Hansard

I share Donald Gorrie's view of the importance of the commissioner being independent. However, I do not for a moment believe that anything in section 45 undermines that independence.As Donald Gorrie started by talking about amendment 83, I will do the same. I was intrigued to hear that the amendment would leave a gap that common sense might be able to fill. In debates on previous sections, it has been said that we cannot always rely on common sense and that it is better to put things in statutory form.As Donald Gorrie indicated, amendment 83 would remove section 45 entirely. It is argued that, as a result of section 45, the commissioner will run the risk of committing a criminal offence if he or she discloses information in the course of his or her work. I assure the committee that, if that were the case, section 45 would not exist as drafted. Given the importance that Donald Gorrie attaches to the section and its relationship to the independence of the commission, I will explain why I believe the section to be necessary.In supervising the freedom of information regime, the commissioner and staff will of necessity acquire a great deal of information. Given that much of the work is likely to involve conducting appeals, it is reasonable to assume that much of the information will be highly sensitive and, in the public authorities' view, exempt from disclosure.As part of the commissioner's independence and ability to do the job thoroughly, it is important that information that goes beyond that which would be considered for disclosure is available to the commissioner, so that he or she can gain a full picture. It has not always been recognised that, under section 50, the commissioner can in theory require any Scottish public authority to provide any information—without limit and regardless of sensitivity—that the authority holds, if that information would support the appeal that the commissioner is conducting. In other words, the commissioner has the power to request information that goes beyond the information that the applicant seeks.It is appropriate that all information that falls within the freedom of information regime, regardless of sensitivity or of which Scottish public authority holds it, is within the reach of the commissioner. We structured the bill to allow for that because the commissioner must be able to conduct appeals properly and effectively. Equally, we had to ensure that such information is properly protected against inappropriate disclosure, which is the purpose of section 45. In that respect, the commissioner is no different from other ombudsmen and other public bodies that receive sensitive information. The Scottish Criminal Cases Review Commission regularly receives highly sensitive information, which is why section 194J of the Criminal Procedure (Scotland) Act 1995 establishes a statutory bar on the disclosure of such information, except in defined circumstances.As I said, the commissioner will be able to access all information that falls within the freedom of information regime and is held by Scottish public authorities. He or she will be in regular receipt of highly sensitive information. It is important that the bill reflects that point, which is why section 45 is necessary.Section 45 will not restrict the commissioner from fulfilling his or her functions. A major misconception about section 45 is that it precludes the commissioner from disclosing information. In fact, section 45 allows the commissioner considerable latitude in disclosing information. I will explain how the provision will work. Subsection (2) contains a list of the circumstances in which the commissioner will be deemed to have lawful authority to disclose the information in his or her possession. If the disclosure of information falls into any of those categories, it will be entirely legitimate. It is not necessary to satisfy all the categories; one is sufficient. I draw the committee's attention to paragraph (e) of subsection (2), which allows for the commissioner voluntarily to disclose information that he or she would be required to disclose if he or she received a request for it. In other words, the information would be disclosed under paragraph (e) unless an exemption applies.To put the matter plainly, section 45 prevents the commissioner only from disclosing information that is potentially exempt. That is not the end of the story, as paragraphs (a) to (d) must also be considered. If the information falls into those categories, despite the fact that it is potentially exempt, the bill will allow the commissioner to disclose it, if he or she considers that to be appropriate.From that perspective, section 45 is not restrictive. I do not accept that it will cause the commissioner difficulty. Given the sensitivity of much of the information that will come the commissioner's way, the provisions are consistent with the general presumption of openness that pervades the bill.I turn to amendment 81. It has been suggested that the commissioner would commit an offence if he or she said whether his or her office was considering an appeal or if he or she named the public authority that was involved. It has been argued that, as a result, we should relax the conditions of paragraph (c). That is neither necessary nor appropriate because, as I explained, paragraph (e) allows the commissioner to disclose information that would not be exempt. Information about whether the commissioner is considering appeals and the identity of the authority that is involved is not potentially exempt information. Therefore, under paragraph (e), such information could be disclosed. I strongly resist the suggestion that the phrase "and is necessary for" in paragraph (c) should be removed. That would mean that the commissioner could disclose information with lawful authority if the disclosure was made for the purpose of the discharge of a function under the bill. Any lawyer would explain that that would give the commissioner almost unlimited discretion to disclose information in his or her possession. In that respect, the arguments that I made for section 45 apply. As I explained, the commissioner can access all information held by Scottish public authorities regardless of its sensitivity. Section 45 is a necessary and essential balance to ensure that such information cannot be disclosed inappropriately.Amendment 82 is somewhat technical and I acknowledge the intention behind it. From detailed discussions that we have had with the Campaign for Freedom of Information, we are aware of a concern that when authorities pass information to the commissioner they will do so in confidence. The practical effect of that—and this is quite complex—is that information could then become exempt under section 36, which we debated last week. Consequently, the commissioner could not disclose that information. I certainly understand the concern. For two reasons, I do not believe that information will be passed to the commissioner in confidence. First, with a section 50 notice, the commissioner can as a matter of law require the information to be provided. As a result, the commissioner would not be required to accept the information in confidence. Secondly, the existence of section 45 should reassure authorities that it is unnecessary to seek to pass information to the commissioner in confidence. Section 45 provides authorities with a reasonable expectation that the commissioner cannot disclose information without due regard to its content and to the terms of the section.For those reasons I am not wholly persuaded of the need for amendment 82. However, the amendment would not disturb the general policy thrust and would prevent information from being unavailable solely because the authority passed the information to the commissioner in confidence. The Executive's draftsmen have advised that we should consider precisely how such a provision should be drafted. I ask Donald Gorrie not to move amendment 82 so that the Executive can lodge an equivalent amendment at stage 3 to achieve his objective.There is a misconception about section 45. The commissioner in theory can access any information held by a Scottish public authority. As a result, section 45 provides essential protection and reassurance to authorities that the commissioner will treat highly sensitive information acquired in the course of his or her work in an appropriate manner. The section is not incompatible with openness and it does not act against the commissioner's wider role—I have indicated what powers are available to the commissioner under the section.Accordingly, I ask Donald Gorrie not to press amendment 81. I am happy to commit to amending the bill to reflect the objective of amendment 82 once our draftsmen have had an opportunity to consider how it might best be expressed in the bill.