Thursday, January 27, 2011

Campaign "disappointed and astonished" at Scottish Government's FOI "retreat"

Press release: 27 January 2011
The Campaign for Freedom of Information in Scotland (CFOIinS) said it was deeply disappointed by yesterday’s announcement by the Scottish Government that it was shelving plans to make private contractors subject to Scotland’s Freedom of Information Act. The government cited opposition from the contractors and their representative bodies as a key factor behind their decision. It had been proposing to extend the Act during the current Parliamentary session.

Carole Ewart, co-convenor of Campaign for Freedom of Information in Scotland said:

“We are deeply disappointed that the Government has reversed its position on extending the Act because of opposition from the private sector bodies themselves. It would have been obvious to ministers before making these proposals that the contractors did not want to be covered, and we are amazed that merely because they have now said they don’t like the idea the government has shelved it. If FOI was only applied to bodies that volunteered to be covered we wouldn’t have a Freedom of Information Act in Scotland at all.”

In December 2009 the Scottish Government announced that it was considering extending the Freedom of Information (Scotland) Act (FOISA) to: contractors who build and maintain hospitals and schools, who operate and maintain trunk roads under the PFI Initiative or who run privately managed prisons or provide prison escort services. Only contracts above certain values would be covered. Trusts running local authority sports, leisure and cultural facilities were also being considered for inclusion along with the Glasgow Housing Association and the Association of Chief Police Officers in Scotland. However, following a consultation exercise, the government yesterday announced that the proposals would not now proceed. It said that a majority of the bodies concerned had opposed being brought under the Act, although there was “near universal support” from everyone else who had commented on the proposals.

The Scottish Government also said that there was “minimal evidence” of people having difficulty obtaining information about the private contracts, for example on road building. But the Campaign pointed out that only two weeks ago the Scottish Information Commissioner ruled that information about the cost of utility contracts on the Edinburgh Trams Project could not be disclosed because the information had been provided by the contractors in confidence to tie Ltd, the public body responsible for the project. (Decision 006/2011 Mr Jim Cooney and tie Limited, Value of tie contracts, 11 January 2011).

Plans to bring the Association of Chief Police Officers in Scotland under the Act are also now not proceeding, after ACPOS questioned the value of the move. The Campaign pointed out that the equivalent body in England, Wales and Northern Ireland – ACPO - had volunteered be brought under the UK’s Freedom of Information Act. The Westminster government confirmed only two weeks ago that ACPO would be covered by the UK Act, a decision originally announced by the last Labour government.

Ms Ewart said “the Scottish public will now have less information about its policing than the public in the rest of the United Kingdom.” She added: “The Westminster government is also proposing to extend the UK FOI Act to other bodies including the Local Government Association, the NHS Confederation, the Law Society and the Bar Council – but there are no moves to bring their Scottish counterparts under Scotland’s FOI Act. Scotland is now falling behind England in FOI terms. When the legislation was originally passed, the Scottish Act was widely regarded as better than that which applied across the rest of the UK.”
Full press release here.

Wednesday, January 19, 2011

Amendments to Royal exemption come into force

An Order bringing into force the amendments to the FOI Act's exemption for communications with the Royal Family that were contained in the Constitutional Reform and Governance Act has been made and comes into force today (19 January 2011). This means that from now on information relating to communications with the monarch, the heir to the throne and second in the line to the throne will be subject to an absolute exemption for 20 years or until 5 years after the death of the individual, whichever is later.

In a written ministerial statement, Ken Clarke MP, the Lord Chancellor and Secretary of State for Justice, stated:
This amendment to the FOI Act is necessary to protect the long-standing conventions surrounding the monarchy and its records, for example the sovereign's right and duty to counsel, encourage and warn her Government, as well as the heir to the throne's right to be instructed in the business of Government in preparation for their future role as monarch. The changes will come into force tomorrow.
The Campaign for Freedom of Information was unhappy at the decision to implement a more restrictive exemption for senior members of the Royal Family. A previous note on the relationship between the Royal Family and FOI before the changes came into force is here.

The Constitutional Reform and Governance Act (2010) (Commencement No. 4 and Saving Provision) Order 2011 is here and Explanatory Notes here.

Friday, January 07, 2011

Campaign's response to Government's plans to extend the FOI Act

The Campaign for Freedom of Information has welcomed the coalition government’s announcement (see earlier post here) that it proposed:
  • to extend the FOI Act to a range of regulatory, representative and other bodies 
  • to implement the last government’s measures to release old government records after 20 years instead of 30 years
  • apply the Act to companies that are jointly owned by more than one public authority.
The Campaign said these were valuable improvements to the FOI regime.

However it pointed out that before the election both the Conservatives and Liberal Democrats had promised that Network Rail would be covered and that the Conservatives’ had also promised to cover Northern Rock. Neither body is being covered. Many other individual bodies, including electoral registration officers and returning officers should also be added, the Campaign said.

It also called for companies providing contracted out functions to be brought under the Act, particularly those relating to health, social services, education and criminal justice and for the Act to be extended to housing associations. The Campaign pointed out that the Scottish Government was proposing to extend the Scottish FOI Act to contractors who build or maintain schools, hospitals and roads (where the contract value is above certain thresholds), to private bodies running prisons or providing prison escort services to contractors running local authority sports or leisure centres and to the Glasgow Housing Association.

The Campaign said it was also unhappy at the decision to implement a more restrictive exemption for senior members of the Royal Family. At present, communications with the Royal Family are exempt, but potentially disclosable on public interest grounds. In future the public interest test will be removed for communications with the monarch and the next two in line to the throne. The Campaign said that where Prince Charles was seeking to actively intervene in policy decisions, his input would be withheld in all circumstances, even if it had played the decisive role.

Finally, the Campaign suggested the proposal to allow the Information Commissioner to serve for only a single 5 year term was a potentially double-edged sword. Limiting appointment to a single term only meant that the Commissioner could not be tempted to comply with the government’s wishes in order to be reappointed. But appointing a new Commissioner every 5 years could be potentially disruptive, as a new Commissioner needed at least a year to master the brief, and the Campaign suggested the Commissioner’s term of appointment should be extended to 6 or 7 years.

Full press release here.

Government plans to extend the FOI Act

The Ministry of Justice has announced plans to extend the scope of the FOI Act. The plans include:
increasing the number of organisations to which FOI requests can be made, bringing in bodies such as the Association of Chief Police Officers, the Financial Services Ombudsman, and higher education admissions body UCAS; and also all companies wholly owned by any number of public authorities

consulting on bringing a range of further bodies which are believed to perform functions of a public nature under the FOI umbrella, including Examination Boards, Harbour Authorities, the Local Government Association and the NHS Confederation

making most public records available at The National Archives and other places of deposit ten years sooner, when they are 20 years old; the package will also reduce the time some types of information - including court records, ministerial correspondence and policy formulation - can be withheld, to 20 years instead of 30

undertaking post legislative scrutiny, to see how well the Act is working in practice and whether there are further changes to be made.
The full press release is here and response issued by the Information Commissioner's Office here. Further comment to follow later today.

Thursday, January 06, 2011

Scottish Information Commissioner's Decisions courses Feb 2011 - places still available

The Campaign for Freedom of Information in Scotland is providing a half-day training course in Glasgow on Tuesday 1 February 2011 and in Aberdeen on Wednesday 2 February 2011, both at 1.30 to 5pm. The training will be lead by Maurice Frankel, Director of the Campaign.

While the course will focus on the decisions issued by the Scottish Information Commissioner, it will also cover decisions issued by the UK Commissioner and Tribunal and the Court of Session that have implications for Scottish public authorities.

Details of the training course and booking form can be downloaded from

Please note:
There is a 30% discount for second and subsequent bookings from the same organisation

Advocates and solicitors may wish to claim 3 hr CPD