Subordinate Legislation
Freedom of Information (Scotland) Act 2002 (Historical Periods) Order 2013 [Draft]
Good morning, and welcome to the 32nd meeting in 2013 of the Local Government and Regeneration Committee. I ask everyone to ensure that they have switched off their mobile phones and other electronic equipment.
We have apologies from Stuart McMillan, and we are joined by Stewart Stevenson as a substitute. Welcome back, Stewart.
Before we move on, I advise members that there is a slight change to the published agenda. We will start with items 3 and 4 on the agenda in order to allow the Deputy First Minister to attend the Infrastructure and Capital Investment Committee at 10 am. We will then move on to item 1, which is with the Scottish Public Services Ombudsman.
Item 3 is consideration of an affirmative Scottish statutory instrument, the Freedom of Information (Scotland) Act 2002 (Historical Periods) Order 2013. We have one panel of witnesses to discuss the order. I welcome Nicola Sturgeon MSP, the Deputy First Minister and Cabinet Secretary for Infrastructure, Investment and Cities, who is accompanied by Sam Baker, team leader, and Andrew Gunn, FOI officer, from the Scottish Government freedom of information unit. I welcome you all. Deputy First Minister, would you like to make any opening remarks?
The Deputy First Minister and Cabinet Secretary for Infrastructure, Investment and Cities (Nicola Sturgeon)
Yes—thank you, convener.
The order that is before the committee today reduces the lifespan of a number of FOI exemptions from 30 years to 15 years. That continues the Government’s evolutionary approach to ensuring that freedom of information legislation remains relevant and responsive to the ever-increasing demand and expectation for information, and it aims to make information publicly available earlier.
Our previous consultation highlighted the need for a more flexible order-making power to allow for the revision of the lifespans of individual exemptions and types of record, and that flexibility was introduced through the Freedom of Information (Amendment) (Scotland) Act 2013, which came into force in May.
Since 2009 it has been Government policy to open preserved files that are held at the National Records of Scotland at 15 years rather than following what was commonly termed the 30-year rule, which dated from earlier legislation. That exercise has resulted in more than 12,000 files being opened 15 years earlier than originally scheduled, which places significant amounts of public information in the public domain at a much earlier date than was anticipated. In line with that policy, information dating from 1998, which was originally scheduled for opening in 2029, will become available in the new year.
In the Government’s experience to date, the earlier release of information has enhanced openness and transparency as well as creating interest in the information that is made available. The draft order will, if it is passed, reduce the lifespan of a number of the commonly used FOI exemptions to 15 years so that they can no longer be used for information that is more than 15 years old. That will apply, for example, to exemptions relating to the development of Government policy, free and frank advice and commercial interest.
However, as a result of consultation feedback, the order will keep the 30-year life span for exemptions covering legal advice and information that is provided in confidence. It will also provide for a separate period for the exemption covering communications with the royal family by linking the lifespan of the exemption to the date of the death of the monarch or relevant member of the royal family.
The great majority of respondents to the consultation expressed support for the draft order, and most agreed that it would be unlikely that they would wish to withhold information of the types covered by those exemptions if it was more than 15 years old. However, we have taken care to ensure that the administrative burden on public authorities is kept to a minimum. We have committed to reviewing the impact of the order a year after it comes into force so that we can consider its impact on authorities and see whether any further changes might be appropriate in future.
In conclusion, the order is the third substantial piece of freedom of information legislation to be considered by the Parliament this year. The 2013 amendment act, which was passed unanimously in January, added strength to the original act. The first order, extending coverage of the legislation, which the committee discussed in September, comes into effect next April. The order that is before us today strengthens the FOI regime considerably.
I am happy to answer any questions that the committee might have.
I have three relatively short questions, which I will put to you all together.
First, can you remind us roughly—you do not have to give the exact figure—how many Scottish public authorities are covered by the 2002 act? Secondly, are they under any legal obligation to deposit with the National Records of Scotland records that might be subject to disclosure after 15 years? Thirdly, will the order that we are considering have the effect of creating additional work for the National Records of Scotland if the answer to question 2 is what it might be?
I am happy to undertake to give a bit more information in writing on the position with regard to the National Records of Scotland and the implications for its workload. It is obviously up to that body what information it holds.
On your first question, I do not have the precise number here, but it is in the high thousands, numbering approximately 10,000 public authorities. We can find a precise number for you, but the act’s coverage is very broad and wide ranging.
With regard to the workload on the National Records of Scotland, the order is not intended to create a workload, and it is not immediately clear to me why that would be the case. The same records are being released—they are just being released a lot earlier. We can certainly provide more information for the committee on the impact on the National Records of Scotland if that would be helpful.
I was aware that the number of bodies that will be affected is in the thousands. If the records are to be made available to the public, they need to be somewhere. If the time period has been reduced to 15 years, they have to be in that place—which I assume would be the National Records of Scotland—15 years earlier. I just wondered whether there were any implications associated with that, and indeed whether the records from those thousands of public bodies all end up in the National Records of Scotland. Where are the records to be disclosed?
The order obviously has an impact on the ability of exemptions in the 2002 act to be relied on after 15 years rather than 30 years. With regard to the National Records of Scotland, there has been a big focus on proactive release over the past few years to reduce the administrative burden on public authorities from FOI legislation.
In its evidence in response to the consultation on the order, the NRS said:
“In consequence”
of proactive release,
“the number of FOI requests received by the Keeper for access to closed government files has shown a sharp decline”.
It continued:
“it seems likely that administrative savings could be made, as less information may need to be redacted in the future, were fewer exemptions to apply.”
That shows the National Records of Scotland’s view of the likely impact on it. However, I am more than happy to reflect on whether further information can be provided to the committee—just for general interest—on the implications of the order for the NRS.
How do we compare to other countries with regard to the 15-year or 30-year rules? I do not mean just Westminster, but Wales and other countries. Are we more liberal than them?
The United Kingdom is also reducing the lifespan of certain exemptions to 20 years. It is clear that other countries will have their own specific rules on the matter.
I will not make definitive claims about whether Scotland’s position on FOI is better than any other country’s position, but we are known—and seen—to have strong and robust FOI legislation. The changes that have been made during this year through the 2013 amendment act, the order extending coverage of the FOI legislation and the order that is before us today will further strengthen the FOI regime.
Can you expand on your comments about the exemption of legal advice from the change in the time period? You said that legal advice to Government will remain under the 30-year rule.
Yes. There is no change to the current exemption under section 36 in the 2002 FOI act, which covers legal advice and information that is given in confidence. The definition of “historical period” will remain at 30 years rather than moving to 15 years. That, together with the position on communications with the royal family, reflects the feedback that we received in the consultation.
I am just curious as to why you would leave out legal advice.
You indicated that the UK Government is expected to reduce the time period from 30 years to 20 years. What will happen with communication between the Scottish Government and the UK Government when there are two different time periods—15 years and 20 years—in the respective pieces of legislation?
If we hold the information, our freedom of information rules would apply. If the information is held by the UK Government, its rules would apply. If the information concerns communication between the UK Government and the Scottish Government and we hold that information, our rules and time periods would apply.
There are already differences between Scottish and UK freedom of information legislation. There are some reductions in lifespan in Scotland to 15 years—for example, in section 33 of the 2002 FOI act—whereas in the UK the lifespan will remain at 30 years. The order may lead to some other differences but, for information that is held by the Scottish Government, our rules will apply.
You mentioned that you do not foresee any difficulties with the timescales for the authorities involved. Are there any cost implications from the order?
Public authorities these days should already be operating in a way that is designed to minimise the administrative burden of freedom of information legislation. They do that principally through the proactive release of information.
The National Records of Scotland made the point that, because there is more proactive release and public authorities are not waiting on FOI requests but releasing information systematically, that reduces the element of burden from the legislation. To point to more evidence from the consultation, the Commission for Ethical Standards in Public Life in Scotland made the point that the cost and resource implications for it would be “insignificant”.
To follow up on John Wilson’s questions on legal advice, is it the case that a majority of those who were consulted advised that legal advice should remain under the 30-year rule rather than coming under the 15-year rule, as you mentioned earlier?
We did not necessarily assess the responses quantitatively; it was more of a qualitative exercise. There is a judgment to be made about whether exemptions are applied, and public interest tests will normally have to be met. Just because there is an exemption for legal advice in the FOI legislation, that does not automatically lead to a conclusion that the exemption will be applied. There are many exemptions in the legislation that exist in perpetuity and do not have a historical time period attached to them at all, but in most cases the public interest test must still be applied, and public authorities will make that judgment in response to FOI requests.
Thank you very much, cabinet secretary.
Agenda item 4 is formal consideration of the motion to recommend approval of the Freedom of Information (Scotland) Act 2002 (Historical Periods) Order 2013, on which we have just taken oral evidence. No members wish to speak in the debate, so I ask the Deputy First Minister to formally move motion S4M-08523.
Motion moved,
That the Local Government and Regeneration Committee recommends that the Freedom of Information (Scotland) Act 2002 (Historical Periods) Order 2013 [draft] be approved.—[Nicola Sturgeon.]
Motion agreed to.
09:43
Meeting suspended.
09:46
On resuming—