The Scottish Government

Freedom of Information ( Scotland ) Act 2002

Review of operation after first year in force

Review Terms of Reference

Background and purpose of the review

1. The Freedom of Information (Scotland) Act 2002 (FOI(S)A) came into force on 1 January 2005. The Act provides a statutory right of access for the public to information held by Scottish public authorities. These range from national bodies such as the Scottish Parliament, down to individual GPs. Similar UK legislation (the Freedom of Information Act 2000) applies to reserved and cross-border authorities.

2. Freedom of Information gives people a legal right to access information for the first time. It is a driver for openness, accountability and transparency across the public sector. It provides an important means by which the public can gain access to information relating to those decisions which affect their everyday lives.

3. This right of access to information is subject to some exemptions, many of which can only be applied if the balance of the public interest allows. Where a request for information is refused, a clear justification based on the exemptions must be given. All applicants are entitled for a review of this decision, in the first instance by the authority, and then ultimately by right of appeal to the Scottish Information Commissioner. The role of the Commissioner is to interpret, promote and enforce the provisions of the Act. The Commissioner is appointed by the Queen on the nomination of the Scottish Parliament and s/he is completely independent of the Scottish Executive or any other public authority.

4. The focus of the Executive to date has been on ensuring that initial implementation of the Act was achieved effectively across the Scottish public sector. Ten months on from coming into force, the time is right to take stock and consider how certain aspects of the Act are working in practice. This review will provide an opportunity to assess the evidence and consult widely on how the Act is operating in practice.

Scope of review

5. The review will not encompass a wholesale look at the legislation. Rather it will concentrate on those areas where any agreed changes or outcomes would be achievable through use of subordinate legislation or amendments to the Codes of Practice. The following paragraphs identify some of the areas for consideration.

Fees Regulations

6. The current regulations prescribe a fee structure and designate an amount above which authorities are not obliged to provide the information sought. This is currently set at £600. Under the current fee structure, the first £100 worth of work on obtaining the information is free to the applicant. If the cost of providing the information would be more than £100 but less than £600 authorities can charge 10% of the cost of providing the information. The maximum chargeable would, therefore, be £50 where the cost to the authority was £600. Above the £600 limit the authority can charge the full amount or refuse to provide the information requested. Authorities may charge only for costs incurred in locating, retrieving and providing the information and can charge a maximum of £15 per person per hour for staff time.

7. The Executive made clear that it would have an early review of the fees regulations, once authorities had gained experience of operating under the Act and the impact of the fees framework became clearer. The fees regime needs to allow for appropriate and proportionate access to information while ensuring that resources are not diverted unreasonably from the critical work of public authorities. The review will enable us to assess how the fees regime has operated in practice and consider possible options for any change.

Coverage of the Act

8. The Act includes powers under Sections 4 and 5 to amend its coverage. Section 4 allows changes to the list of Scottish public authorities in Schedule 1 of the Act. Section 5 provides powers to designate further bodies which appear to Scottish Ministers to be exercising a public function, or which are providing a service under contract to a public authority. These powers have not yet been exercised as the primary goal to date has been to make FOI work effectively for the 10,000 bodies which are currently covered. The review will provide an opportunity to consider this issue further and to gather views on the coverage of the Act and the basis on which any possible changes might be made.

Section 31 guidance

9. Section 31 (2) of the Act allows Ministers to certify that certain information is exempt from release, subject to the public interest, if it is required for the purpose of safeguarding national security. The Scottish Executive has produced a Guidance note for Scottish public authorities in relation to requests for information related to national security issues. The review will enable us to gather views on this guidance and, if necessary, produce an up-dated version. In particular it will be helpful to gather views on the processes and review requirements for Section 31 Ministerial certificates . [1]

Bars to disclosure

10. Prohibitions on disclosure of information currently exist in other legislation, and may conflict with the provisions of the Act. Section 64 of the Act provides a power by which these prohibitions might be amended or repealed. The equivalent power in the UK Act has been used once to date. The review will provide an opportunity to gather evidence to underpin any requirement to use the Section 64 power.

Overall operation of the Act

11. The Review and, in particular, the public consultation element, will also invite views on any other aspects of operation of the Act which are of concern. This could include, for example, views on the Codes of Practice or on the timescales required for compliance.

Process of review

12. The review will be undertaken by the Scottish Executive's Freedom of Information Unit. The Unit will work closely with key stakeholders including the Scottish Information Commissioner and the members of the Scottish Freedom of Information Implementation Group (SFOIIG). The review will be undertaken using a using a range of methods including:

Indicative key dates

(Note added August 2006 - please be aware that these indicative dates were published in October 2005. Consultation responses were in fact accepted up until 28th April 2006 and subsequent estimated timescales have also slipped) Any updates on progress of the review will be made available on the website as soon as they are finalised.

Summary and Conclusion

13. The review will, overall, provide an early opportunity to evaluate the effective operation of the Act and undertake fine-tuning where required. In particular it will:

· enable us to assess how the fees regime has operated in practice and consider possible options for any change

· provide an opportunity to consider the coverage of the Act and the basis on which any changes should be made

· enable us to consider any requirement for updating the Executive's guidance on Section 31 of the Act.

· provide an opportunity to gather clear evidence to underpin any requirement to use the power under Section 64 of FOI(S)A

· enable identification of any other significant issues arising from the first year of operation of the FOI regime

FOI Unit

Scottish Executive

October 2005

[1] One S31 certificate has been issued to date. It was issued in April 2005 for certain categories of G8-related information. We are not aware of any instance of it being deployed. Consideration of this certificate is not part of the FOI(S)A review as the continued requirement for or rescinding of the certificate is being considered by Scottish Ministers in conjunction with the UK Government