. However, because the requirement in section 1 of FOISA to provide information on request relates to all information, and does not exclude information capable of being considered under the EIRs, where the requester has indicated that their request is made under FOISA it is necessary to respond under FOISA, applying the exemption at section 39(2) before moving on to consider the request substantively under the EIRs regime. This makes EIRs response letters longer, and more confusing for members of the public than they might otherwise be.

The Scottish Government is open to this proposal, as a way of making the information request process more user friendly and easier to understand.

We are interested in the views of the public and other stakeholders on whether changes of this nature would be of value in simplifying the information rights landscape.

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?

• Yes, I would be in favour of such a change
• No, I would not be in favour of such a change
• I don't know/have no view

Please explain your reasons for either supporting or opposing such a change or your reasons for being unsure:

6.8 Provide an exemption for information provided to the Commissioner under or for the purposes of FOISA

The Commissioner proposed this change due to his concern that section 45 of FOISA as it stands does not fulfil the Scottish Parliament's original intention of providing a statutory prohibition on his release of information, which has been provided to him by public authorities to enable him to fulfil his role in the consideration of appeals.

As the Commissioner explains in his written evidence, section 45 has the appearance creating a statutory prohibition on the Commissioner's disclosure of information provided to him for the purposes of fulfilling his role under FOISA, except in very limited circumstances. However, the wording of section 26 of FOISA, which provides an exemption for information subject to a statutory prohibition on disclosure only provides that information is exempt if its disclosure is prohibited by or under an enactment other than under FOISA.

The Commissioner therefore takes the view that the provisions of section 45 do not provide a robust basis for him to refuse to release information provided to him for the purpose of fulfilling his role. He therefore relies on other exemptions - particularly section 30(c) (substantial prejudice to the effective conduct of public affairs) in order to avoid doing so.

The Commissioner proposes the creation of a new exemption which would specifically allow him to withhold information which has been obtained by him under, or for the purposes of, FOISA.

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?

• Yes, I would be in favour of such a change
• No, I would not be in favour of such a change
• I don't know/have no view

Please explain your reasons for either supporting or opposing such a change or your reasons for being unsure: