St. Andrew’s House
Edinburgh EH1 3DG
19 June 2001
As you know, we have previously expressed concerns about section 33(1) of the draft Freedom of Information (Scotland) Bill – though this is largely in line with the corresponding UK FOI provision. However, a related exemption, section 33(2)(b), appears to be more restrictive than the equivalent UK exemption, though this may just be a drafting oversight. But because this was not mentioned in our earlier submissions on the draft bill, I thought I should drop you a note about it.
Section 33(2)(b) creates a class exemption for any information held for the purpose of an “investigation being carried out to ascertain the cause of death of a person” but which is not carried out in connection with a possible prosecution. I understand that the intention is to cover reports of investigations which the Procurator Fiscal requires where there have been accidental suspicious or unexplained deaths. However, the drafting goes wider than this.
Nothing in the drafting of section 33(2)(b) appears to limit the exemption to material produced for the Procurator. It also covers investigations into to deaths not referred to the Procurator (only 13% of deaths are referred to the Procurator 1) or further investigations carried out after the Procurator’s inquiries had been completed. It also seems to cover research which involves ascertaining the actual cause of death. Studies into cot deaths, ‘economy class syndrome’, leukaemia clusters, medical errors, food poisoning outbreaks, CJD, legionnaire’s disease, deaths from industrial disease and similar matters could be caught. The UK FOI Act has no equivalent restriction.
Such information could still be obtained on public interest grounds, under section 2. However, the implication of placing it within a class exemption (according to the Executive’s consultation document) is that “information would not ordinarily be released” because disclosure “would normally result in substantial prejudice to the interest in question”.2 This cannot be right. Where there has been a death which is not the subject of potential legal proceedings, why start from the assumption that disclosure will be harmful? The onus should be on the authority resisting disclosure to show that this would cause substantial prejudice.
Perversely, the draft bill would allow people to find out about minor hazards but, make it difficult to find out about anything that could kill. Investigations into non-lethal hazards would have to be disclosed unless they would cause substantial prejudice, but research into fatal hazards would be subject to a different, less open test.
There is a separate problem with section 33(3). This exempts all information obtained from a confidential source for any of the regulatory purposes mentioned in section 34(2).
This also appears more restrictive than the equivalent UK provision. Section 30(2) of the UK Act exempts information which “relates to the obtaining of information from confidential sources” in connection with regulatory (and other kinds of) investigations. But the UK provision does not exempt the information obtained from these sources.3 That would be disclosable, subject to a prejudice test.
Section 33(3) of the Scottish bill goes well beyond this, protecting all information supplied by confidential informants, regardless of prejudice. Anything supplied by a whistleblower, witness or complainant who did not want to be identified would be exempt, even where the information could disclosed without identifying the source, exposing the individual to risk of reprisal, jeopardising a possible prosecution or interfering with the authority’s regulatory functions. In effect, the ‘substantial prejudice’ test of section 34(1)(g) would be replaced by a class exemption for most third party information. This may limit the value of the Scottish law as a means of exposing malpractice or risks to public safety.
Again, this information might be disclosed under the public interest test, but here too this is the wrong starting point.
The Executive has explained that these exemptions are intended to be “aligned with the corresponding provisions in the UK legislation”,4 to avoid difficulties in areas of cross-border cooperation. However, by extending these exemptions beyond those in the UK Act, the draft bill may undermine efforts towards harmonisation.
If it is not too late, I would appreciate it these comments could be treated as part of our response to the consultation exercise.
- 1 http://www.dundee.ac.uk/forensicmedicine/llb/deathinvestig.htm
- 2 Consultation on Draft Legislation, para 35.
- 3 During the bill’s passage, the UK minister, Lord Falconer, explained that the provision “is designed to protect the name of an informer, or something short of the name of the informer which may identify how the information has been obtained” Hansard, House of Lords, 14 Nov 2000: Column 221
- 4 An Open Scotland, para 4.14