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.