Carole Ewart

Section 48 of FoISA prohibits the Scottish Information Commissioner from investigating appeals about a procurator fiscal or the lord advocate, to the extent that the information requested is held by the lord advocate as head of the systems of criminal prosecution and investigation of deaths in Scotland.

The effect is that whilst people can make FoI requests to the lord advocate or Crown Office and Procurator Fiscal Service (COPFS), their right is not legally enforceable in the same way as requests to other public authorities, with both appeals to the commissioner and subsequent appeals to the Court of Session on a point of law being excluded.

There is no equivalent provision in the Freedom of Information Act 2000 (FoIA) relating to the Crown Prosecution Service (CPS) or limiting the powers of the UK ICO. The ICO investigates and issues decisions in respect of the CPS. The need for legal reform was highlighted by the Commissioner in his submissions to the Parliamentary Inquiry undertaking post legislative scrutiny of FoISA in 2019.

The inquiry report of May 2020 recommended substantial changes to FoISA prompting two current consultations on FoI rights and duties: CFoIS supports the proposals for legal reform of FoISA from Katy Clark MSP; there is a consultation from the Scottish government which reflects its 16-year-old commitment to operate “within the Freedom of Information (Scotland) Act 2002 rather than proposing significant changes to it, but adjusts the regime where it is necessary and sensible to do so”. Both consultations end on 14 March 2023. Katy Clark MSP’s consultation proposes abolition of section 48 to promote transparency, enable accountability and provide consistency in enforceable rights.

Carole Ewart, chief officer of CFoIS, said: “As the enforceable right is now 18 years old, its timely to accept the pressing need for legal reform of FoISA, ensure FoI rights are equally accessible, close legal loopholes and tighten enforcement provisions. 2023 provides the first opportunity to deliver substantial and evidenced led reform of FoISA but the public’s support is needed to make it happen. CFoIS encourages people and organisations to respond to the consultations as your right matters and your views count.”

Katy Clark MSP said: “We have a transparency deficit here in Scotland. Removing the prohibition in section 48 of FoISA – enabling appeals to the Scottish Information Commissioner – may sound like a technical change, but it is vital to ensuring scandals like this are properly addressed. That is why I have included it as a key proposal in my member’s bill, which is currently being consulted on. Under the FoI Act, the UK Information Commissioner (ICO) investigates and issues decisions on the Crown Prosecution Service. The ICO has found in favour of requestors in several cases. FoISA should also permit the Scottish Commissioner to investigate a requester’s dissatisfaction with how their information request was handled by the lord advocate, Crown Office and Procurator Fiscal Service.”