I will not detain the Committee long, but the clause is important because under it the board will be able to refuse to release personal information following a freedom of information request, whereas, in contrast, public authorities that have received personal information from the board might have to release it following such a request. I think that that might require some explanation and justification.
The clause does not mean that it will always be necessary for a public authority that holds such information to release it. Depending on the information in question, there might be reasons for not releasing it that are permitted under the Freedom of Information Act 2000. For example, in certain circumstances an authority could refuse to release information that identifies a living individual. The clause will allow historical information to continue to be passed to researchers and is consistent with the Government’s commitment to openness made in the 2000 Act.
The FOI Act gives any person the right to ask for, and be given, any information held by a public authority. It also sets out, however, a number of situations in which data are to be protected from release. One of those situations, which are called “exemptions” in the Act, is when there is a legal bar to data being released. The confidentiality obligation for personal information in clause 36 provides such a bar, as we have discussed, as it legally obliges the board and its employees not to pass personal information to others except in the limited cases set out.
As such, personal information held by the board will not have to be released under the FOI Act. That will help to ensure that survey respondents have confidence that personal information passed to the board is unlikely to be released. However, that provision must be balanced against the commitments to openness made in the FOI Act and the value to researchers of historical data. Clause 37 therefore sets out that when personal information is passed by the board to other public authorities, it will not automatically be exempt from release under freedom of information simply because of the confidentiality obligation. It may, however, be exempt from release on another basis, as I have said, such as in certain circumstances if it may identify a living individual.
To that extent, the clause replicates the current situation. For example census records, which are personal information, will continue to be passed by the board to the national archives in time for release after 100 years, and the clause ensures that the archives can continue to release historical census information in accordance with the Public Records Act 1958 and freedom of information obligations.
The Information Commissioner’s view is relevant to the clause. Overall, he welcomes the fact that the Bill recognises the importance of ensuring that personal information is used only when necessary, that confidentiality is respected and that the criminal offence of illegal disclosure of personal data will help to underpin the system.
Finally, Sir John, there has been some suggestion that the Freedom of Information (Scotland) Act 2002 should be included in the clause. I am actively considering that and working with parliamentary counsel and the relevant Scottish authorities to determine what, if anything, needs to be done. I hope that the Committee will understand that should an amendment be required, I propose to table it on Report.