Justice 1 Committee,

Meeting date: Wednesday, May 30, 2001

Official Report 235KB pdf

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Draft Freedom of Information Bill

Agenda item 5 is the draft freedom of information bill. We are joined by Jim Wallace, the Minister for Justice, Michael Lugton, head of the Executive constitutional policy and parliamentary liaison division, and Keith Connal, head of the Executive freedom of information unit. I invite the minister to say a few words of introduction.

I thank the committee for its invitation to give evidence on our draft freedom of information bill. The convener welcomed the officials who are with me today, who gave evidence to the committee on 16 May. I shall try to keep my opening remarks brief, so that we can take up the time with questions.

As the committee is aware, on 1 March I published the draft freedom of information bill for consultation and pre-legislative scrutiny. That followed from our earlier consultation on proposals for freedom of information, which were set out in "An Open Scotland". From the earlier media reporting, the debate that was held in the Parliament on 15 March and the consultation responses that have been received so far, it is fair to say that the draft bill has received a reasonably warm response. Of course, there are aspects of the bill about which we have received some critical comment, and we will consider those areas carefully before we prepare the bill for introduction later this year.

I accept that the draft bill is, necessarily, a little complex in places, but it sets out a clear right of access to information that is held by a wide range of Scottish public authorities. It contains a duty to disclose information unless that information is covered by a limited number of exemptions; a requirement, in all bar a few circumstances, to consider the public interest in disclosure; and a rigorous appeal system with a fully independent and powerful Scottish information commissioner, to be appointed by the Parliament, to promote and enforce the legislation.

Complementing those core components, the bill contains provisions on other matters such as charging, when the charges are not already covered by statute or in a publication scheme; the means by which applications for information can be made; response times; publication schemes; and the way in which it is proposed to apply freedom of information to public records.

The draft bill, if it is enacted, will introduce a distinctive, robust and effective statutory freedom of information regime. At the same time, it is practical legislation that recognises the need to have a workable freedom of information regime that does not place unreasonable burdens on Scottish public authorities.

I am sure that the committee has recognised that there is a lot of detail in the 72 sections of the draft bill. I look forward to the bill receiving detailed consideration during its passage through Parliament, but at this pre-legislative stage, I am happy to discuss any general aspects of policy or to try to answer any detailed questions on provisions in the draft bill.

Thank you.

In the original consultation paper, three possible types of charging scheme were suggested. Can you expand on why you opted for the scheme that you have chosen?

Under the scheme that we have chosen, requests for information will be free up to £100. Thereafter, the balance will be met. In other words, if a request cost £200, the authority could charge £100. There would be an upper ceiling of approximately £500. That was the second option in the consultation document and it was chosen because it received the most support from consultees.

We might say that that was genuine consultation. However, it was not just a matter of putting out the proposals and doing a head count. We believe that our proposal strikes the right balance between encouraging access to information and ensuring that public authorities do not have to use up resources—often valuable resources—and divert them away from their principal business.

You may recall that, when we debated the issue in March, I indicated that we would review our charging proposals in the light of any further responses to this phase of the consultation.

I suspect that there would be a problem with any charging scheme, in that the less efficient a body is at storing its information, the more expensive it will be to retrieve that information. As a result, authorities that are better at storing information will be able to provide the same information much more cheaply than will those that are poor at storing information.

If the position were that simple, that would be a fair point. However, as part and parcel of a general move to improve record keeping, there would be a code of practice on records management. Our expectation, therefore, is that all public authorities would improve the way in which they hold their records and that considerable divergence should not arise in efficiency of record keeping between public authorities.

I have established a working party, which has representation from all Scottish Executive departments and from public authorities beyond the part of the Executive that is under immediate ministerial responsibility. We are addressing the issues of how different departments and public authorities should prepare themselves for freedom of information. It is, therefore, more than our expectation that public authorities would keep records in a way that would ensure that the kind of divergence that I mentioned did not take place.

In addition, once the freedom of information regime has been established and the Scottish information commissioner is in place, the commissioner would have an important role, not just in determining individual cases, but in overall policing of the scheme. An important part of that role would be ensuring that public authorities keep their records efficiently.

Excuse me if the information is contained in the consultation document, but I presume that, if the search was going to cost £300, for example, the authority would advise the client before proceeding and give them the option to withdraw at that stage. It would not be a case of someone asking for information and then getting a bill for £399, or whatever it cost.

That is right. Anyone who requested information would be told how much it was going to cost.

What would happen in exceptional cases, for example with people who require information in some medium other than the printed word? I am thinking particularly of people who have various kinds of sensory impairments.

My officials have been engaged in some discussions on that matter. An obvious example would be Braille. Obviously, we are alert to the issue and have tried to address it. There may well be existing statutory obligations that public authorities would be obliged to follow, but the legislation is not intended to impose further statutory requirements. It would be understood that applicants could express a preference for information to be provided in a specific format and we would expect the public authority to try to do that, if it were reasonably practicable.

As I indicated, we have met some of the equality bodies—the Equal Opportunities Commission, the Disability Rights Commission and the Commission for Racial Equality—to discuss the issues. We will certainly consider with those bodies—we will also consider any of the committee's recommendations—how we can best deal with such a fair and important point.

Currently, people seek information from local authorities and that information is obtainable. Under the charging scheme, will people pay twice in some cases? They will pay their local rates and will have to pay additional charges for statements on what has been done.

To put that question into context, the overwhelming majority of requests would cost under £100 and would therefore be free. If a request costs more than £100, it involves a considerable amount of work. A balance must be struck to achieve value for money for the taxpayer. If the request would involve a considerable amount of time and effort on the part of the local authority—on photocopying, for example—some charging would not be unreasonable. Of course, charging will be discretionary. It will always be open to the local authority to waive a fee in a particular circumstance.

Furthermore, publication schemes will be part of the overall scheme. Again, those schemes will be overseen by the information commissioner. We will encourage public authorities—including local authorities—to come forward with the information that they were going to put in the public domain anyway. Some information may be made available free of charge—for example, the information that accompanies every demand for council tax. We want to improve the quality of information, and we will look to public authorities, including local authorities, to make other publications available.

There will be no competition when it comes to the cost of providing the information—there will be only one source. Will detailed statements be given on the costs that are incurred, particularly if they are substantial?

It would not be satisfactory to spend a lot of time on producing a detailed scale of charges. That could be costly. The important backstop is that, if the applicant is not satisfied, he or she can apply to the information commissioner who will have full powers to review the case. The commissioner would take a pretty dim view of authorities that were trying to manufacture costs, as it were, to frustrate the provision of information, although there is no reason to say that they would do so. Once the information commissioner is in place and a number of cases have passed through his or her hands, the public authorities will no doubt get the message about what charging is reasonable and what the commissioner will not allow. If an applicant believes that there has been an incorrect or unfair calculation, a right of appeal will exist.

What about MSPs and MPs? We seek a lot of information from public bodies and others. Will that information be provided to us without our incurring costs?

In making applications, MSPs and MPs will be in the same position as anyone else. Of course, it will still be open to MPs and MSPs to ask parliamentary questions. MSPs can have access to Scottish public authorities' information through that route. We still have section 23 of the Scotland Act 1998 as the ultimate nuclear sanction, if you want to call it that.

That might be the case, but MPs and MSPs can have good relationships with public bodies and they get information from them. I recognise that, at times, we impose burdens on public bodies, but we do so in the interests of constituents. Generally, the information that comes back is helpful to those constituents. Asking parliamentary questions is one thing, but you say that MPs and MSPs will, in effect, be charged in the same way as everyone else, and that seems to be a step back for the interests of constituents.

There is no intention that that should happen. The cost would fall under £100 in the overwhelming number of cases. I repeat that public authorities have the discretion not to charge. Phil Gallie would probably find that a dim view would be taken and that questions would be asked in Parliament if it were thought that public authorities were trying to use the scheme to frustrate MSPs in the legitimate discharge of their functions.

When I was in New Zealand, I discussed the provision in that country with the Minister of Justice there. He said that Opposition MPs were pretty adept at using the freedom of information provisions. I look forward to this with some interest.

What worries me is when I am not in opposition.

We are considering only the immediate future, Phil.

The request for information has to be made in writing or by e-mail, or some such form of electronic communication. I presume that that does not preclude somebody from turning up in person and completing a simple form at the reception area.

That is correct.

More important, will not it be possible for people to make a request by telephone? People can get a personal loan or their car insurance by telephone; such calls are recorded.

The draft bill does not exclude the possibility of telephone applications, but we took the view that for the system to work most effectively, it would be far better for applications to be made in writing. Telephone applications are not excluded, but we must take into account issues such as dates and the time to respond. It would be better to have an application form.

We have tried to make the application process as simple as possible. All that the applicant has to do is to make an application in writing. We hope, and the expectation is, that officials would want to be as helpful as possible. If somebody phoned up, I cannot see there being anything wrong with a way being devised of putting the application in written form so that several important steps in the process can be followed through.

Section 15 of the draft bill includes a duty to assist, which I hope would resolve such issues.

Does the application have to be made in English?

Prima facie, yes, but we have been examining that requirement with the CRE. We could consider a translation being done if a request was made in a language other than English. That is a reasonable point.

I am thinking about the European convention on human rights, which provides that there should be no discrimination in the right of access to information.

I would not want people who were not very familiar with English, or who may even have no written English skills, to be frustrated in a legitimate attempt to get information.

Information is defined in the draft bill as "recorded"; it is not defined as information held. What about information that is held, but unrecorded?

The bill gives rights of access to unrecorded information. I draw your attention to section 1(1), which says:

"A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority."

The words "which holds it" are relevant in this context. The commissioner would be able to make inquiries about any recollections of unrecorded information. It is difficult to think of all the ways in which the information might be held. It might be on video, for example.

I will press you on what you understand by "information held". My understanding of that would be information that was recorded, as in the famous phrase "held on file".

The worry at the back of people's minds is that, in trying to produce a culture of openness—of which, as you know, I am a great supporter—we might produce a culture of people not writing anything down because they might have to tell people what they wrote. At the moment, if people produce a minute of a meeting, it will not necessarily end up in the public domain.

The word "held" suggests that there is a corpus of information somewhere. It would be difficult to say that information that was retained in someone's brain was held by a department. The definition section of the bill says that information

"means information recorded in any form".

That is a pretty wide definition; it would be difficult to make it wider than that.

The experience of other countries that operate freedom of information regimes is that there has not been a great rush to stop putting things in writing. That is not to say that that will not happen, but the nature of the system is such that not writing things down would create more problems than it would avoid. I know that it is sometimes said that the Post-it culture could take over. However, when I was in Ireland, there was a suggestion that the freedom of information regime might cause recording to improve.

As I indicated earlier, if someone appeals to the commissioner and an inquiry is undertaken, the commissioner can seek unrecorded information by interviewing officials to find out what their recollections are.

I accept that we could not have freedom of information without having some exemptions, but a number of forms of exemption are proposed in the draft bill. Some people wonder why class exemptions—a presumption against disclosure of certain classes of information—have been included. Why would not the substantial harm test be good enough for every circumstance? Why must certain pieces of information be put in classes of their own?

That has been one of the theological debates, if you like, whenever freedom of information proposals have been introduced. We took the view that a class exemption would apply to situations in which there was a presumption that there would be substantial harm in disclosure. It is important to make clear what sort of information would usually be available. The class exemptions lend themselves to that kind of categorisation. It would be regrettable if we were to produce an expectation that was not met in reality. It is important to emphasise that the public interest test will continue to apply in nearly all cases. There is provision for an appeal to the commissioner if the applicant is dissatisfied.

The public interest test does not apply to everything, does it?

There is not much to which it does not apply. You will find the details on page 33 of the draft bill. Some of the class exemptions are technical. There may be a statutory prohibition on releasing information, or information may be about to be released in the ordinary course of events. There are very few absolute exemptions. Another technical exemption is that applying to information that is otherwise accessible. There may also be a prohibition on disclosure in another statute.

Another exemption relates to personal data, which would come more appropriately within the ambit of the Data Protection Act 1984. We added an exemption that was not in the original consultation document, relating to personal census information. It was important, during the recent advertising of the census, to reassure people that their confidentiality was guaranteed for 100 years. There is also an exemption for health records. All the exemptions in the bill are self-evidently sensible.

Friends of the Earth, in its draft submission on the draft bill, asserts:

"The current proposals entail a twin-track system where environmental information continues to be governed by the Environmental Information Regulations"—

which are based on European law.

The organisation suggests that environmental information would not come within the ambit of the bill. Will you comment on that claim? I would have thought that all environmental information would be accessible through public bodies.

Our aim was to help make available environmental information. There is a European Union primary directive on access to environmental information. In June 1998, the UK also signed the Aarhus convention, a United Nations Economic Commission for Europe measure, which deals with access to information, public participation in decision making and access to justice in environmental matters. The UK has signed that convention and the Scottish Executive is committed to ratifying it. We took the view that it was sensible to use the freedom of information bill to bring into operation the convention's provisions.

Environmental information regulations will be made under the regulation power that is provided by the bill. The Aarhus convention goes further than the current environmental information regulations and we need to make provision for that. The information commissioner will act as an independent supervisory authority in relation to environmental information regulations. To some extent, that represents a twin-track approach, but our intention in pursuing it is to find a legislative vehicle for the introduction of measures that will increase the scope for provision of environmental information.

The other point that is made in the Friends of the Earth submission is that the draft freedom of information bill should incorporate article 5 of the Aarhus convention. Apparently however, it mentions only articles 3, 4 and 9. I have not done my homework, but I gained that knowledge from the submission.

The Freedom of Information Act 2000 does not implement article 5, but that does not bar us from doing so. We are examining the matter. It is fair to say that we have received a substantial number of representations in response to our consultation, and we will scrutinise them.

On requests for information, let us imagine that an inquirer placed a request with the wrong public authority. If the inquirer went to a United Kingdom body for information on devolved matters, would the provisions in the bill be sufficient to ensure that they received guidance on the relevant authority to contact?

We are proposing to put in place a general duty that would require officials to assist inquirers. If an inquirer went to the Scottish Environment Protection Agency when it would have been more appropriate to contact Scottish Natural Heritage, it would fall within the general duty to assist. Rather than saying, "Sorry, mate. There's nothing here," the duty would be to say that the request should be dealt with by Scottish Natural Heritage. It would not be appropriate to specify such a duty in detail under the bill, but it is important to note that officials will be under a general duty to assist.

By putting such general duties in the bill, I hope that we will foster a culture of openness. Perhaps you ask that question from the perspective of someone used to a culture of secrecy and protectiveness. Such has been the official culture for decades, if not centuries, but we are making an effort to move away from that practice. It might take some time, but I hope that, with the code of practice as well as a general duty in the bill, such problems will not arise.

The draft bill places a duty on public authorities to provide reasonable advice and assistance to freedom of information inquirers. What does "reasonable" mean?

I have given one example. The duty is set out under section 15. It links to section 59, which deals with the code of practice. We are obliged to bring the code of practice before Parliament, which will deal with a number of specific points. It is always difficult to pin down an absolute definition of what is or is not reasonable. The obligation on Scottish public authorities to give assistance is fleshed out in the bill. Section 59(2) sets out the matters that the code of practice must relate to, such as

"provision of advice and assistance",

the transfer of requests from one authority to another, and

"consultation with persons to whom information requested relates or with persons whose interests are likely to be affected by the disclosure … inclusion in contracts entered into by the authorities of terms relating to the disclosure of information … the provision by the authorities of procedures for dealing with complaints about the handling by the authorities of requests for information."

Parliament will have the opportunity to consider the code of practice. I hope that the general question about reasonableness will be addressed by some of the detailed provisions in the code.

Section 35 deals with confidentiality. What is the section intended to achieve?

At the moment, common-law rules that have been developed by the courts over many years exist to cover confidentiality of communications. We do not intend to disturb those common-law rules. Equally, we do not intend that those common-law rules should protect authorities against disclosure of information simply on the ground that the information is embarrassing. Where contracts that have confidentiality clauses have been entered into, those should be recognised except in extreme circumstances. At the moment, in limited circumstances, the courts will breach confidentiality clauses. However, our intention is to protect the current position.

In other cases that are not covered by a contract, including between patients and doctors and clients and solicitors, the nexus that is formed by the nature of the relationship means that there is an obligation of confidentiality between the parties. We intend to preserve that with the code of practice.

I referred previously to the code of conduct having specific regard to

"the inclusion in contracts entered into by the authorities of terms relating to the disclosure of information."

When public authorities enter into contracts, we want to ensure that confidentiality clauses are inserted only in cases of strict necessity.

I have a supplementary question about section 35(2), which gives public authorities absolute exemption if disclosure of information received from another person or authority

"would constitute a breach of confidence actionable by that person or any other person."

Will the minister expand on what breaches of confidence are actionable?

We have attempted, in section 35, to replicate the law in relation to confidentiality. If I was about to go into print to publicise something about which the convener and I had a contractual arrangement, the convener could go to court and get an interdict against my publishing the information that was confidential. There might also be cases in which, if the information was published, because of a breach of contract, an action for damages would result.

The point that I am trying to make, minister, is that I do not know what I could tell you in confidence and then sue you for disclosing.

You would know that because if you and I had entered into a contract, that information would be a term of the contract. Breach of contract is one category. The other category is where breach of confidence would apply. An example of that would be where the duty of confidence arises by implication. If the convener were a doctor, he would know that that applied to information that he received from me if I were a patient. In many respects, that example does not relate to freedom of information. As I said, we are attempting to replicate the law in relation to confidentiality as it exists. At the moment, we manage to go about our daily lives without worrying whether someone is about to sue us for breach of confidence.

The context of freedom of information would arise for the person who was considering disclosure. If a request for information was made, the person who was considering disclosure would need to consider whether disclosure of information could be actionable. If the convener was defined as representing a public authority under the terms of the bill, and he had been invited to release information, he would be well advised to ensure that he took proper advice, if there were question marks about the information.

It strikes me that some of the examples that the minister comes up with are covered elsewhere. One example is the doctor-patient relationship. If the doctor is employed by the health board, I presume that that relationship is covered by the law that relates to health records. The most likely example to be covered by section 35 would be contracts that have been entered into by a council. Those are often matters in which the public is likely to want information and in which a contractor has deliberately written in confidentiality clauses.

We recognise that there could be an attempt to subvert or get round the legislation. It is not intended that section 35 should protect authorities from disclosing information simply on the grounds that it might be embarrassing, uncomfortable or awkward to have that information in the public domain.

We will make it clear in the guidance to public authorities that a duty of confidentiality should be included in contracts only if that is strictly necessary. The United Kingdom Government has already issued such guidance. Let me ask my officials whether I am right to say that such matters could also go to the commissioner.—[Interruption.] No—a matter of absolute confidentiality probably could not go to the commissioner, but our guidance will make it clear that such matters must be kept to a minimum. The purpose of section 35 is not to suggest, to the courts for example, that the current common-law rules on confidentiality should be altered.

Some of us might have concerns about that, because even now we often come up against a barrier, with ministers and officials telling us that certain information is commercially confidential, and that it cannot therefore be given to us.

That issue features not only in our proposals, but in all freedom of information regimes, and must be addressed. We will take into account the representations that we receive, but I am trying to explain the policy that we pursued when we inserted section 35 into the draft bill. We want to preserve the existing position, but there is an important qualification to that point; we do not intend that section 35 should be used as a protective shield by public authorities that wish to avoid embarrassment. The clear guidance that will be issued will state that confidentiality clauses should be used only in cases of strict necessity.

On the issue of requests for further information, how detailed will the authorities' publication schemes be in order for them to meet the requirements and intended purpose of the legislation?

That is why we are going to have an information commissioner—the commissioner's duties will include giving advice and promoting good practice. I hope that the publication schemes will be extensive and full. I want an instinctive reaction to develop, through which authorities will put information into the public domain. That will not happen overnight, but I hope that it will happen over a short, rather than long, period. In such circumstances, it would not be necessary for people to apply for information because, by and large, that information will already be public.

We will examine the codes of practice and what is happening at present. I am advised that this summer, the UK information commissioner will consult on publication schemes. We will not try to reinvent the wheel—if good ideas come from that consultation exercise, we will borrow them. It is not necessary to legislate before encouraging good practice in relation to making information public.

That leads on to my questions, which are on the development of a culture of openness in which information is made freely available.

Would there be a benefit in including a purpose clause in the bill?

I want to make it clear that we have left that question open and that we will consider it further. I discussed that issue when I was in New Zealand and the New Zealand information commissioner—or the Office of the Ombudsman, which deals with freedom of information—felt that it had considerable merit, as it gave a kind of timelessness to the legislation. However, there is a difference of construction between the New Zealand legislation and our legislation, which is also a relevant factor.

Section 1(1) of the draft bill establishes the following right:

"A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority."

It is arguable that that is the most concise purpose clause that is possible. However, we will have regard to representations that we receive during the consultation on the merits of including a purpose clause in the bill. I have left the door open for further consideration of that.

What difficulties do you perceive in seeking to achieve that cultural change? Do you have concerns about the extent to which that aim can be achieved under the proposed regime?

I suppose that tradition is one possible difficulty, although it is fair to say that things are changing. I do not accept that it is impossible to change the culture, although the present culture has been built up over many generations. Changing it will therefore take time. Training will be important, as will awareness and leading from the front. That is why, as I said, we have established a working group at official level that is examining the various implications—[Interruption.] I am told that the working group's next meeting will be on Friday and that the group's papers are on the website. That is an example of freedom of information.

I visited the Republic of Ireland and met the minister responsible for freedom of information, Martin Cullen, and the Irish information commissioner. What impressed me most was the extent to which training was given before the statute was phased in. We may wish to consider phasing in our legislation if, by doing so, we can ensure that public authorities are properly geared up and that their staff are properly trained. I set a lot of store by training.

What mechanisms do you envisage need to be in place? You mentioned training, which is probably such a mechanism, and phasing in the legislation.

A sub-group of the working group has been, or is about to be, established with a specific remit for training.

Do you envisage any other mechanisms that might be needed? Who will be responsible for ensuring that those mechanisms are put in place? Will the commissioner have a role in that part of the process?

The working group will consider a range of issues, including ensuring that record keeping is in good shape, which was mentioned earlier. Record keeping and training are both important.

A number of issues will emerge as we try properly to gear up public authorities. Ultimately, all ministers must share responsibility for trying to ensure that a culture of openness pervades. While I am responsible for the legislation, I sometimes find that freedom of information issues end up on my desk when they arise. However, we want to achieve a culture in which a freedom of information issue that is related to health will end up on Susan Deacon's desk, or on Jack McConnell's desk if the matter is related to education. We must all take responsibility for promoting that culture.

The Scottish information commissioner will have a key role to play, not just in determining appeals or overseeing publication schemes, but in promoting a culture of openness.

You mentioned Ireland and New Zealand. Will you expand on the lessons that can be learned from international experience of introducing freedom of information regimes?

I mentioned Ireland and New Zealand because I visited them. However, when we drafted our original proposals, we considered other examples, such as the Canadian and Australian regimes. We have borrowed, or adapted, the ministerial override from New Zealand.

We believe that we have produced proposals that are appropriate to and suitable for Scotland. We have not used any other country's system lock, stock and barrel; we have tried to identify and adapt good practice where such practice is relevant. I believe that our proposed system meets Scottish needs. For example, I mentioned that the working group will meet on Friday this week. The head of the Irish freedom of information unit will attend that meeting and will share experience.

That is good to hear.

I will continue on the minister's international experiences. What do people in other countries do about information that comes from their equivalents of our Crown Office and Procurator Fiscal Service? The proposed bill appears to lack provisions on what we will do with information from our Crown Office and Procurator Fiscal Service. That causes concern among many people.

Most freedom of information regimes must tackle information that is gathered during criminal investigations. In any regime that we devise, we do not want a system that might deter witnesses from coming forward and giving information. The Crown Office will be covered by our freedom of information regime. The committee might wish to ask the law officers to give information on that, because it is their responsibility.

An important element of that is that the Scotland Act 1998 guarantees the Lord Advocate's independence. We have had to acknowledge that in drafting the freedom of information provisions. It is important to state that the Crown Office will have a statutory duty to comply with the provisions, which include positive obligations to publish some information. It will also be incumbent on the law officers to publish information within set periods. However, the important difference is that in some categories of information that relate to the Lord Advocate's responsibilities on prosecution, an appeal to the commissioner will not be available. That is because it is felt—self-evidently—that that could compromise the Lord Advocate's statutory independence, in which it is beyond the Parliament's competence through the Scotland Act 1998 to interfere.

I suspect that we will return to that issue.

Yes. The issue is important. I have no doubt that the law officers will be only too willing to assist the committee on it.

Has the Executive assessed the cost implications of the freedom of information proposals?

We have certainly tried and we continue to examine the implications. We have considered some overseas experiences, but as I said to Nora Radcliffe, we have not adopted one system lock, stock and barrel over another, so it is difficult to make direct comparisons. When we published "An Open Scotland", the original consultation document, we took a view that the cost would be roughly 10 per cent of the £6.5 million that the UK Government had set aside for its information commissioner. We have not significantly revised that estimate. The Irish commissioner has a budget of about £300,000 a year, but commentators have suggested that some overload is being felt there. The proposed 10 per cent of £6.5 million is more than double the amount that the Irish commissioner has. We have factored in the fact that we will have a freedom of information commissioner to future budgeting and to the spending review.

The implications will depend to some extent on what we do about costs. No accurate amount has been identified, but I hope that I have given the committee some of the estimates. Of course, establishment costs will also be incurred. Page 10 of the consultation document with the draft bill states:

"we estimate that between 7,500 and 10,000 requests might be received … If the average cost of dealing with these … was assumed to be between £100 and £300 … the estimated gross cost … would be in the region of £2.5 million to £4.8 million".

That cost would cover everything, including establishing the office, paying for the office and the internal reviews. However, as I said, many requests would cost less than £100. We do not yet have a clear estimate of the cost, but we expect it to be up to about £5 million.

I am sure that you are fully aware that we are examining the Scottish budget. I went through the document and saw no reference to the additional burdens of freedom of information. Should you take that up with Angus MacKay, the Minister for Finance and Local Government?

From memory—I will write to the committee if I am wrong—I think that a miscellaneous provision deals with that. I am not sure whether my official, Mr Lugton, can help me with the question. The Scottish Executive has made no additional provision for other public authorities, but the money for the commissioner has been included in the budget document. I will clarify that in writing.

Thank you. However, the fact is that the cost of the commissioner is probably relatively low compared to the burdens on local authorities and the block grants. The amount for the commissioner could be relatively low even compared to the burden on bodies in the national health service and other such facilities. You might want to revisit those cost implications, because the costs extend across the range of public services.

We are not having a standing start. Phil Gallie must bear it in mind that many public authorities already fulfil requests for information. The great imponderable—which is why it is impossible to answer the question—is the extent to which we will drive demand by adopting legislation. The more people make requests, the greater the cost will be.

I emphasise that, as I have said during the morning, I hope that we will reach a stage at which people will not find it so necessary to make requests, because the information that they want will be in the public domain. Therefore, much importance will be attached to the publication schemes that are prepared and the information commissioner's oversight of them. The guidance that the commissioner can give and the codes of practice will lead to more information being released proactively into the public domain. That will have some cost, but it might more than counterbalance the other costs—or be cost effective—if it means that fewer requests are made.

I accept that point. I accept your argument about people asking questions, but answering questions and publishing information could place an additional burden on local authorities in archiving, publication schemes, training staff and special needs. All such requirements could place an additional burden on local authorities. It would be important to try to identify those costs, so that people know where we are and so that our Scottish budget can be constructed properly.

I hear what Phil Gallie is saying and I understand full well the point that he makes. We have not made extra funds available, because we recognise that public authorities already handle requests for information. Information is routinely published. No additional funds were made available to public bodies in Ireland to implement freedom of information there. As I understand it, no additional funds have been made available in the United Kingdom for the regime that the Freedom of Information Act 2000 introduced.

By and large, procedures are in place for handling many requests for information. Any increase is likely to be minimal. We will have to monitor that issue, but given other experiences and the present situation, we are not beginning from a standing start. Requests for information are already met, so we have not budgeted for additional funds to be made available to public authorities.

Section 51 of the draft bill would give ministers the ability to override a decision of the information commissioner. If I am correct that means that, if an authority refused to give information, which the information commissioner then said should be given out, a minister could override the commissioner's decision. What is the thinking behind that?

If the information commissioner said that the public interest favours disclosure, there would be only a limited number of categories in which ministers could override that and take the view that the public interest in non-disclosure outweighs the interest of disclosure.

I cannot conjure up an example of when the ministerial override would be used because in New Zealand, whence we borrowed the provision—as I said in my answer to Nora Radcliffe—the ministerial override has never been used since 1987. In the five years of New Zealand's freedom of information law prior to 1987, individual ministers could override the information commissioner's decision. I shall not say that that happened frequently, but it was thought to be happening too frequently for the regime to work comfortably. That is why New Zealand moved to collective decision-making on whether the commissioner's decision could be overridden. Since then, the override has never been used. Indeed, the New Zealand Minister of Justice told me that it is almost a matter of pride among ministers that they get freedom of information cases off their desks and try their best to answer them.

Other freedom of information regimes, including that of the United Kingdom, have a ministerial veto. What is special about our proposed veto is that it would be limited in extent and it would have to be exercised collectively. Other than that, the commissioner would have the power to require disclosure. A certificate would need to be laid before Parliament that gave the reasons for the decision to override the commissioner. That would be a major political event, so the power would not be used lightly; it would be used only when the collective view of ministers was that the commissioner's decision on what was in the public interest was not the right one.

You cite the fact that there is a similar provision elsewhere, but it hardly surprises us that ministers elsewhere have sought to keep powers that allow them to prevent information getting into the public domain. That is the whole reason for having a freedom of information bill. It seems a bit bizarre that the only argument in favour of the power is that ministers will not use it.

I did not say that we would never use the power; I said that it exists as a backstop. Other freedom of information regimes that are held up as models of great openness, such as those in Ireland and New Zealand, have such a backstop power. The potential for the application of the power is very limited indeed because the decision would need to be made collectively by ministers and would have to be notified to Parliament. Section 51(3) of the draft bill requires that the reasons for which the opinion was formed would have to be given.

Given that in almost every freedom of information regime some residual power is reserved to ministers, our proposed regime would be one of the most limited as regards the ministerial power to override the information commissioner's decisions. Freedom of information would be buttressed in so many ways that the scales would be unequivocally tipped in favour of openness. Only in the most extreme circumstances would ministers wish to use that power to override.

Many people will find it a bit strange that you will set up an office of the commissioner, who will be the guardian of the public's right to know, but then give ministers the ability to override the commissioner's decisions. If people were asked in an opinion poll whether they would trust the commissioner or ministers more, I suspect that we know what answer we would get.

At the end of the day, ministers are accountable to the Parliament. We would be held to account for the decisions that we made. We should also take that into account.

In Ireland, ministers can exercise their veto before the commissioner ever gets to the point of making a decision. That is more restrictive than our proposal, because in Scotland we will at least have had the benefit of knowing that the commissioner found in favour of disclosure. Ireland is often held up as a model that we ought to follow, but a case in which Irish ministers exercised their veto would never even get to the commissioner.

We are doing things that decisively move us in a direction of far greater openness. The draft bill sets out the very limited circumstances in which that backstop or safeguard could be used if ministers' view on what was in the public interest differed from that of the commissioner. We would need to give reasons for such a decision and we could be readily held to account for it.

We can have one more supplementary question before we finish this item.

The minister mentioned ministerial accountability and how he would wish to retain a veto over freedom of information, yet later today in the stage 3 debate on the Convention Rights (Compliance) (Scotland) Bill, he will be giving away ministerial responsibility on another veto—

Hang on, Phil. That is nothing to do with the draft freedom of information bill.

It is. It is a contrast or difference in Government policy. The minister is advocating one thing in the draft freedom of information bill, but in another bill he is going in a different direction. I suggest that the question is fair.

No.

I will not complain about the fairness of the question. It is a good debating point, but it is to compare apples with pears.