Freedom of information is failing - it's time for change

Just over 20 years ago, the Freedom of Information (Scotland) Act came into law. The act provided public access to information held by public authorities, compelling bodies to publish certain information and enabling members of the public to request it. Even then, the legislation was well overdue given right to such information is recognised as a substantive human right. Its implementation was one of Scottish Labour’s greatest achievements in coalition government and the principles which underpin it remain vital to this day.

I believe most people are agreed on the principle that people should have the right to full disclosure about how they’re governed and how their services are delivered in a democratic society. Individuals should be able to hold  to account those who wield political, social and economic power. 

Last year’s figures show 14 per cent of Freedom of Information (FOI) responses by Scottish bodies were issued after the 20-day statutory deadline. Journalists seeking to relay vital information to the public have found the process particularly vexing, with Daren Fitzhenry, Scotland’s Information Commissioner, stating journalists are likely to be treated differently from other members of the public by Holyrood officials.

More broadly, in May he also reported there were significant failures in record keeping and complying with procedures, as well as “systemic concerns” when it comes to monitoring requests.

It’s clear the issue isn’t just lateness and incompetence but an outright failure to apply the existing law and even act within the spirit of the law. Disclosure of information is supposed to be the default, but too often public authorities kick the can down the road or spuriously select confidentiality clauses to avoid scrutiny.

It’s one of the key reasons I’m launching a member’s bill to reform FOI and address some of the glaring and ongoing issues the public face.

My bill would strengthen the enforceable right of access to information, provide a legal duty for proactive publication and improve enforcement across the board. I also propose a new statutory role of ‘Freedom of Information Officer’ in every designated body so staff have the expertise to comply, clearly understand the process and deal with requests consistently.

However, I want to go further than that. I believe it’s past time FOI legislation kept pace with how public services are delivered in Scotland.

In many sectors, taxpayer-funded services are now delivered by private and third sector organisations. In 2018, Audit Scotland reported councils were using an estimated 130 arms-length external organisations, which have an annual spend of more than £1.3 billion. It can’t be right that unaccountable and often opaquely owned firms receive public money to make critical decisions that affect so many of us with next to no scrutiny whatsoever.

Many sectors are particularly affected by this phenomenon – most notably health and social care. This has been particularly apparent during the Covid pandemic, with thousands tragically dying in care homes. Grieving families have in many cases been unable to elicit key information because so many homes are in the private sector and entirely exempt from FOI.

In dozens of cases, these care firms are owned offshore in tax havens and profiteering on a rampant scale. Extending FOI coverage to these companies should be a no-brainer.

The Scottish Government has talked a lot about “transparency” when it comes to social reform, particularly in reference to its upcoming National Care Service bill. In truth, nothing is proposed that will address these loopholes. Newly set up “Community Health and Social Care Boards” will be subject to FOI but private providers won’t, despite the Scottish Government consulting on this very proposal only three years ago.

There are also ramifications here when it comes to equalities issues. For example, providers of disability services are overwhelmingly in the private or charity sectors, meaning a vulnerable section of the population effectively lack access to key information on decisions which affect their everyday of lives.

In terms of all these issues, the Scottish Government has had ample opportunity to come forward with its own reforms. Two years ago, Holyrood’s post-legislative scrutiny committee specifically recommended that “information held by non-public sector bodies which relates to the delivery of public services and/or the spending of public funds should be accessible under freedom of information legislation”. I believe not enough progress has been made since that report was published.

That’s why I’ve developed my bill with the assistance of the Campaign for Freedom of Information in Scotland and the support of the Scottish Trades Union Congress. This is an issue that transcends party lines, and I intend to collaborate with MSPs from across the parliament to build support.

The consultation for my member’s bill – titled the Freedom of Information Reform (Scotland) Bill – sets out the key areas needing reform. I’m inviting everyone who wants to embed a culture of openness, transparency, accountability and empowerment in Scotland to participate in the consultation, which closes on 2 February.

I’m also very happy to be speaking at Holyrood’s annual FOI conference at Cosla in Edinburgh on 29 November, which will be people relevant to people working in sectors most affected.

I look forward to hearing from organisations and members of the public about how we ensure FOI is equipped to deal with the challenges of today.  

Katy Clark is a Labour MSP for West Scotland