Scottish authorities should be given more time to pursue FOI evaders, says outgoing watchdog

Kevin Dunion said that the current six month period within which action must be taken is inadequate and must be doubled, or changed so that authorities have six months from the discovery of an act to take action, rather than six months from the carrying out of the act.

"In most cases it will only become apparent that an offence has been committed as a result of investigations into an appeal which has been made to the Commissioner," Dunion said in his report (14-page / 742KB PDF). "It is likely that more than two months will have elapsed from the date of an original request before an appeal can be made to the Commissioner. Furthermore the evidence may come to light only after an Information Notice has been used to secure information from the authority, which may cause a further 42 days to elapse."

"A remedy could be effected by a change to section 65 of FOISA,[Freedom of Information (Scotland) Act] stipulating a period within which prosecutions should commence. This period could be for proceedings to commence within six months of the contravention coming to light (rather than six months from when it occurred, as currently required by section 136 of the Criminal Procedure Scotland Act 1995). Alternatively it could stipulate that the proceedings should commence within 12 months of the contravention having occurred, as proposed by the Scottish Government in its draft Freedom of Information (Amendment) (Scotland) Bill," Dunion said.

The changes would give the Commissioner's Office more time to investigate alleged wrongdoing and file prosecutions. Dunion outlined the proposals in a special report on the state of FOI in Scotland that he submitted to the Scottish Parliament. Dunion is shortly due to vacate his post as Scottish Information Commissioner.

Under FOISA a person employed by a public authority who has the "intention of preventing the disclosure by the authority" of information legitimately requested under the terms of the Act by altering, defacing, blocking, erasing, destroying or concealing "a record held by the authority" can be fined up to £5,000.

However, current rules set out in the Criminal Procedure Scotland Act mean prosecutions for these offences can only be brought within six months of the offence being committed.  This is not a long enough time for the Commissioner to bring a prosecution due to the various procedures involved before it can investigate cases, Dunion said.

Last month the Scottish Government announced plans to revise FOISA and launched a consultation to gather views on changes such as increasing the timescale for prosecuting those who alter public records to prevent disclosure.

Dunion said that the amended law should not introduce a general charge for making an FOI request. He said such a fee "could prove to be regressive and socially excluding for those on low incomes". Under FOISA public authorities can legitimately charge "for the communication of any information" if the body determines that complying with the request would incur "excessive cost".

"Scotland has sound charging provisions for FOISA. Where changes are made these should not be with the consequence – far less intention – of frustrating the intent of the legislation," Dunion said.

"Charges which deter even the most basic requests are not consistent with our FOI regime, which is founded on the premise that every written request for recorded information is an FOI request. Statistics have shown that the public are aware of their rights and are making requests."

"The number of appeals to the Commissioner is rising steeply, and in the majority of cases those appeals have been justified in full or in part. The process of greater transparency would be hindered if people were prevented from being given information to which they were entitled, or deterred from asking for it, on the grounds of cost," he said.

Dunion said the public should be given the right to make FOI requests for information stored by bodies that work on behalf of public authorities. Under FOISA only "designated" bodies listed are subject to the laws set out in the Act and although the provision exists to add organisations to this list Scottish Ministers have not done so since the law was enacted in 2002.

In January last year Scottish Ministers decided against adding organisations such as leisure, sport and cultural trusts established by local authorities to the list of designated bodies subject to FOISA. The decision was taken following a consultation on the issue and also meant that private contractors that run prisons or build schools, hospitals or roads under private finance initiatives (PFI) are not required to disclose records when requested.

"No additional bodies have been designated since FOISA came into force and this calls into question whether Scottish rights to information will keep pace with the change in delivery of public services, and whether those spending public funds can be held to account at an operational or local level," Dunion said.

"There are two aspects to my concern over designation. The first is that designation is not necessarily about extending rights to information but safeguarding them," he said. "This is particularly true where services which were once supplied directly by public authorities covered by FOISA are now delivered by bodies which are not, such as: trusts established to deliver services on behalf of local authorities; those private contractors which provide health, educational and penal infrastructure and services to the public sector; and housing associations to which housing stock has been transferred from local authorities. Tenants, patients, parents, service users, voluntary organisations and indeed elected members lose the right to information when such a change in service delivery takes place."

In November a number of organisations were added to a list of "designated" public authorities subject to FOI laws in England, Wales and Northern Ireland. The Financial Ombudsman Service (FOS), along with the Association of Chief Police Officers of England, Wales and Northern Ireland (ACPO) and the Universities and Colleges Admissions Service (UCAS), were added as a public authority under the Freedom of Information (Designation as Public Authorities) Order 2011.

The Scottish Information Commissioner also outlined a recommendation that future incumbents of the post should have the power to "seek affidavit evidence or conduct formal questioning under oath". He said this would help the Commissioner to conduct investigations and "secure unrecorded information".