FoI: rights needing a new law

The Campaign for Freedom of Information in Scotland (“CFoIS”) believes robust legal rights can only be delivered by amending the Freedom of Information (Scotland) Act 2002 (“FoISA”). It has therefore published a draft Freedom of Information (Scotland) (No 2) Bill along with a policy memorandum, explanatory notes, financial memorandum and statement on legislative competence.

Consultation on the draft is open until 24 April, which coincides with the 20th anniversary of the Scottish Parliament passing FoISA. The focus will now be on the pace as well as the detail of reform.

Comprising 21 sections, the bill is grounded in the consultation and inquiry led by the then Public Audit & Post-legislative Scrutiny Committee (“PAPLS”) of the Scottish Parliament. The process began in 2018 and concluded with a thorough report, published in May 2020, which recommended legal reform.

The catalyst for the inquiry was MSPs unanimously voting for post-legislative scrutiny of FoISA in 2017. This year is an opportunity to break the cycle of prevarication. Central to the debate is whether voluntary measures, policy initiatives and fine words will do, or whether the strategy is to strengthen enforceable rights and duties and define more precisely the consequences for failure to comply. While the Scottish Government’s participation in the voluntary Open Government Partnership initiative is welcome, it cannot replace a robust and enforceable FoI law.

Why reform is needed

FoISA is and remains part of the delivery vehicle for the founding principles of the Scottish Parliament, which were to be “open, accessible and accountable”. However, we need an updated law with loopholes being closed, as well as increased proactive publication of information of the type people want.

Two years ago, CFoIS published a report which identified that over half of FoISA’s 76 sections and four schedules needed to be reviewed, and four months later the PAPLS evidenced over 40 areas for reform. However there is still no consultation from the Scottish Government, which has stated that it will consult on “if” rather than “how” FoISA should be reformed.

The inbuilt agility of FoISA is another reason for urgent reform. Section 5 is designed to enable the number and type of bodies covered to be extended through a process of periodic “designation”, but has been woefully underused. For example, despite promises in 2002 that registered social landlords would be covered, it took until 2019 for delivery. A confused and inconsistent approach to designation has developed, with the onus on Scottish ministers to initiate the process.

Given the diversification in the delivery agents of publicly funded services, there has been a systematic erosion of enforceable FoI rights because the s 5 power has not been used. This was identified as a problem in the 2015 report of the Scottish Information Commissioner (“SIC”), FOI 10 years on: Are the right organisations covered? It was also raised by Audit Scotland in its written submission to the PAPLS inquiry.

The SIC’s 2015 report warned that immediate steps must be taken to protect FoI rights from the damage caused by the outsourcing of important public services. Little progress has been made. For example, the 2019 consultation on extending FoISA to care homes run by the private sector has not been progressed, despite the urgency of the situation as exposed by the high level of deaths in Scottish care homes during the pandemic. All care homes are subject to public regulation by the Care Commission, so meet the designation rules. As the Scottish Government points out, “Care services aren’t allowed to operate unless they’re registered with the Care Inspectorate.” It is useful to note that SIC polling in 2019 reported that 80% of survey respondents agreed that private sector companies working on contracts for public bodies should be subject to the same FoI laws as public bodies.

The draft bill therefore sets out a much broader set of criteria to capture those delivering public services and services of a public nature, which are consistent with the law on access to environmental information and the Human Rights Act 1998.

Need to build trust

Scotland will soon set up a National Care Service, and providers will come from the private and third sector too. The designation of all providers of social care is therefore a matter to be addressed now, to ensure there are consistent standards of transparency and accountability regardless of who delivers the service. (CFoIS has a published submission: see its news for November 2021.) If a potential provider does not wish to be covered, they need not tender.

Concerns about the unwillingness of third sector organisations to be covered by FoISA may be overstated. There is a bigger picture. Openness builds public trust, and grant income, and OSCR promotes the need for openness and transparency. An organisation’s designation under FoISA should be regarded as an asset rather than a liability.

The repeated delays in legislative reform may create a tension between parliamentary sovereignty and Government power. The PAPLS Committee inquiry report, from a cross-party group of MSPs, provided conclusions that were unequivocal: “There is a broad consensus that FoISA has brought significant benefits… However, witnesses have identified a number of areas for improvement, both in terms of the legislation itself and in its implementation.”

Unlike some legal controversies, this is a mainstream issue as so many people in Scotland have used their FoI rights since they became fully operational on 1 January 2005. The public’s affinity with the legal right is also evidenced in independent polling for the SIC: in 2017 94% agreed it was important for the public to access information, and 77% would be more likely to trust an authority that published a lot of information about its work. The public’s right to know has proven to be effective on everyday issues such as public safety, hygiene in restaurants and housing provision, and helps prevent fraud, corruption and maladministration.

Matching standards

The bill’s reforms are designed to match UNESCO’s call to build back strong institutions for the public good and sustainable development, as well as to understand the right to information as a tool to deliver all our human rights. One of the sections which will make the biggest impact is the appointment of a freedom of information officer within each designated authority. This replicates the approach in the Public Records (Scotland) Act, the UK’s Data Protection Act and the EU’s General Data Protection Regulation (GDPR). This important line of accountability, independent scrutiny and internal enforcement will change culture and practice in some designated authorities and marks an acknowledgment of the importance of FoISA within organisations and the need to manage risk in terms of legal compliance and public reputation.

CFoIS is not a lone voice on the issues. The SIC published a special report in January – FOI during and after the Covid-19 pandemic – which “analyses key impacts across 2020 and 2021 and reflects on lessons to learn to strengthen FoI practice, performance and culture”.

Despite all the evidence and support, the Scottish Government is still not persuaded that legal reform of FoISA is necessary. Drafting the bill was, therefore, prompted by legislative inactivity.

It is important to emphasise that the CFoIS bill contains a detailed set of proposals, so a lot of the work is done and ready for Parliament to exercise its powers. CFoIS is keen to work with a cross-party coalition of MSPs and with the Scottish Government to expedite reforms. Specifically, we have agreed to meet with two MSPs to discuss building parliamentary support, and are encouraging supporters to join our “bill coalition”.

Civil society role

The CFoIS initiative also reveals the important role played by civil society organisations, a role acknowledged by the UN as we comply with the standards of “human rights defenders”.

Our experiences resonate with a recent survey of campaigners and activists, carried out by the Sheila McKechnie Foundation. It found that the sector was “exhausted”, due to a “growing range of barriers” that ranged from a lack of funding to a challenging campaigning environment.

Its CEO said: “We need to make sure campaigners have the resources and support they need to keep going.

“Without that support, opportunities are lost, and people’s energy, determination and even hope begin to dissipate.

“If organisations and donors want to create change that really sticks, they must be willing to fund efforts that shift the system – from the grassroots strength of movement and community building to the convening and knowledge-gathering power of established charities.”

Let’s make the legislative change needed to FoI rights and duties, and acknowledge the importance of civil society in evidencing need and informing reform in Scotland.

• The bill and explanatory notes can be accessed at www.cfois.scot. CFoIS is a Scottish charitable incorporated organisation (SCIO), number SC051263. To support the work of CFoIS and support its current fundraising appeal, please go to the CFoIS website (e: info@cfois.scot; Twitter: @CFoIScot).

The bill and explanatory notes can be accessed at CFoIS is a Scottish charitable incorporated organisation (SCIO), number SC051263.

To support the work of CFoIS and support its current fundraising appeal, please go to the CFoIS website (e: info@cfois.scot; Twitter: @CFoIScot).