Monday, April 21, 2008

Attempts at restricting Freedom of Information over privacy are unworthy of Scotland as a democracy

The Freedom of Information Act, which has revealed many a scandal in Scotland, even toppled a few politicians on the way, now faces several tests over its very existence, with those who have been maligned by the FOI act, having their interests ... shall we say .. damaged by revelations to the public of things which generally should not be ... are now campaigning to limit the terms and scope of FOI.

Strangely enough even the now less than shiny new SNP Scottish Government have joined in the fight to limit FOI by maintaining legal challenges against a number of FOI requests which generally one would think were most certainly in the public interest ...

So much for an open Scotland then ...

The Scotsman reports :

Freedom of information must balance against an individual's right to privacy


Scotland's Freedom of Information Act has come a long way since it was introduced in 2005. According to the recent Scottish Information Commissioner's annual report, the Scottish Government and local authorities received over two- thirds of all the 1,574 applications to the commissioner, Kevin Dunion, since the Act came into force.

While public awareness of FOI legislation is high, at 74 per cent, and applications have been consistently high over the last three years, research indicates that certain social groups such as young people, the elderly and the disabled are less informed about FOI . It is vital to ensure all groups know their rights and are able to access information.

So, where does the Act go from here?

In his recent report, Dunion expressed concern that people's rights had been curtailed by the increasing trend of public authorities using private firms and charitable trusts to deliver public services. He has asked the Scottish Government to close this gap by extending the FOI legislation to bring in private contractors working in the public sector.

Dunion has argued that other countries solved this problem by ensuring that public authorities hold relevant information from private companies working on their behalf. In addition, private companies are designated as public authorities if they take over public contracts.

If these proposals, which could cover housing associations, go ahead, the implications to private companies will be interesting.

Considerable care will be required in drawing up contracts between the private and public sectors. Care will need to be taken to guard against potential compensation claims should it be judged that the private contractor has lost competitiveness due to contract information being in the public domain.

A further test for the FOI legislation comes with a House of Lords landmark case on the compatibility of data protection and freedom of information legislation. The outcome of this will have profound implications for all public authorities, businesses and other organisations that hold and process personal information about individuals.

The ruling will determine whether the Scottish Information Commissioner was entitled to order the Common Services Agency to disclose information about the incidence of childhood leukaemia in Dumfries and Galloway. In ruling, their Lordships will give crucial guidance on the interaction between the public's "right to know" under freedom of information legislation, and the legitimate privacy expectations of individuals under data protection laws.

The Lords have acknowledged that if an FOI request is made for personal data, it might be justifiable to ask why the data is required before accepting the request. If this conclusion is reached in the final judgment, expected before the end of August, then it is likely to upset the assumption that all FOI requests are "purpose-blind".

It is clear that there are some interesting challenges ahead for both Scotland's public and private sector in relation to FOI.

• Paul Minto is head of public services at HBJ Gately Wareing. The Scottish Information Commissioner will speak at their seminar "Freedom of Information – Success, failure or is the jury still out?' on 16 April.

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