Amending FOISA and Widening Scope

Sam Baker

FOI Unit, Scottish Government

Introduction

• The Amendment Act and what it does

• Other legislative changes – EIRs and s4

• Reducing lifespans of exemptions

• Extending covering of FOISA

Freedom of Information (Amendment) (Scotland) Act 2013

• Designed to address issues raised regarding original 2002 Act

• Consultation in 2011 on Bill proposals• Bill introduced to Parliament in May 2012• Changes made at Stage 2 following Committee/

stakeholder feedback• Bill passed unanimously 16 January 2013• New Act came into force 31 May 2013

What the new Act does

Amends the existing 2002 Act to: Increased flexibility to revise the lifespans of exemptions allow bodies to neither confirm nor deny if they hold

personal data (s18) allow longer period for prosecution of offences (s65) clarify that information available under a publication

scheme is exempt require Ministers to consult more widely on orders to

extend coverage and to report to Parliament every two years on their use of the power to extend coverage

The Amendment Act – a journey

“With the passage of the Amendment Bill we have reached an important landmark for FOI in Scotland. It is not the end of the journey, but it is an important milestone along the way….. It is a journey of greater openness and genuine transparency.”Nicola Sturgeon, Deputy First Minister, 2013

Other changes to legislation

Environmental Information RegulationsEIRs also amended to extend timescale for prosecution of offences (destroying, altering, concealing information)

Section 4 – public bodies subject to FOISAMobility and Access Committee Criminal Courts Rules CouncilScottish Civil Justice Council

Reducing lifespans of exemptions

• Some exemptions apply for information up to a certain age (e.g. 30 years)

• New Act gives flexibility to amend lifespans for some exemptions (but not necessarily all)

• Consultation launched May 2013• Proposes reducing most lifespans to 15 years in

line with Government policy on file release• Looking for responses and comments on

business impact by 31 July

Extending coverage of FOISASection 5 of FOISA – order-making powers to

extend coverageMSP and stakeholder calls for FOISA to apply to

organisations delivering services for public bodies Consultation in 2010 on potential bodies In principle support from many, but also concerns

about administrative burdenGovernment postponed decision until Amendment

Bill completed

Scotland’s 1st section 5 order

16 January 2013 – Deputy First Minister announces plans to cover culture, sport and leisure trusts.

Scottish Government consulted affected stakeholders on terms of draft order.

7 June 2013 – draft order laid in Parliament.Order to be considered by Local Government and

Regeneration Committee.Proposes that bodies will be covered by FOISA from

April 2014.

What next for FOI?

• Deputy First Minister committed to consulting on further extension of coverage – e.g. further arm’s length bodies.

• Continually checking Schedule 1 of FOISA is up to date – further section 4 orders if needed.

• If Parliament agrees, changes to lifespans of exemptions in 2014.