The new law creates a right of access to information held by
Scottish public authorities, a limited number of narrowly drawn
exemptions to protect sensitive information and an independent
Scottish Information Commissioner with powers to promote and
enforce the legislation, and with the power to order the disclosure
of information. It follows the UK Freedom of Information Act,
passed by Westminster in 2000.
The Scottish FOI law is easily confused with the UK law for
which Elizabeth France, the UK’s Information Commissioner, carries
responsibility. The Scottish FOI Act will only apply to the
Scottish public authorities, not those which have not been
devolved.
So, for example, a Freedom of Information request by an
individual to a tax office in Glasgow for access to information
will be dealt with under the UK Act because the tax office is under
the authority of the Inland Revenue. Accordingly, the request is in
the remit of the UK Information Commissioner. A request to Glasgow
City Council, on the other hand, would be dealt with under the
Scottish Act, because the Council is a Scottish public authority,
and is in the remit of the new Scottish Information Commissioner.
Data Protection requests will continue to be the remit of the UK
Information Commissioner.
Both Acts are very similar. However, one slight difference
relates to the exceptions to the general duty of public bodies to
disclose information held upon request by an individual. Under the
UK Act, the public body must show “prejudice” to justify a refusal;
under the Scottish Act, a public body must show “substantial
prejudice”. Accordingly, those in Scotland have, potentially,
access to more information than their English counterparts.
Another anomaly exists in the division of data protection and
freedom of information work. The Scottish Information Commissioner
has authority to decide whether a particular disclosure can be made
subject to a request under the Scottish FOI Act; but in considering
this, he must decide whether the disclosure would breach a
principle of the Data Protection Act – and he must make this
judgement call without having any authority under the Data
Protection Act. He may decide that the disclosure does not breach
such a principle; the UK Information Commissioner may disagree.
Deputy First Minister, Jim Wallace, described the new FOI Bill
as “a cornerstone of our radical reform agenda” and added:
“For the first time ever people in Scotland
will have a statutory right to access Scottish information. Since
1999, the Scottish Parliament has been the vehicle for much
legislative change. Outdated laws have been reformed or abolished
and modern legislation introduced - the new FOI Act is a
cornerstone of our radical reform agenda.
The Bill will become an Act following Royal Assent.
The final text will be published in due course.
