Letter to MSPs for FOI Bill stage 2

The Campaign for Freedom of Information in Scotland

February 5, 2002

Dear MSP,

Freedom of Information (Scotland) Bill Stage 2 Proceedings

I am writing to highlight those amendments that the Campaign for Freedom of Information in Scotland particularly support in relation to the Freedom of Information (Scotland) Bill. These comments deal with amendments to the end of Part of 2 of the bill (section 41). We hope you will be able to support them.

We do not support amendments 4 to 7, which would extend the time allowed for responding to requests from 20 working days to 30 working days. 20 working days is the period currently allowed for responding to requests under the Code of Practice on Access to Scottish Executive Information and the equivalent English code. In 2000, 86% of requests under the Scottish code and 96% of requests under the English code complied with the 20 day limit indicating that this is a realistic limit.

We particularly support the following amendments:

59 To prevent authorities destroying a requested record, if they intended to destroy it before receiving the request.
28 To allow access to unrecorded information. This is already the approach under the current Code of Practice on Access to Scottish Executive Information (the “openness code”) and of New Zealand’s FOI law.
53 To apply the Bill to all bodies with public functions or who provide the services of an authority under contract, not just those individually designated by ministers.
52 To bring registered social landlords under the Bill.
1, 112 To limit Ministers’ powers to remove bodies from the scope of the Bill or restrict the scope of the Bill to certain types of information only.
30, 31 To bring companies which are controlled by public authorities under the Bill.
24, 26, 32, 118 To permit requests and appeals to be made other than in writing by disabled persons.
116, 61 To delete or restrict the power to refuse requests on the grounds that they are ‘vexatious’. If the provision is retained, we think it should only be available in cases where the Commissioner has ruled that there is no right of access to the information in question. [But we do not support amendment 34, which would define a “vexatious” request as one which sought “trivial” information.]
63 The Bill is currently weaker than the UK FOI Act in that it allows authorities to refuse to say whether they hold exempt information, even where it would not be harmful to do so. This amendment would bring the Bill into line with UK Act by requiring to say whether they hold exempt information, unless it would be harmful to do so.
36, 37 Allow applicants 40 working days, instead of 20, to apply for review of an unfavourable decision.
68, 69, 70 Extend the scope of the information which authorities must consider including in their publication schemes to (a) internal guidance (this is currently published under the Scottish Executive’s openness code, and under most overseas FOI laws) (b) statistics about the authority’s handling of requests (c) a log of information disclosed under the Bill.
38 Provides that the Bill’s right of access takes precedence over any statutory prohibition on disclosure. This is currently the approach under other access legislation, such as s 27(5) of the Data Protection Act 1998 and regulation 3(7) of the Environmental Information Regulations 1992.
71 Inserts a “prejudice substantially” test into the class exemptions in section 29, for policy formulation, ministerial communications, Law Officers’ advice and ministers’ private offices. This is in line with the current Scottish Executive openness code (which has a harm test for internal discussion) and the equivalent Welsh code, where the test is “substantial harm”.
72, 73 Removes factual information and its analysis from the scope of the policy formulation and related exemptions in s 29 and the exemptions in section 30 (effective conduct of public affairs etc). Factual information and its analysis cannot be withheld under the policy advice exemptions in the Irish FOI law, and a related provision appears in the Australian Act.
40-42, 50 Reduce the scope for withholding statistical information under s 29.
58 Applies a “prejudice substantially” test to trade secrets.
75 Defines “prejudice substantially” in relation to the commercial interests exemption.
121 Prevents factual information about the level of services being withheld under the commercial interests exemption.
76 Prevents the confidentiality exemption (s 36(2)) applying to information supplied by one public authority to another.
45, 77, 78 Other provisions limiting the scope of the confidentiality exemption.
79 Prevents the identity of a public official, or the contribution made by an official to policy/decision making, being withheld on the grounds that disclosure would breach the official’s privacy rights. (Other exemptions permit such information to be withheld where necessary to protect safety or the policy making processes.)

Please let us know if we can provide any further information.

Yours sincerely

 

Maurice Frankel
Director

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