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 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.

I thank the committee for allowing me to appear today and for the work that you are undertaking to scrutinise this member’s bill. I also take the opportunity to thank all those who have engaged with the process: those who responded to both consultations, those who attended events, those who met me to discuss the bill and those who have taken part in the committee’s proceedings. In particular, I thank Carole Ewart, from the Campaign for Freedom of Information in Scotland, who has worked with me throughout the process, and the Scottish Information Commissioner and his office, who have worked with us on some of the details.

The bill attempts to bring together work that has been carried out over a number of parliamentary sessions and the recommendations of the four Scottish Information Commissioners who have been appointed since the Freedom of Information Act (Scotland) Act 2002 was enacted. The bill contains a set of specific technical proposals, which have considerable support; it also makes provision to give the Parliament a power through its committee system that could lead to a parliamentary vote to designate a body.

The Public Audit and Post-legislative Scrutiny Committee’s review of the 2002 act, which was conducted in the previous parliamentary session, made recommendations that are included in the bill, such as the introduction of a “pause the clock” mechanism and recommendations to ensure proactive disclosure in a more systematic and accessible format for the public.

Successive Information Commissioners have consistently recommended modernising the operation of FOISA, including expanding FOI coverage to more public functions, improving record keeping and information management, and enhancing the commissioner’s power to ensure compliance.

The bill is also a recognition that rights have been lost in many sectors due to outsourcing. My bill seeks to reflect on the practical recommendations that have been made, and we have attempted to respond to, and reflect in the bill’s provisions, the issues that have been raised by stakeholders during the process. I had a number of meetings with the former minister during the process.

Carole Ewart and I are happy to answer questions.

I will focus on the issues that you specifically mentioned.

People have argued, over many years, for proactive publication, and it has been recommended by Information Commissioners and other stakeholders who work regularly with freedom of information. The proposals around proactive publication are also based on what has happened in other jurisdictions. The view is that, although the 2002 act was framed with the best of intentions, the reality is that the publication schemes have not worked. The proposals have been developed over many years, and there is a great deal of consensus around them among those who are interested in and engaged with the issues, who see them as a more effective way to take things forward. In particular, all four Information Commissioners support the proposals in the bill. We have moved forward on the basis of that consensus among all the stakeholders, who tend to be people who are quite actively involved in FOI.

On the new offence, I heard last week’s evidence. The new offence is in addition to offences that are already on the statute book but that are very rarely used. It is hoped that the offence will have a deterrent effect—that is how it was envisaged. It has been proposed as a result of a specific set of circumstances, but it is hoped that it will never be used. Basically, it deals with a loophole that has been discovered. Again, the proposal has the full support of the Scottish Information Commissioner’s office. Indeed, we worked with it on this and other parts of the bill to ensure that they were drafted in a way that was workable for that office.

The only new designations that would automatically take place as a result of the bill would be those under section 3, on publicly owned companies. People can already make FOI requests about those companies, but any requests would have to be made to the public body that owned the company in question. We hope that there will be savings, because it will no longer be necessary to go to the parent body, which would otherwise have to retrieve the information from the publicly owned body and then provide it to the member of the public or whoever made the FOI request. In drafting the financial memorandum, we looked at those organisations. We costed in that there may be a cost for the publicly owned body, but we hope that that cost would be transferred from the organisation that owns it.

The evidence that the committee has heard and, indeed, the evidence that was put before me is that there is a very wide range of views and evidence on the cost of an FOI request. The amount that different organisations spend varies tremendously. Sometimes, the cost is said to be related to the efficiency of the organisation’s systems and the amount of resource that it decides to put into FOI compliance.

The policy intention behind the bill is to reduce cost, and we hope that that will happen through standardisation and the codes of practice. However, we recognise that when there is a designation of a new body—it could be a very large body—there will be costs for that body, and we have outlined those in the financial memorandum.

In general, those costs will not be borne directly by the Scottish Government; they will be borne by the new body. That body might be a multinational company, a third sector organisation or a charity. It could also be a private body—for example, it could be a privately owned care home, if the Parliament decided to go down that path. However, all those matters will be looked at by the Parliament when the Scottish ministers come forward with a recommendation for a designation or, indeed, if the Parliament decides to use the designation mechanism that is proposed in the bill.

That is a bigger question. Why Governments do not always act as quickly as they could is not a party-political question. I suppose that they listen to stakeholders from all sides and always face pressures not to act as well as pressures to act. It is difficult to explain why decisions are taken not to act, but I presume that it is because matters are complex.

You have heard evidence about stock transfers. When council houses moved to housing associations and other bodies, there was a loss of rights and it took 13 years for those to be brought back. There has been a loss of rights in many sectors, such as when there was outsourcing in the justice sector—there is no sign of those services coming back to being run by the Scottish Government. Rights have been lost and political decisions have not been made to maintain those after services have been transferred.

As you have heard in evidence, ScotRail is now back in public ownership, because of which we have FOI rights again. Designation does not seem to have been significantly onerous for that body. The housing associations and other bodies that are now required to comply with the legislation receive only a relatively small number of requests.