The Scottish cabinet has rejected key elements of Jack Straw’s Freedom of Information (FOI) Bill, in proposals published today.1 As a result Scotland will have a significantly better Freedom of Information (FOI) Act than the rest of the UK, according to the Campaign for Freedom of Information.
The Campaign’s director, Maurice Frankel, said: “The proposals would make it much more difficult for Scottish ministers to get away with unjustified secrecy than ministers in London. Scottish authorities will have to disclose information that their counterparts in England and Wales will be able to keep secret; and they will have to answer to an Information Commissioner with much tougher powers. MPs in Westminster will want to know why they are being asked to approve a conspicuously second rate bill, when ministers from the same parties north of the border have found it possible to go further.”
But the Campaign said that the Scottish proposals had retained some of the UK bill’s defects, in relation to “class exemptions” and ministerial vetoes – though these would apply more narrowly in Scotland than in the UK.
The proposals for a Scottish FOI Act go beyond those in the UK FOI bill in several key respects:
Substantial prejudice. To withhold information Scottish authorities would in most cases have to show that disclosure would cause ‘substantial prejudice’ to particular interests. The Home Secretary has rejected this test and the UK bill has the weaker test of “prejudice”, which makes it easier to withhold information.
Public interest. In some, but not all, areas Scotland’s Information Commissioner will have the final say on when disclosure is in the public interest. Under the UK bill, the Commissioner never has the final say, and can always be overruled by ministers or authorities.
Facts behind policy decisions. The Scottish proposals would require ministers to publish the facts and analysis behind policy decisions, unless to do so would substantially prejudice the frankness of discussions or collective responsibility. The Westminster bill allows ministers to suppress this information, even if disclosure would cause no harm at all.
Opinions. The Westminster bill allows authorities to withhold information which in their “opinion” would prejudice the effective conduct of public affairs. Giving legal weight to authorities’ opinions renders them largely immune from challenge. None of the Scottish exemptions give weight to an authority’s opinions, and this particular exemption does not appear at all.
Ministerial vetoes. Like the UK bill, the Scottish proposals contains some class exemptions which allow information to be withheld without evidence that it would cause harm. This applies to policy advice (though more narrowly defined than in the UK bill), investigations which could lead to prosecutions, and information supplied to an authority in confidence. In these areas the Scottish proposals also allow ministers to overrule the Commissioner on whether disclosure of such information is in the public interest. The Campaign said this was an “unwelcome reflection of the UK proposals”. However, a ministerial veto would require the support of the whole Scottish cabinet – an improvement over the UK proposals which permit individual ministers and authorities to ignore any ruling by the Commissioner on public interest.
The new proposals are contained in a consultation document, ‘An Open Scotland’, published by the Scottish Executive. It is available from http://www.scotland.gov.uk/library2/doc07/opsc-00.htmSocial tagging: foi bill > information commissioner > ministerial veto > policy formulation > scotland