Finance Committee

Meeting date: Wednesday, September 5, 2012

Official Report 451KB pdf

---

Freedom of Information (Amendment) (Scotland) Bill: Stage 1

Everybody is in position, so we will start one minute earlier than I suggested, as we still have a fairly packed agenda.

Item 4 is the first of four oral evidence sessions in the committee’s stage 1 scrutiny of the Freedom of Information (Amendment) (Scotland) Bill. Today we will take evidence from the Scottish Government bill team. I welcome to the meeting Zoe Mochrie, Heike Stephenson and Andrew Gunn, and I invite a member of the bill team to make an opening statement.

The Freedom of Information (Scotland) Act 2002 is widely regarded as an effective piece of legislation that sets rigorous standards for public authorities to follow when responding to requests for information. It was acknowledged by the first Scottish Information Commissioner as being strong and able to withstand international scrutiny. The former commissioner also considered the law to be progressive, with authorities complying with their obligations and the public making widespread use of their FOI rights.

The act has been in operation for more than seven years and, in that relatively short period, has been successfully established as being integral to the day-to-day business of public authority administration, and has resulted in more information being made public, in the interests of accountability and transparency.

However, although the act is generally considered to be effective, weaknesses have been identified—primarily around the inflexibility of the order-making power, with regard to revising the live standard exemptions, and also in the inability to bring a prosecution. Therefore, although they are generally small-scale, the key amendments in the bill will pave the way for more information to be made publicly available earlier, and for a prosecution to be brought in the event of information that has been the subject of a request being deliberately destroyed or concealed, with a view to preventing its disclosure.

Two other amendments—one that will add clarity and another that will increase protection for personal data—are taken from the special report that was presented to Parliament by the former information commissioner. We anticipate taking forward other recommendations that are contained in the report by means of guidance or the statutory code of practice.

The limited scale of the bill is in line with the second of the Scottish Government’s six principles of freedom of information that were set out in June 2007, which commits the Government to adjusting the regime where it is necessary and sensible to do so. It is perhaps also worth noting that, in its recent report following post-legislative scrutiny of the UK Freedom of Information Act 2000, the House of Commons Justice Committee made very few recommendations for revision, although several of the recommendations would bring the UK legislation more into line with the Scottish act—for example, in terms of setting statutory timescales and on treatment of research material. To some extent, that reflects the close relationship that the two pieces of legislation have always had. When the initial freedom of information bill was being debated, emphasis was put on the need for general compatibility between the separate regimes. The same arguments seem to apply today—for example, in ensuring consistency of approach to information relating to communications with Her Majesty, given the commonality of the monarch as shared head of state.

The bill specifically does not address the extension of coverage. Extension has been the subject of consultation and Scottish ministers are clear that a decision has been deferred until Parliament has considered the amendment bill. The power to extend is already in the legislation, and, as such, it would not be in the spirit of the original act to extend coverage by means of primary legislation.

Finally, the bill, as well as resulting in anticipated secondary legislation that will result in more information being made public, also forms one of the legislative strands of the Scottish Government’s developing transparency agenda. Consultation on that, in the form of initial engagement with stakeholders, is anticipated for later this year, as the Government seeks to promote greater openness and accountability across the wider public sector.

Thank you. I have to say that it is most frustrating to realise, when one wades through such a mountain of information, that almost every question that one wanted to ask seems to have been already answered in all the documents that have been provided. It seems to be inverse—the more work one puts into reading documents, the less one has to ask, because so many questions are already answered. I will try, nonetheless, and I am sure that colleagues will do likewise.

Communication with Her Majesty is obviously a key point in the bill, and you talked about the Scottish Government mirroring the UK Government’s position. The UK bill passed through its stages in a timescale that one would suggest would not normally provide enough scrutiny—for example, its passage through the House of Lords within three days. What is your view on that and how has it impacted on legislation that we are hoping in effect to mirror?

11:30

That is a difficult question to answer, but I hope that the Scottish Parliament is given ample opportunity to scrutinise the provision, unlike your equivalents south of the border.

There was much criticism of the late introduction of the royal exemption amendment. I think that it is a reasonable amendment, and our intention is to ensure a consistent approach across the UK with regard to information of similar types. Hopefully, the committee will have sufficient time to explore quite how that will operate.

Indeed. I asked the question because we are building on existing legislation.

Unison raised concerns about the application of the public interest test. The documents have provided an answer but, for the record, can you say why the bill team does not believe that there is, in terms of communication with Her Majesty, a public-interest issue with regard to the position of the monarch, the heir to the throne and the second in line to the throne?

The proposed change will ensure that the long-standing constitutional convention surrounding the monarchy and its records is upheld. Ministers do not believe that the Freedom of Information (Scotland) Act 2002 was intended to supersede those long-standing conventions. The issue of public interest is, by its nature, a subjective test, and it is difficult to see how one would be able appropriately to apply that test against the constitutional convention and the monarch’s duty and right to counsel, warn and advise her ministers.

Why do the Environmental Information (Scotland) Regulations 2004 provide a much wider definition of Scottish public authorities than the bill does? Why did you decide on the definition in the bill?

It is partly a matter of the origins of the two different regimes. The Environmental Information (Scotland) Regulations 2004 implemented a European directive and—as you rightly note—include no protection for communications with the monarch. That protection exists, however, in the 2002 act, and we think that it is reasonable to ensure that the confidentiality of communications with the royal household is upheld through this legislation.

Can you talk about the flexibility in the timescale for the operation of the act? In evidence, we have heard differing views about whether the period of operation should be 30 years—as it is at the moment—or 15 years, or whether there should be flexibility.

As you say, the consultation responses have indicated varying views on the approach to exemptions. The 2009 consultation threw up the fact that a one-size-fits-all approach is problematic. At the moment, the 30-year rule covers eight exemptions. However, with regard to a desire to reduce the lifespan of those exemptions, we must acknowledge that there are, around certain categories and classes of information, sensitivities such as commercial sensitivity and confidentiality.

The act does not at the moment contain the power to enable an exemption-by-exemption approach to be taken. We hope to get the power to be able to do that although, obviously, the stated position of the Government is that we will reduce the majority of the exemptions to 15 years but maintain protection with regard to confidentiality and royal communications.

You talked about the fact that the bill does not provide enough leeway to enable pursuit of prosecutions. Over the period since enactment, have there been many situations in which you would have liked to prosecute but have been unable to do so?

The Committee might want to ask the Scottish Information Commissioner about that when you take evidence from her next week. We understand from her that there have been—I think—seven occasions on which there was potentially sufficient evidence to proceed with a prosecution but, because of the six months time bar, it was not possible to pursue those further.

Many of members’ questions appear to have been addressed, although I have a brief question. I understand that if the changes on restrictions that are proposed by the bill had been in place at the introduction of the Freedom of Information (Scotland) Act 2002, only one freedom of information request would have been impacted on. Is that correct?

Do you mean in terms of the royal exemption?

Yes.

I believe that one Scottish Government request would have been impacted on, but I cannot speak for the wider range of bodies that are covered by the Freedom of Information (Scotland) Act 2002.

Okay. I thank you for that.

I want to explore the extension of coverage. I understood the panel’s argument to be that it is not necessary to look at extension in the context of the Freedom of Information (Amendment) (Scotland) Bill because secondary legislation would cover it. However, might one not make the perhaps quite controversial argument that the level of consultation is much higher for primary legislation, so there could be a case for including extension in primary legislation in order to enable that degree of consultation with the bodies that might be affected? For example, it seems strange to me that a council housing department, which is supported by tenants’ rent and the Scottish Government, is subject to FOI legislation, while a registered social landlord who may have received stock from the council—again supported by tenants’ rent and the Scottish Government—is not and tenants are aligned with what the regulator is prepared to publish about its inquiry. Is it because the issue is technical that we are not looking at extension at this point? Is it likely that there will be secondary legislation on extension?

There has certainly been no lack of consultation on the extension of coverage—it goes back several years. Scottish ministers are anxious to take a proportionate approach. Obviously, the power to extend coverage is in the act and the provision is there in order to extend coverage. It would not be in the spirit of the original legislation to use primary legislation to put into practice a power that already exists.

Clearly, there are anomalies with the situation. However, the position of Scottish ministers is clear; we have consulted and a decision will be deferred until—this is a sequential issue—Parliament has considered the Freedom of Information (Amendment) (Scotland) Bill.

It is also important to place the matter in context. Extension is sometimes seen as a be-all and end-all, but there are other means of acquiring information from bodies that are not covered, and the wider transparency agenda is intended to cater for that. For example, “The Scottish Social Housing Charter” is opening up routes to information. That is not extension; it is another route through which to access information.

The point about primary legislation is that it is subject to a degree of parliamentary scrutiny to which secondary legislation is not subject. If organisations have concerns about extension, primary legislation provides a better opportunity for discussing their concerns. However, that may be an unfair matter to raise with you, as it is a policy issue.

It is a policy issue, and the minister will attend the committee next week. We have been through consultation and business regulatory impact assessments have been undertaken. The position is clear—the decision will be deferred.

Welcome to the committee. In his letter to the committee, the Minister for Parliamentary Business and Chief Whip mentions an issue that relates to the proposed procurement reform bill. There has been concern among the public about the lack of access to information on the same basis from private sector organisations under the freedom of information legislation and the minister states:

“I would urge the Committee to consider the very real impact that procurement reform could have on the availability, to the public as well as to the private sector, of information relating to public sector spending.”

I regard that as referring to public contracts that are given to private sector organisations, and the need to open that area up and establish greater transparency. How does the Government bill team view the interaction between that proposal and what is happening through procurement reform to open up and make more transparent the relationship between Government and the public sector and private sector organisations? There is an obvious public interest in what happens in that regard.

At present, we are only at the consultation stage of the procurement reform bill. There will be on-going contact between officials in order to incorporate elements of transparency in the bill.

To go back to the previous answer, we view the issue as forming part of the wider transparency agenda. There are already freedom of information clauses in contractual arrangements, so it is not as if the information is not accessible. The Public Records (Scotland) Act 2011 is also putting in place structures and records management policies that increase access to private contractual information. There is a multistrand approach, of which the procurement reform bill will form one element, but there are discussions to be had.

So, you are highlighting that element as part of a wider programme of transparency.

To pick up on Dr Murray’s point about consultation on primary legislation, the proposed procurement reform bill gives you an opportunity for extensive consultation and open discussion in the appropriate committee on that issue as it relates to private sector organisations that contract with the public sector. We can open that discussion out a lot more.

That proposed bill is certainly recognised as being an opportunity within the transparency agenda on which we are committed to consulting, and we certainly envisage, and are committed to taking forward, stakeholder engagement later this year. It is one element of that agenda.

I will start with the royal family. The point has been made elsewhere that, in other areas of legislation, the privilege—or whatever you want to call it—of the royal family is gradually being reduced. It has been said that royal privilege is a long-standing convention, but this Parliament is not afraid of changing long-standing conventions. Why do we have to be so protective in the area of freedom of information when in other areas we are becoming more relaxed about the royal family?

It is about equality of treatment under the two regimes that operate in the United Kingdom. As Andrew Gunn said, there has always been a degree of complementarity between Scottish and UK acts in areas of common interest. Where it is considered advisable to ensure cross-border co-operation, exemptions in Scottish legislation are intended to be compatible with the relevant provisions in the UK freedom of information legislation. Ministers believe that the same argument applies to the commonality of the shared monarch.

Why is the monarch treated differently? We treat charities differently in Scotland to how they are treated in England, even when they are the same charities, so why is there a fear of treating the monarchy differently?

The monarchy occupies a unique position in British life. The monarch is appointed for life and has the right and duty to counsel her ministers and her Government, which includes the Scottish ministers and the Scottish Government as much as the UK ministers and the UK Government.

Okay.

Secondly, the point has been made that the voluntary sector may be reluctant to use the freedom of information legislation because it might affect its relationship with those from whom it requests information. Is that just something that we cannot do anything about, because the voluntary sector might be afraid to use whatever legislation is in place?

11:45

The trend is worrying. We are not quite sure why voluntary organisations are so reluctant to use the legislation. It is useful that the Scottish Information Commissioner’s office has undertaken research on that and brought it to public authorities’ attention. What we should do to encourage such organisations to make better use of the 2002 act is not entirely clear.

Perhaps we need to follow that up with organisations.

My third point follows up what Dr Murray and others talked about and concerns extending the number of bodies that the legislation includes. I take the point that the power exists, but that is a little academic, given that—as far as I am aware—it has not been used. As councils hive off parts of themselves—that has happened in Glasgow—does the amount of information that is covered by FOI legislation reduce? Big chunks of information are leaving the public sector and going into arm’s-length external organisations, trusts or whatever the bodies are called. The amount of bodies that are covered seems to be contracting, so it is—even to stand still—surely necessary to expand the number of bodies that are included.

Ultimately, extension is a political decision. The Scottish ministers’ view on that is clear. They have consulted contractors, Glasgow Housing Association and various other bodies and the decision was made to defer the decision on extension.

I take your point about ALEOs and so on being hived off. The consultation on extension did not show significant unmet demand—indeed, it showed almost no evidence of unmet demand for information, which should still be available in the majority of cases through the commissioning public authorities. A route to information should still exist; after all, commissioning authorities are responsible for funding such organisations. Consultation has shown that most members of the public prefer to go to a commissioning public authority as a first port of call for information.

I take the point—that is right in some cases. Glasgow City Council has instructed some of its ALEOs to adhere to the legislation, but I am not sure whether that is the case for Glasgow Housing Association, which the council does not control as much.

I am a little surprised that you say that there is no evidence of unmet demand. For example, some of us have tried to find out about Glasgow City Council’s private finance initiative contracts with the private sector. The assumption must be that the council and the private sector are both embarrassed by agreements and do not want them to be in the public domain. It is in neither side’s interests to get the information in the public domain, and we as the public have no way of accessing it. Surely that is not transparency.

As far as I am aware, Glasgow Housing Association operates in the legislation’s spirit. It will be interesting to see the impact on the issue of the criteria and the outcomes that are set under “The Scottish Social Housing Charter” to make more information transparent and accessible. The Scottish Housing Regulator regulates that.

What about, say, a contract between a council and the private sector that neither wants to let the public see?

A council will be subject to the legislation, so if it holds a contract, the standard request process can be followed. If a council invokes exemptions, that is its right. The ultimate appeal is to the Scottish Information Commissioner.

If a confidentiality agreement exists, the result of all that process is that we do not get access to the information. Surely the whole point is to make everything more transparent, is it not?

The Scottish ministers are certainly fully committed to transparency, but the decision on whether to extend the legislation to contractors and housing associations is ultimately political.

Thank you. I will raise the points with other people.

I thank committee members.

I still have some questions to ask. With regard to the lifespan of certain exemptions, the Scottish Government has said that it has near-universal support for the changes to the definition of historical records. However, the Commission for Ethical Standards in Public Life in Scotland has said that it is

“concerned that the level of flexibility proposed will lead to a more complex and less accessible Freedom of Information system.”

What is your response to that?

I do not see much in the financial memorandum to suggest that introducing flexibility will cost more to implement. Is your view that there will be zero cost? What is your view on the suggestion that flexibility will make the system less accessible?

We are certainly aware of the comment about increased complexity. There is no denying that removing more exemptions from the blanket list of 30 exemptions—putting in more subsections to take out more records—will increase complexity. We are committed to consulting on a draft order before putting it into effect, which will give us another opportunity to tease out any issues around complexity that public authorities may envisage. However, we feel that there will not be a significant increase in the level of complexity, and that any increase will be more than counterbalanced—in fact, outweighed—by the gain in the increased amount of information that will be made public.

There is a balance to be struck, which I would anticipate being teased out during consultation on the draft order. However, allowing for a slight increase in the level of complexity, more information will be made public, which is, after all, the ultimate goal.

In terms of costs—

I am sorry to interrupt, but the financial memorandum states:

“Information requests are estimated to cost the Scottish Government £236”.

Would additional complexity add to the cost of delivery?

That is a slightly different issue. The calculated cost of an information request to the Scottish Government is £236. The fact that different exemptions will apply is unlikely to have a significant impact—if any—on the number of requests that come in to an organisation. The overall costs of responding to FOI requests—which would currently be absorbed in the day-to-day running costs of any public authority—are very unlikely to change.

I would have thought that there would be additional costs. Even the need for someone to check which particular regime they are following would surely take time and add to the cost.

I suspect that there is the potential for a minimal impact in that respect. The consultation process should tease out any relevant cost implications.

On the same point, it is important to stress that the intention to release further information is not necessarily proactive. If and when the order-making powers come in, it is not necessarily the case that all public authorities that are faced with different exemption lifespans will overnight be releasing information 15 years earlier than they would do at present; that would be entirely up to the individual public authority.

In all probability, the release will be reactive, as it has been before, so that the new lifespans will be applied when a request comes in. The changes will not necessarily create any more requests—it is just that slightly different rules and regulations will apply when an authority responds to a request. It will be entirely up to the individual public authority whether it takes a proactive or reactive approach.

In my view, complexity always seems to add to costs.

You will be aware of concerns that were expressed to Universities Scotland by its members. The organisation says:

“Notwithstanding the exemption for on-going research ... any limit on a University’s ability to accept information in confidence for an extended period may prejudice its ability to secure access to such data and therefore its ability to conduct the highest quality research.”

Are you able to provide any reassurance that such FOI exemptions will not be reduced to 15 years, given the impact that that might have on flexibility?

As I think we set out in our proposals, we are aware of concerns across the university sector, primarily with regard to research data and donations to libraries for research purposes. Largely for that reason, the Scottish Government is not proposing to change the lifespan of the section 36 exemption, which relates to confidentiality.

Thank you for that clarification.

On the £236 figure, how much does the Scottish Government currently spend a year on responding to FOI requests?

I think that our most recently published cost data, which I believe came out in 2010, estimated costs to the Scottish Government to be in the region of about £500,000. However, I can certainly get back to the committee on the matter.

That means that you respond to just over 2,000 requests a year.

The figure is just slightly under that, but I can certainly provide the committee with infinite detail on costing arrangements.

Obviously you hope that a benefit of flexibility and people being able to get information in less than 15 or 20 years is that they will not have to make so many requests. Surely, however, most requests are fairly short term in nature; people who submit requests to the Scottish Government often want to find out information about things that happened six months or a year previously. Will there be a significant difference? After all, the financial memorandum says:

“it is premature to identify long term savings from the Scottish Government’s policy of early release of information.”

I do not believe that the bill will make a significant difference—for exactly the reasons that you have just given. The vast majority of requests are for current information and under current Scottish Government policy information is released after 15 rather than 30 years. That is a general rule—for the past two or three years, for example, the National Archives of Scotland has been opening its files at 15 years—and I do not think that there is as yet any tangible evidence that the number of requests has come down.

I note that the Scottish Government has tried to bring information into the public domain perhaps earlier than it needs to under legislation.

That brings this evidence session to a close. Despite fire alarms and what have you, we are actually two minutes ahead of schedule. I thank the witnesses for their attendance and contributions, and I thank colleagues for their questions.

Before I call a one-minute suspension to allow for a change of witnesses—after which we will carry on with agenda item 5—I remind everyone that the committee will continue its stage 1 scrutiny of the Freedom of Information (Amendment) (Scotland) Bill at its next meeting, when it will hear its remaining three oral evidence sessions, including the minister, Brian Adam.

11:58 Meeting suspended.

12:00 On resuming—