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Chamber and committees

Official Report: search what was said in Parliament

The Official Report is a written record of public meetings of the Parliament and committees.  

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Dates of parliamentary sessions
  1. Session 1: 12 May 1999 to 31 March 2003
  2. Session 2: 7 May 2003 to 2 April 2007
  3. Session 3: 9 May 2007 to 22 March 2011
  4. Session 4: 11 May 2011 to 23 March 2016
  5. Session 5: 12 May 2016 to 4 May 2021
  6. Current session: 13 May 2021 to 15 February 2026
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Displaying 1867 contributions

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Standards, Procedures and Public Appointments Committee [Draft]

Freedom of Information Reform (Scotland) Bill: Stage 1

Meeting date: 27 November 2025

Katy Clark

The time would run from the point at which any reasonable person, and perhaps everybody, would be of the view that it is likely that there might be a freedom of information request because of the nature of the material and of the issue.

Standards, Procedures and Public Appointments Committee [Draft]

Freedom of Information Reform (Scotland) Bill: Stage 1

Meeting date: 27 November 2025

Katy Clark

It might well be that, at the time that information was destroyed, it would not have been reasonable for that person to believe that it would become a massive issue five or 10 years down the road. In those circumstances, there would not be a case to take through the courts. The provision has been envisaged and framed on the basis that the offence would be used in exceptional circumstances.

Existing offences are framed in very similar terms. The provision is mirrored on existing offences that have been in place for many years but would extend to the situation where records were altered at an earlier stage, before an FOI application was made. We know that those other offences have very rarely been used. Although we have worked in our financial memorandum on the basis that they will be used once or twice a year, that is very difficult to conceive in reality.

Standards, Procedures and Public Appointments Committee [Draft]

Freedom of Information Reform (Scotland) Bill: Stage 1

Meeting date: 27 November 2025

Katy Clark

The Information Commissioner dealt with that very well last week. The publication codes would make very clear to a local authority what information they would require to keep or to publish. The threshold is high, and it would have to be an extreme set of facts that led to the Information Commissioner deciding to try to seek a prosecution, and the Crown Office would then obviously would have to take a view. I imagine that it would be an extreme set of circumstances in which it would be felt in the public interest to pursue a prosecution of that nature.

Standards, Procedures and Public Appointments Committee [Draft]

Freedom of Information Reform (Scotland) Bill: Stage 1

Meeting date: 27 November 2025

Katy Clark

Yes.

Standards, Procedures and Public Appointments Committee [Draft]

Freedom of Information Reform (Scotland) Bill: Stage 1

Meeting date: 27 November 2025

Katy Clark

The intention behind my proposal, which has come from those who are directly involved in the process, is to speed up the process and encourage early clarification. Again, I view it as a technical amendment. There seems to be consensus that this is the right approach among those who are heavily involved in freedom of information, such as information commissioners, academics, the Campaign for Freedom of Information in Scotland and those who use freedom of information regularly. The issue was also looked at by the committee in the previous parliamentary session.

Carole Ewart might want to add something because you have raised a technical point.

Standards, Procedures and Public Appointments Committee [Draft]

Freedom of Information Reform (Scotland) Bill: Stage 1

Meeting date: 27 November 2025

Katy Clark

Proposed new section 41A of the 2002 act refers to section 47(1) of that act, in which a narrow set of circumstances apply. It says that a person who is dissatisfied with a notice or

“the failure of a Scottish public authority to which a requirement for review was made to give such a notice ... may make application to the Commissioner for a decision whether, in any respect specified in that application, the request for information to which the requirement relates has been dealt with in accordance with Part 1 of this Act.”

That is a very narrow set of circumstances.

Standards, Procedures and Public Appointments Committee [Draft]

Freedom of Information Reform (Scotland) Bill: Stage 1

Meeting date: 27 November 2025

Katy Clark

It is clear in the bill that the provision relates to information that is provided only to the commissioner and that the circumstances that are outlined in section 47(1) of the 2002 act have to apply. The provision is based on experience in practice that this can become an issue, and it would assist the Scottish Information Commissioner in their work if the exemption was allowed. On that basis, it is a reasonable request from those who have worked in the commissioner’s office.

Standards, Procedures and Public Appointments Committee [Draft]

Freedom of Information Reform (Scotland) Bill: Stage 1

Meeting date: 27 November 2025

Katy Clark

That is for consistency; the view is that there would be a firewall. The repeal would mean greater accountability and consistency in the implementation of the legislation. That is the thinking behind it. [Interruption.]

Carole Ewart is pointing out to me that other regulators investigate themselves, so it is not a new approach—it would adhere to that general principle.

Standards, Procedures and Public Appointments Committee [Draft]

Freedom of Information Reform (Scotland) Bill: Stage 1

Meeting date: 27 November 2025

Katy Clark

The examples that were used would all be covered in other ways. I cannot envisage why the power would be required, but, if the Scottish Government had strong views on the matter, it could lodge amendments at stage 2. The evidence that we have taken and the views from stakeholders show that the power is not required. There is strong support for its removal.

Standards, Procedures and Public Appointments Committee [Draft]

Freedom of Information Reform (Scotland) Bill: Stage 1

Meeting date: 27 November 2025

Katy Clark

The position is very similar to the other examples that have been put to me. Although I hope that it would never be used, this is another provision that is intended to be a deterrent and to help drive organisations to deliver on their legal functions and statutory obligations.