Subordinate Legislation
Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004 (Draft)<br />Freedom of Information (Fees for Disclosure under Section 13) (Scotland) Regulations 2004 (SSI 2004/376)
For item 3, I welcome Tavish Scott to talk to us about subordinate legislation on freedom of information. I refer members to several notes that have been prepared for them on the draft Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004. I call the minister to speak to and move motion S2M-1749.
I thank the committee for all the work that it has done on the freedom of information regime in general, prior to considering the two sets of regulations that are before us today. We found the committee's consideration of the proposals and legislation entirely constructive, and it has served as an important check for us in the work that we have been doing.
I am grateful for this morning's opportunity to clarify for the committee the purpose and contents of the draft Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004. It is not the first time that members have deliberated over the draft regulations. You will recall that the committee offered comments on the draft regulations and the accompanying guidance document in response to the recent public consultation that was undertaken by the Scottish Executive. The committee will have seen the Executive note accompanying the draft regulations. There is little point in my labouring over a further detailed explanation. In summary, the draft regulations set out the cost that public authorities can take into account when calculating the level of fee that may be charged for providing information.
During the passage of the Freedom of Information (Scotland) Bill, the Executive made it clear that the costs incurred by public authorities in meeting their obligations under the eventual act would not be fully recoverable. By the same token, however, authorities should not be diverted unreasonably from carrying out their day-to-day business. In essence, the charging framework that has been set out in the draft regulations before the committee aims to address the necessary balance between those two things and to present a clear, consistent basis for charging across public authorities.
As members know, charging for providing information is discretionary. If an authority chooses to charge, it should use the framework that is set out in the draft regulations, according to which the first £100 of costs are to be provided free. Thereafter, 10 per cent of the projected costs, up to a threshold of £600, may be charged. An authority is not obliged to provide the information if the cost of doing so exceeds that threshold. The amount that is chargeable for staff time is restricted to £15 per hour per member of staff, which is to encourage a consistent level of charging among authorities. The regulations set out what can and cannot be charged for. They deal with the production of a fees notice and the aggregation of costs in cases where an authority receives two or more requests from different persons covering the same subject area.
I should also mention the complementary set of regulations that were made on 2 September and which were laid at the same time as those before the committee today. The Freedom of Information (Fees for Disclosure under Section 13) (Scotland) Regulations 2004 cover the fees structure that is to be used by authorities when the cost of providing the information exceeds the £600 threshold—when the authority is not obliged to provide the information but chooses to do so in any case. When that applies, the authority is restricted to charging at the concessionary rate, which is 10 per cent of the projected costs after the first £100, up to £600. The authority may recoup all the projected costs above £600, bearing in mind the fact that the staff rate remains subject to a maximum of £15 per hour.
Subject to any questions that members may have, I ask the committee to recommend that the draft regulations be approved. I have with me John McNairney, from my freedom of information staff, with whom members will be familiar, and John St Clair, who is one of our lawyers. I hope that we will be able to deal with any questions that members might have.
I move,
That the Justice 1 Committee recommends that the draft Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004 be approved.
Members will note that the minister has been speaking to the draft regulations before us, which are subject to the affirmative procedure. We also have in front of us the Freedom of Information (Fees for Disclosure under Section 13) (Scotland) Regulations 2004, which we are not considering under the affirmative procedure. Although he is not here for this purpose, the minister has agreed to try to answer any questions that members might have on that set of regulations, too.
This is a debate for the committee to discuss the issues contained in the draft regulations, but normal practice would be for the minister to try to answer any specific points that members may have. Unfortunately, we cannot invite the officials accompanying the minister to speak, but we can give the minister time to confer with them before responding, if he needs to. I invite contributions to the debate or questions.
I will begin by drawing to the minister's attention the Subordinate Legislation Committee's report on the draft regulations. That committee drew our attention to the question whether the regulations are intra vires. The report says that although the
"purpose of the Regulations was to make provision regarding the calculation of the fee",
they were not specific about the content of the fees notice and the Executive has taken quite a liberal approach to the interpretation of the enabling act. The Subordinate Legislation Committee is quite concerned about that. Will you comment on that point?
I am happy to deal with that point. Your interpretation is entirely fair; it is a matter of—dare I say it—legal interpretation. I suspect that the Subordinate Legislation Committee was tight in relation to its consideration of the proposed regulations.
The Executive accepts that section 9(4) of the Freedom of Information (Scotland) Act 2002 is the primary enabling power, but our considered judgment is that when that section is read with section 9(5), which elaborates the power, it is meant to be quite wide in its scope and would cover how a fee is to be stated in the fees notice. I accept that we could get into lots of different sections, but we are arguing that wider interpretation is appropriate. To support that, I refer the committee to the reference in section 9(4) to the
"fee charged under subsection (1)",
which links the section 9(4) power to the notice under section 9(1).
The Executive considers that this approach to the construction of the regulations is reasonable because having the calculation of the fee properly set out in the fees notice is more or less essential to enable the applicant to decide on an informed basis whether to proceed with his application, which is a primary purpose of section 9. If we reflect on where we were in earlier discussions on the issue, I think that I would be right in saying that the objective was shared by the committee, by the Government and by those seeking to influence the process. A person making an application should be very clear about what that application will cost so that he or she can judge whether they want to proceed. That is the purpose of the regulation as it is proposed. The individual citizen of Scotland will be able to make the judgment and understand, on the basis of the advice that a public authority gives on charges, whether he or she wishes to proceed. That is the kernel of the argument.
I just want to be clear about why the Executive wants to interpret the act in that way. I understand that you are asking us to look at section 9(4) and section 9(5) to see that interpretation. The importance of drawing the conclusion that the Executive does would be that the person making an application under the act would want to see how the fees were arrived at. Is that why it is important to state what the fees notice means?
You are correct. If the draft regulations are approved by Parliament, the breakdown will be available to the citizen who is making the application. That is as it should be and is very much in the spirit in which the bill was passed at the outset.
With hindsight and given the Subordinate Legislation Committee's comments, I just wondered whether in drafting the bill the Executive could have been clearer about what it wanted to say. I accept that the provision in question is desirable and that it is what the Parliament wanted, but if we were doing this again, perhaps we would say in the bill that regulations should specify the fee to be charged and how it was arrived it, and then it would be clear.
I would probably accept the point that you are making. From my experience of the legislative process, there is not much doubt in my mind that all that the Parliament considers, deliberates on, scrutinises and passes could, with hindsight, be subject to a number of tweaks and clarifications. I do not dissent from your central point. I guess that we are where we are.
That is a helpful comment. In considering whether to give our approval, I would be happy to accept the Executive's interpretation as long as it accepted that the drafting could be a wee bit clearer. I accept the principal point that you make.
The Subordinate Legislation Committee said that it agreed that
"the powers to prescribe a fees notice are very wide and are not limited by the detail in subsection (5). However, as subsection (1) of section 9 clearly indicates, the prescription of the fee and the content of a fees notice are two different things."
Given that comment, do you still think that the regulations are intra vires?
I think Mr Butler would accept that I have explained as best I can—given that I am not a lawyer—that it is the Executive's strong contention that the regulations have been drafted so as to achieve the policy objective, which I think we all share. There are nuts and bolts to that and, as the convener has said, with hindsight we can see that there might have been a more precise definition. I contend that because of the policy objective and route that we have chosen to give effect to it, the manner in which we have gone about it is not ultra vires and is compliant with all that you would expect us to be compliant with.
So you are absolutely content that it is intra vires.
I am content that that is the case.
I turn to the Freedom of Information (Fees for Disclosure under Section 13) (Scotland) Regulations 2004, which I am more concerned about, as in the draft Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004, the policy objective was clear. On the Freedom of Information (Fees for Disclosure under Section 13) (Scotland) Regulations 2004, the Subordinate Legislation Committee said:
"The Subordinate Legislation Committee considers that the Executive has once again taken a very generous approach to the interpretation of the enabling powers in this Bill that the Committee finds difficult to concede."
The point that the Subordinate Legislation Committee makes relates to regulation 4, which is that there is no indication that where there is a fee for disclosure the authority needs to seek the agreement of the person applying. The Subordinate Legislation Committee seems to think that the Executive's interpretation of the regulations is that some kind of negotiation goes on between the authority and the person applying. I can see why you want that to be the case, because the purpose of the Freedom of Information (Scotland) Act 2002 is not to make applications cost prohibitive. A person making an application should know that they have to pay for it and see how much they have to pay and how that fee was arrived at. The way that regulation 4 is worded seems to suggest an extremely liberal interpretation of the primary legislation, which the Subordinate Legislation Committee argues was not discussed during the passage of the Freedom of Information (Scotland) Bill.
Forgive me, convener, but the bill was passed during the time of a previous Administration. John McNairney is telling me that you are quite right that there was not a lot of discussion about that particular point, so your interpretation is entirely fair. You are absolutely right about what we are trying to achieve by the regulations. The policy objective is to ensure that an applicant has the opportunity not to proceed with an application if they decide that they do not want to pay or cannot afford the charge. The policy objective is clear; we have to consider how we give legal effect to it. We have proceeded in the way that we think best does that.
It might be helpful to the committee to hear, through you, your officials' interpretation of regulation 4, on the fee payable, which states:
"Where an authority proposes to communicate information to which section 13(1) of the Act (fees for disclosure in certain circumstances) applies, the fee which it may charge shall be such a fee as it shall notify to and agree with the person who requests the information".
It is the phrase
"shall be such fee as it shall notify to and agree with the person"
that concerns the Subordinate Legislation Committee. Primary legislation does not say that any agreement is required. How do you interpret the phrase? Will there be negotiation between the applicant and the authority that is providing the information?
The agreement is as to whether the applicant—I keep using the word "citizen"—wishes to proceed with the application to the public authority. The negotiation is to ensure that the individual is clear about the charging regime and has the opportunity to decide whether to go ahead with the application. If the individual decides that the cost is too high, they might decide not to go ahead. That choice is what we have tried to give legal effect to in the regulations.
Are you saying that there will be a briefing or a consultation rather than a full-blown negotiation?
If you make an application to a public authority in order to gain information, you will have the right to have the charges explained to you—once the authority has worked out what fulfilling the request will be likely to cost. The regulations affect the process whereby you are given the opportunity to decide whether to proceed with your request for information. There has to be an interaction, allowing you to say yes or no, but it is not a negotiation on the fees, which are set out in the framework.
That is what I was driving at. I am content with your answer if you are content with it.
I am sorry that it took me so long to get to the right point.
That is all right.
I, too, am content with your intention, but I still question the wording in regulation 4, which says that the charge
"shall be such fee as it shall notify to and agree with the person who requests the information".
The Subordinate Legislation Committee says that there is no reason to use that wording, and that it can be interpreted liberally. It appears from the wording that the fee has to be notified to the person and agreed with the person. However, you are saying that the person cannot negotiate but can simply agree whether or not to proceed. If that is the policy intention, it would be helpful if it were reflected in the regulations. You might feel that what you have said this morning is enough to ensure that the regulation is interpreted properly, but I would ask the Executive to consider making the point clear in some other way.
I look to John McNairney to advise me on how the system will operate. As committee members will know, the commissioner—independent of Government and appointed by Parliament—will also be concerned with this issue. I have no doubt that the commissioner will ensure that the citizen making the application is properly dealt with. That is what we have sought to ensure in the regulations. I honestly do not believe that there will be any interpretation of how the regulations will operate in practice other than the interpretation that we—and, I hope, the committee—share.
I do not think that there are any further questions; however, I would like that regulation to be made clearer, although I know that that would involve an amending regulation. We might say that in our report to you. For the avoidance of any doubt—[Interruption.]
I am sorry, convener, but I have been trying to grasp all the fine legal points from my legal adviser. If I get this right, I will be amazed.
The second set of regulations is different from the first. In relation to Bill Butler's fair point, there is in effect a contract between the person and the public authority. Although I take the point that you make, the Executive's legal view is that the way in which regulation 4 is drafted gives effect to what we are trying to achieve. We have reflected that in our discussions this morning. In our legal view, it is the right way in which to take matters forward. We are not convinced that changing or amending it would make that process any easier or clearer, as there is a different legal process under the second instrument from that under the first one that we discussed. Our judgment is that it is the best way in which to give effect to the policy position.
Members have no further comments or questions. The question is, that motion S2M-1749, as printed on the agenda, be agreed to.
Motion agreed to.
That the Justice 1 Committee recommends that the draft Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004 be approved.
The committee is required to report to the Parliament on the Freedom of Information (Fees for Disclosure under Section 13) (Scotland) Regulations 2004. The report may reflect only the points that have been made in our discussion. We can circulate the report for comment by e-mail, as it has to be published by Tuesday 5 October in order to meet any deadline. Is the committee happy for us to do that?
Members indicated agreement.
With the committee's indulgence, I would like to pursue the question of clarity in our report and withdraw the proposal that the Executive produce an amendment. I would like us to say that the wording of the regulations could be made a wee bit easier to understand.
We would like clarification of what "agree" means, basically. As long as it is understood that "agree" means "accept" rather than implying negotiation, that is fine.
Okay. [Interruption.] The clerk has reminded me that we have been considering two sets of regulations. We have agreed to a motion on one of them—the one that the minister spoke to—and the other is the negative instrument, on which we will make that comment in our report.
I thank the minister for answering all of our questions so well. We did not need to put you under so much pressure, minister, but we like to do a good job of ensuring that the instruments that come before us are as clear as possible. Our thanks also go to your officials.
Thank you.