Seòmar agus comataidhean

No. We have attempted to bring together concepts and proposals that have been on the table for quite a lengthy period of time. There may well be other things that could have been included, but we have attempted to coalesce around the areas in which the Campaign for Freedom of Information in Scotland, other bodies and the Information Commissioner are in agreement. I appreciate that the Scottish Government is taking a different view on some aspects of the bill. However, when it comes to the stakeholders who have engaged with the process, what is in the bill is not necessarily what everybody wants, but it is what everybody is comfortable with.

In larger organisations, that would definitely be the case. In very small organisations—although very few of them would need to comply with the legislation—the chief executive might have that responsibility.

Well, the specific offence that is being proposed comes out of a specific set of experiences. It is a defined set of circumstances. I would argue that there is a gap in the legislation. You will be well aware, convener, that the threshold of beyond reasonable doubt for criminal conviction is high and that it would be necessary to prove intent—that somebody intended to alter documents, with the intent to prevent disclosure. The threshold would be high, and we would hope that it would never be used. However, it would make it clear to Government and officials that, if they thought a FOI application might come—because it was self-evident that that was highly likely—that material should be protected.

The time would run from the point at which any reasonable person, and perhaps everybody, would be of the view that it is likely that there might be a freedom of information request because of the nature of the material and of the issue.

It might well be that, at the time that information was destroyed, it would not have been reasonable for that person to believe that it would become a massive issue five or 10 years down the road. In those circumstances, there would not be a case to take through the courts. The provision has been envisaged and framed on the basis that the offence would be used in exceptional circumstances.

Existing offences are framed in very similar terms. The provision is mirrored on existing offences that have been in place for many years but would extend to the situation where records were altered at an earlier stage, before an FOI application was made. We know that those other offences have very rarely been used. Although we have worked in our financial memorandum on the basis that they will be used once or twice a year, that is very difficult to conceive in reality.

The Information Commissioner dealt with that very well last week. The publication codes would make very clear to a local authority what information they would require to keep or to publish. The threshold is high, and it would have to be an extreme set of facts that led to the Information Commissioner deciding to try to seek a prosecution, and the Crown Office would then obviously would have to take a view. I imagine that it would be an extreme set of circumstances in which it would be felt in the public interest to pursue a prosecution of that nature.

Yes.

The intention behind my proposal, which has come from those who are directly involved in the process, is to speed up the process and encourage early clarification. Again, I view it as a technical amendment. There seems to be consensus that this is the right approach among those who are heavily involved in freedom of information, such as information commissioners, academics, the Campaign for Freedom of Information in Scotland and those who use freedom of information regularly. The issue was also looked at by the committee in the previous parliamentary session.

Carole Ewart might want to add something because you have raised a technical point.

Proposed new section 41A of the 2002 act refers to section 47(1) of that act, in which a narrow set of circumstances apply. It says that a person who is dissatisfied with a notice or

“the failure of a Scottish public authority to which a requirement for review was made to give such a notice ... may make application to the Commissioner for a decision whether, in any respect specified in that application, the request for information to which the requirement relates has been dealt with in accordance with Part 1 of this Act.”

That is a very narrow set of circumstances.

It is clear in the bill that the provision relates to information that is provided only to the commissioner and that the circumstances that are outlined in section 47(1) of the 2002 act have to apply. The provision is based on experience in practice that this can become an issue, and it would assist the Scottish Information Commissioner in their work if the exemption was allowed. On that basis, it is a reasonable request from those who have worked in the commissioner’s office.