In the CFoIS draft FoI Reform Bill, a provision to delete section 48 of the Freedom of Information (Scotland) Act 2002 (FoISA) was left out since it was judged legislatively incompetent. It would have fixed an anomaly which prohibits appeals to the Scottish Information Commissioner if people are unhappy about how their information request has been dealt with by a procurator fiscal, or by the lord advocate as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Section 26 of FoISA already ensures requests which interfere with their independence are exempt as prohibited by an existing law which is Section 48(5) of the Scotland Act 1998 and the Scottish Parliament cannot modify its legal effect.

CFoIS believes that using FoISA to request information held and enforcing that right does not constitute interference with the independent system of prosecution. Exercising the human right to access information to form an opinion is protected, although not absolutely, by Articles 10 of the ECHR and 19 of the ICCPR. CFoIS accepts that it is reasonable to withhold some information through the independent commissioner upholding existing exemptions, for example under section 35 of FoISA ruling disclosure would “prejudice substantially” the administration of justice. CFoIS wants to end the blanket ban which allows the lord advocate and procurator fiscal to be the judge and jury, instead placing the onus on them to demonstrate that the requested information will impugn their independence.

Although judicial review is an option for unhappy requestors, it is not an accessible or financially viable remedy for most people in Scotland. Consequently, our human rights are negatively impacted as Sections 13 and 14 of the ECHR gives us the equal right to an effective remedy for all rights including Article 10.

The UK FoI Act permits appeals and evidence submitted to the Scottish government in 2019 by the commissioner pointed out that the ICO investigates and issues decisions on the Crown Prosecution Service. Over the last 21 years, the ICO has found in favour of the applicant in cases usually “relating to technical issues, such as failing to respond on time; refusal notices which do not comply with FOIA requirements; or excessive costs.” So, a balance can be struck between the public’s right to know and safeguarding the system of independent prosecution.

Globally, we can learn from best practice in other countries. The Centre for Law and Democracy’s rating of FoI laws is based on 61 indicators to evaluate the strength of national legal frameworks. Transparency in the independent system of prosecution is one of the tests so Scotland’s overall rating of 103 out of 150 will improve if FoISA is amended. The UN’s Sustainable Development Goal 16 requires the Scottish government to “build effective, accountable and inclusive institutions at all levels” and, despite a range of public bodies in the criminal justice system being covered by FoISA such as the Scottish Courts and Tribunals Service, this is insufficient for compliance.

A further gain of ending the blanket ban would help reassure the public whose trust in the system has taken a knock due to recent criticism prompted by the events surrounding confidential briefings to the Scottish government by the lord advocate and Crown Office on the detail and trial date of Peter Murrell.

Katy Clark MSP’s legally competent FoI Reform Bill, introduced in June 2025, does include a provision to delete s.48(a) to enable enforceable appeals to the commissioner about information requests to their office. Separating the appeals system from the original decision makers is a normal operational firewall which has worked effectively across regulators in the UK for decades, such as the ICO. Therefore, it was disappointing to read the Stage 1 Report from the Standards, Procedures and Public Appointment Committee in the last session of Parliament seeking reassurance it can be done successfully.

When the FoI Reform Bill returns to the Scottish Parliament, CFoIS looks forward to participating in an open and frank discussion with MSPs of all parties on balancing the rule of law with private professional interests and the public interest because Scotland’s 24 years old FoI law must work better to improve transparency in the justice system.

Carole Ewart is director of the Campaign for Freedom of Information in Scotland (CFoIS)