In December 2005, the Scottish Executive issued a consultation document that sought to assess the impact of the Freedom of Information (Scotland) Act 2002 ("FOI(S)A") and whether changes should be made. This consultation closed on 31 March 2006 and the Executive's response is due this summer.
Whilst the consultation welcomed comments on all aspects of the Act's first year of operation, it sought particular comments in respect of six areas: coverage of the Act; discharge of duties under FOI(S)A; fees/charging; timescales for responding to requests; prohibitions on disclosure of information and requests for information where national security issues are involved.
In relation to coverage, the FOI(S)A expressly grants power to the Scottish Ministers to bring new bodies within its scope, including bodies that do not form part of the government. The consultation specifically sought respondents' views on the operation of this power, going so far as to set out draft criteria that may be applied by Ministers. The operation of this provision is likely to have greatest impact on those bodies, such as voluntary organisations or private companies, that are involved in significant work of a public nature. For example, private companies working as contractors to public bodies, or involved in major PFI contracts, which form a sizeable proportion of the Scottish private sector, could be affected.
The fee charging regime is another key issue covered by the consultation. Experience shows that dealing with requests under FOI(S)A has resulted in significant costs for public bodies, and the consultation sought views on how any fees should be calculated. In contrast to data protection legislation, which allows a flat £10 to be charged irrespective of the cost of dealing with the request, FOI(S)A legislation does provide for a costs-based charging regime by setting out rules on exactly what can be recovered. The consultation particularly sought views on whether or not there should be specific provisions brought in to allow related requests to be treated as one. Principally this is intended to avoid public bodies being faced with onerous requests, which have been broken down to fall below the £600 threshold that allows a request to be refused on the basis of excessive cost.
Ministerial decisions flowing from the outcome of this consultation are expected some time in July of this year. It is expected that the Department for Constitutional Affairs will undertake a similar review of the English legislation in the next few months. With the Secretary of State for Constitutional Affairs, Lord Falconer, already indicating favour for a more robust charging system, it looks likely that the fee regime will be a major focus of that review.