Access to information rights consultation: response

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

59. The final section of the consultation addressed a number of diverse technical and other issues relating to the operation of access to information rights in Scotland. This section of the response summarises the views of respondents in relation to these and sets out the Scottish Government's position in relation to each.

5.1 Approach to estimating cost of compliance

60. The consultation sought views on 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.

Views of respondents

61. There was wide support for the proposal to amend the approach to estimating cost of compliance to reflect an estimate of staff time, without a requirement to state this in financial terms. However, some respondents believed making this change would add little value. Some had concerns about authorities losing the ability to take non-staff related costs into account.

Scottish Government response

62. The Scottish Government recognises that the current approach to defining excessive cost may not always be as clear as it could be to requesters. Whilst the de facto cost limit has remained fixed at 40 working hours for most requests, we would recognise that at a minimum there will be a need to update the relative values within the Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004 at some point. A nominal £600 figure may eventually appear outdated due to the cumulative effect of inflation. When doing so we would intend to maintain the existing position that the cost limit is approximately equivalent to 40 working hours of staff time.

5.2 Transfer of requests between authorities

63. The consultation sought views on 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.

Views of respondents

64. Views were divided in relation to the introduction of a power to transfer requests between authorities under FOISA, as can already be done presently under the EIRs. Relatively few respondents had experience of this provision operating under the EIRs. Equal numbers of respondents supported and opposed the change.

Scottish Government response

65. The Scottish Government is not persuaded of the merits of making this change. Evidence suggests that equivalent provisions within the EIRs are used infrequently and views of respondents to the consultation were divided. The Scottish Government therefore does not propose to take the matter further.

5.3 Seeking clarification

66. The consultation 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.

67. 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.

Views of respondents

68. There was a clear divergence of perspectives between Scottish public authorities and other respondents on the proposals to amend the provisions for seeking clarification. Almost half of respondents favoured making no change in this area, with a smaller minority actively supporting either of the change options put forward. However, among respondents not representing a Scottish public authority perspective there was stronger support for change, with the option of 'amending FOISA to ensure that the 'clock' is only paused, not reset, from the date clarification is requested' being the most popular among these respondents.

Scottish Government response

69. The Scottish Government is not persuaded that the case has been adequately made for changes to legislation in this area. In evidence to the Committee during the post-legislative scrutiny process the former Scottish Information Commissioner indicated that he did not consider intentional delays in seeking clarification were widespread.^[6] Nevertheless, we acknowledge that it is important that authorities only seek clarification from requesters where necessary and that in such instances, clarification should be sought as promptly as possible.

Scottish Government commitment

70. The Scottish Government will consider updates to the guidance for authorities on seeking clarification as part of the wider revision of the Section 60 Code. We will work in partnership with the Scottish Information Commissioner listening also to the views of partners across civil society, the third, private and public sectors.

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

71. 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.

72. 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.^[7] 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'.

Views of respondents

73. There was majority support among respondents for removal of section 48 prohibitions on the Scottish Information Commissioner considering appeals about information request handling by his own office and decisions of the Lord Advocate (in her capacity as Head of the systems of prosecution and investigation of deaths in Scotland) and procurators fiscal, with relatively few actively opposing the proposal. However, some respondents with expertise (e.g. Environmental Rights Centre for Scotland & Centre for Freedom of Information – University of Dundee) did express concern about the principle of the Commissioner's office considering appeals about its own decisions.

74. Significant numbers of respondents also indicated that they did not know/had no view on these issues.

Scottish Government response

75. The Scottish Government is not persuaded in principle of the merits of removing the statutory prohibition on the Commissioner's consideration of appeals regarding his own decisions as it seems that this may add limited value.

76. Under the existing law the Commissioner's office is required – like all Scottish public authorities – to carry out an internal review of its handling of any information request where such a review is sought by the requester. For requesters to most Scottish public authorities, appeal to the Commissioner represents a valuable additional level of escalation and a further level of independent assessment should they remain dissatisfied following internal review.

77. In the case of requests received by the Commissioner's office, and considered by his office at review, the value added by an additional level of escalation within the same organisation is less apparent. The Scottish Government recognises the point made by the former Commissioner that the current law does not provide a statutory right of appeal to the Court of Session for any requester who remains dissatisfied following the Commissioner's decision at review, as it does for requesters who are dissatisfied following the Commissioner's decision at appeal.^[8] The only recourse for a requester in such circumstance would be to seek a judicial review. Nevertheless, the Scottish Government is not persuaded at the current time that it is necessary to alter its position on this issue from that set out by the former Scottish Executive in its Policy Memorandum for the Freedom of Information (Scotland) Bill in 2001.^[9]

78. The Scottish Government notes that many respondents to the consultation would wish the Scottish Information Commissioner to be able to consider appeals about the Lord Advocate in her capacity as Head of the systems of prosecution and investigation of deaths in Scotland and about procurators fiscal.

79. However, as noted in the consultation document, the Policy Memorandum for the Freedom of Information (Scotland) Bill sets out a clear position that amending the legislation in order to bestow this power on the Commissioner would be outwith the legislative competence of the Parliament. There has been no reassessment of that position. Whilst we are open to exploring the position further at some juncture, we regard this issue as having limited impact on the effectiveness of access to information rights overall. As a further indication of the narrowness of the impact of this provision, it should be noted that the Commissioner has considered a number of appeals concerning the Crown Office and Procurator Fiscal Service where these have not related to matters pertaining to prosecutions or the investigation of deaths.

5.5 First Ministerial veto

80. 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. The consultation sought views on whether this power should be removed.

Views of respondents

81. Of those who expressed a view, over three times as many respondents supported the removal of the First Ministerial 'veto' power as supported its retention. However, the largest group of respondents to this question indicated that they did not know/had no view. Those advocating for removal generally indicated their view that the power was contrary to the principles of Freedom of Information. Some of those supporting its retention expressed support for the power as a safeguard for use in exceptional circumstances.

Scottish Government response

82. The Scottish Government acknowledges the view of many respondents that the power is unnecessary, and contrary to the principles of Freedom of Information. Nevertheless, the power was originally included to provide a backstop against any disclosure of exceptionally sensitive information. The Scottish Government remains open in principle to considering this issue further in the future. However, noting that no First Minister has ever found occasion to use the 'veto' power, we regard this issue as having limited day to day impact on the operation of access to information rights in Scotland. We therefore do not propose to prioritise new legislation in relation to this issue.

5.6 Presumption in favour of disclosure

83. The consultation sought 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.

Views of respondents

84. There were more respondents who opposed the introduction of specific provision for a presumption in favour disclosure into FOISA, than there were who supported it. However, there was a divergence in perspectives on this matter between Scottish public authorities and other respondents, with support for the measure stronger among civil society and third sector respondents. Among respondents of all perspectives there was recognition that a presumption in favour of disclosure should already be understood to be the expectation under FOISA.

85. The former Scottish Information Commissioner indicated that he had changed his perspective, having initially advocated the change during the post-legislative scrutiny process.^[10]

Scottish Government response

86. The Scottish Government does not see a need for any amendment to legislation in this area. That there is an existing presumption in favour of disclosure is already widely recognised.

5.7 Failure to comply with a decision on time

87. The consultation sought reviews on a technical recommendation – originally made to the Committee by the former 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.

Views of respondents

88. Of those who expressed a view there was wide support for the proposal that the Scottish Information Commissioner should be empowered to refer failure to comply with a decision on time to the Court of Session. However, a significant number of respondents indicated they did not know/had no view on the proposal. Those supporting change saw this as a reasonable measure to give the Commissioner greater leverage to require prompt compliance with decisions on the part of authorities. However, some respondents expressed concerns about proportionality, and the need for a constructive relationship between the Commissioner and authorities.

Scottish Government response

89. The Scottish Government notes the former Commissioner's reasons for wishing to see this change. However, further consideration of the potential implications would be required before the Scottish Government could commit to any future change. The Scottish Government remains open to continued engagement with the Commissioner's office about this matter.

5.8 Handling Environmental Information – Relationship between FOISA and the EIRs

90. The consultation 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.

91. The former 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.

Views of respondents

92. There was wide support for the proposal to specifically exclude environmental information from FOISA in order to improve the approach to handling environmental information and the relationship between FOISA and the EIRs. Those supporting change generally considered this could make the access to information regime clearer for requesters. However, some had concerns about the risk of unintended consequences.

93. Specifically, a number of respondents expressed concern about unintended consequences associated with the UK Government's Retained EU Law (Revocation and Reform) Bill (now Act), and the possibility of this affecting the regime in relation to access to environmental information. This included the Scottish Information Commissioner who qualified his previous support for the measure in those terms. These concerns may have abated however, in light of the UK Government's change of approach, now enacted within the Retained EU Law (Revocation and Reform) Act 2023.

Scottish Government response

94. The Scottish Government acknowledges the concern that the current interaction between FOISA and the EIRs can be unclear for requesters. However, we would share the broad concern expressed by some respondents about the possibility of unintended consequences were environmental information to be removed from the scope of FOISA altogether. Our judgement is that the inclusion of all information within the scope of FOISA, with a specific exemption for environmental information to be considered under the EIRs, is likely to remain the most robust approach to ensure the efficacy of access to information rights across the board.

95. It is an important principle that the onus should be on Scottish public authorities to ensure that they handle requests for information under the appropriate regime and that decisions in relation to the handling of requests are communicated with clarity to requesters. The Scottish Government considers there may be merit in re-considering the guidance provided to authorities in the section 60 code in this regard.

Scottish Government commitment

96. As part of the revision of the Section 60 Code, the Scottish Government will work in partnership with the Scottish Information Commissioner to consider whether there is scope to make the relationship between FOISA and the EIRs clearer for requesters without the need for amendments in primary legislation.

5.9 New exemption for Scottish Information Commissioner

97. The consultation 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.

98. 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.

99. 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.

Views of respondents

100. Amongst those who expressed a view there was majority support among respondents for a new exemption for the Scottish Information Commissioner to provide a more satisfactory basis for him to refuse to disclose information received from Scottish public authorities to enable his consideration of appeal cases. However, a significant number of respondents indicated they did not know/had no view on this issue. Some respondents, including the Law Society of Scotland, questioned whether the measure was necessary.

Scottish Government response

101. The Scottish Government remains open to legislating in the future to create a new exemption, if that would be helpful to the Commissioner and if there is clear evidence that so doing would have a material impact. However, the Scottish Government also notes that existing arrangements appear to have operated effectively since the legislation came into force in 2005, so does not perceive this issue to be a matter of urgency.