Public Law

Holyrood’s annual Freedom of Information Conference – in association with the Office of the Scottish Information Commissioner – took place in Edinburgh today. Among the speakers were your (not so) humble author (on data protection and FOI, since you ask), the Commissioner and Bruce Crawford MSP, the Scottish Government Minister for Parliamentary Business. The official billing may not have had us in quite that order.

As FOI falls within Bruce Crawford’s remit, he used the conference to announce that he’ll be introducing a Bill to amend Scotland’s FOI legislation. He said that this will happen next year (but didn’t specify whether that will be before May’s election, or is contingent on the SNP remaining in government post-election).

The Bill will address two key issues. The first is the time limit for bringing a prosecution if someone deletes or destroys information to frustrate an FOI request (which is an offence under s.65 of FOISA). At the moment the limit is 6 months, but such acts will often not come to light until the Scottish Information Commissioner has investigated how the request was dealt with. Since that almost always takes longer than 6 months, it’s very unlikely that an offence could ever be prosecuted. The second issue is the 30-year limit after which many of the exemptions allowing information to be withheld cease to apply. Bruce Crawford indicated that this would be made more “flexible” –  the Government has already adopted a 15-year timeframe for its own documents.

Though these are the issues driving the Government’s current thinking on amendment, the Bill will be preceded by a consultation in which the whole of the legislation will be up for grabs. I suspect we’ll be submitting our own thoughts to the Government in due course, but if you have any of your own there’s no need to wait – feel free to comment below.

Charles Livingstone

Partner at Brodies LLP
Charles works with a broad range of commercial, public sector, charitable and individual clients, advising them on public law issues including judicial review, human rights, information law and the powers and duties of local and other public authorities. He is named by Chambers & Partners in both Competition Law and Administrative & Public Law.
Charles Livingstone

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