freedom of information.co.uk

October 11th 2004

The Scottish Information Commissioner has confirmed information may be available via the Scottish Freedom of Information Act that would be blocked under the UK Act.  Speaking to freedomofinformation.co.uk, the Commissioner, Kevin Dunion, said he will be guided by the Scottish public interest, rather than the decisions of his UK counterpart.  He also emphasised that sensitive commercial information should only be withheld if its release would cause significant harm.

The statements will be welcomed by freedom of information campaigners, who fear that legal exemptions in both acts will allow officials to prevent the release of embarrassing material.  Mr Dunion told freedomofinformation.co.uk, 'My decisions may be different from those Richard Thomas [The UK Information Commissioner] arrives at and to my mind that’s a simple straightforward consequence of devolution.  I’m sure we’ll want to exchange and learn from each other, but we’re both absolutely clear that decisions are for ourselves alone and for each of us to justify.'  The UK Information Commissioner Mr Thomas has also drawn praise for his repeated assurances that 'there is no exemption for embarrassment.' 

Mr Dunion, who has a campaigning background with Friends of the Earth and Oxfam, is responsible for the enforcement of the Freedom of Information (Scotland) Act (FOISA), which comes into force on January 1st 2005.  It covers over 10,000 public authorities under the control of the Scottish Executive, while UK government departments operating in Scotland fall under the UK Act.  

Many of the exemptions in both acts require authorities to demonstrate that release of information could both cause harm and be against the public interest.  Whereas the UK Act's harm test uses the term 'prejudice', the more liberal Scottish Act uses 'substantial prejudice.'  Mr Dunion said, 'We are making it clear that ‘substantial prejudice’ to an authority or a commercial company means that there has got to be real harm, not just the theoretical possibility.  It’s got to be of significance, not just a glancing blow, or of some embarrassment.  And it’s got to happen in the relatively near future, not just at some far distant point.'  Mr Dunion refused to comment on his current investigation in to the Scottish Prison Service's withholding of some details of its contract with prison escort service Reliance Secure Task Management.

Recent research by Mr Dunion's office showed that only 30 per cent of those surveyed had definitely heard of FOISA.  The office has launched a publicity drive to raise awareness, which will include a £160,000 TV advertising campaign in January.

Read full interview with Kevin Dunion