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SCOTTISH EXECUTIVE FREEDOM OF INFORMATION (SCOTLAND) ACT 2002:OPEN LEARNING WORKBOOK

MODULE 1
FREEDOM OF INFORMATION IN CONTEXT - WHY HAS FREEDOM OF INFORMATION BEEN INTRODUCED?

1.1 CONTENT AND LEARNING OBJECTIVES

This module explains the broader context in which the Freedom of Information (Scotland) Act 2002 ("FOISA" or "the Act") has been introduced. Once you have worked your way through this module you should understand:

• The ideas underlying the introduction of the Act
• The public interest in access to information

SUGGESTED TIME ALLOCATION: 1 hour

1.2 LEARNING MATERIALS

1.2.1 Why freedom of information?

"Openness is central to a modern, mature and democratic society". Scottish Executive; An Open Scotland; 1999

"The Act will give everyone the right to access the wealth of information that is held by Scottish public authorities. It will help to increase the accountability of public bodies, breaking down a culture of official secrecy and making sure that public bodies look outward to the needs and aspirations of the individuals and communities that they are there to serve." Scottish Executive FAQs

The Scottish Parliament has passed the Freedom of Information (Scotland) Act 2002. The details of this Act are covered in the rest of the Workbook. Firstly, it is helpful to understand some of the reasons why this Act has been introduced and why it is important.

1.2.2 The public interest in freedom of information

The quote from An Open Scotland captures the essence of the public interest in freedom of information by describing it as central to a democratic society. A democracy is (colloquially) "government by the people for the people" and such government, in order to be truly democratic, must be conducted as openly as is possible. The public should be entitled to know what those who govern them are doing in their name.

There are some specific reasons why the public might wish a government to be open. For example:

• To enhance the structuring of decision making to improve accountability and participation;
• To ensure the proper administration of justice and law enforcement;
• To contribute to ensuring effective oversight of expenditure of public funds and that the public obtain value for money;
• To ensure the public are adequately informed of any danger to public health or safety, or to the environment.

All of these have been recognised by the Scottish Ministers in their section 60 Code of Practice (due for publication in Spring 2004). This will be covered in more detail throughout the workbook.

1.2.3 A right to information in Scotland

One approach to considering the public interest in access to information is that it enables the public to see that the standards required in public life are being met. As such the starting assumption under the Act is always that access to information should be provided wherever possible. Secrecy will always require a strong justification.

This is why the Act starts with a general right to information. Section 1 of the Act says that "A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority."

Those who have to deal with and make decisions about how access requests are handled and whether exemptions should be claimed in particular cases should consider the issues in this broader context. As the Scottish Executive has put it in the Overview,

"The public interest test involves considering the circumstances of each particular case and the exemption that covers the information. The balance will always lie in favour of disclosure; information should only be withheld if the public interest in withholding is greater than the public interest in releasing it."

If there were any doubt about the overriding purpose and approach of the FOISA the long title to the Act should be considered. It is,

"An Act of the Scottish Parliament to make provision for the disclosure of information held by Scottish public authorities or by persons providing services for them.." (emphasis added).

Scotland is not the only country to have freedom of information legislation, many countries around the world have this, including the rest of the UK, USA, New Zealand, Canada and Ireland.

1.2.4 Exemptions under the FOISA

Striking the balance

" Extract from Freedom of Information Act (Scotland) 2002 Overview published by the Scottish Executive

Where access rights apply they always have to be balanced against other interests in withholding information. Later in the Workbook you will cover the exemptions to the rights of access in more detail.

1.4 SUMMARY

The FOISA was introduced by the Scottish Parliament to ensure that people have the right to access information held by Scottish public authorities. It aims to increase openness and accountability in government and other public authorities. The FOISA is an important element in ensuring a thriving democracy.

1.5 KEYWORDS

1.6 REFERENCES

Section 1 FOISA Right to information
Section 2 FOISA Effect of exemptions

1.7 RESOURCES

Scottish Executive FAQs
: www.scotland.gov.uk/government/foi/faqs.pdf

Scottish Executive Overview:
www.scotland.gov.uk/government/foi/foioverview.pdf

The Freedom of Information (Scotland) Act 2002:
www.scotland-legislation.hmso.gov.uk/legislation/scotland/acts2002/20020013.htm

1.8 SELF-ASSESSMENT CHECKLIST

1. The FOISA is intended to achieve the following:

• increase the general public's access to information;
• increase the accountability of public bodies; and
• help public bodies to serve better the needs of their communities.

TRUE or FALSE?

2. The Act will have a direct impact on the Scottish Parliament, the Scottish Executive, local authorities and a number of other public authorities in Scotland. TRUE or FALSE?

3. The Act cannot provide complete freedom of information to the public as there is a need to balance the freedom against other matters of public interest, practical matters such as national security, police investigations and the development of government policy. TRUE or FALSE?

4. Scotland is the only country to have introduced freedom of information legislation? TRUE or FALSE?

Click here for answers

1.9 WHAT THEY SAID

"Although freedom of information is, on the face of it, a set of quite simple principles - a legal right of access; a limited set of exemptions to protect sensitive material; and an independent arbiter to supervise the regime - the detail can be far from straightforward". (Jim Wallace - MSP)

"Passing the [Act] will provide a potential to move with the times. A true culture of openness can be created. This is an age in which citizens have high expectations of public and private authorities in respect of information and answers that they want and that affect their lives". (Pauline McNeill - MSP)

1.10 CASE STUDY

Task

1. Do you agree that the Courier should have been given access to the lease? Do you think that there is a public interest in such information becoming available?

2. Do you consider that the piece should have included details of the officials and politicians involved or was this an invasion of the privacy of the individuals? If it was included do you think that photographs should have been included?

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