Freedom of information must keep pace with the society it serves

As Scottish Information Commissioner, responsible for enforcing Scotland’s freedom of information (FOI) law, I see daily evidence that the right to information provided by FOI law is effective, impactful, valued and well-used by the public.

But don’t just take my word for it: research published last week found that 1 in 10 people in the UK have made use of their FOI rights in the past, while Scottish public authority data shows that nearly 74,000 FOI requests were made in Scotland in the last year alone.  Of those, 73% led to people receiving some or all of the information they requested (while a further 10% were unsuccessful only because the public authority said they didn’t have the information asked for). Public awareness research from earlier in the year also found that fewer than 10% of Scots felt that FOI was ‘a waste of public money’.  

The press, meanwhile, regularly features examples of FOI being used by people to access information of local and personal interest, whether it be as part of campaigns to improve water quality, protect green spaces, prevent the closure of local services, monitor air quality in schools or improve local health or social care services.

There is plenty of evidence, then, that Scotland’s FOI regime is in fairly good health. However, as with any other system, FOI must keep pace with the society it serves and, as we celebrate the twentieth anniversary of the Scottish Parliament’s passing of the Freedom of Information (Scotland) Act 2002, the time is right to consider what changes are appropriate to ensure that Scotland’s FOI law is improved and remains effective into the future.

There are, fortunately, a number of opportunities on the horizon where those who feel this important public right should be strengthened and protected can have their say.

The Scottish Government has indicated that it will shortly be launching a consultation on FOI improvement, which follows on from the Scottish Parliament’s 2019 post-legislative scrutiny of FOI. It also plans to publish a separate discussion paper on the extension of FOI to other bodies (again following on from a 2019 consultation).

Meanwhile, a Private Member’s Bill consultation launched by Katy Clark MSP is currently seeking views on how FOI might be improved. Proposals include updating the legislation to more closely reflect the digital world in which we now live, including explicitly clarifying that FOI applies to official information stored on personal devices, or sent through messaging services such as WhatsApp. The consultation also proposed a significant overhaul of the FOI duty that public bodies publish information in the public interest, to align more closely with public expectations and public authority practices in the digital age.

In response to ever-shifting models of public service delivery, the proposal also includes that the definition of public authority be broadened to cover publicly-funded services, a proposal intended to ensure that the public’s right to information about the delivery of important public services is not lost or prevented through the outsourcing of key services to the private or voluntary sector.  I look forward to engaging in this discussion.

I raised concerns around this particular issue in my evidence to the Scottish Parliament’s Health, Social and Sport Committee earlier this week, where I highlighted my own concern that the proposals contained in the National Care Service (Scotland) Bill (the NCS Bill) may have the unintended effect of reducing and restricting the public’s right to information around vital care services. Should, for example, care services be outsourced by newly-created regional care boards, this may lead to a loss of information rights for users of those services and their families, while also risking regional inequalities in information access.

My evidence proposed that, instead of dealing with freedom of information as an afterthought, the Bill presented an opportunity for Parliament to consider information rights in the design and creation of the system, including the issue of whether social care providers should be brought under the scope of FOI law.

When looking at the improvement and extension of FOI law in Scotland, it is vitally important that those of us who value our FOI rights engage with these consultations to have our say and help influence how FOI in Scotland develops moving forwards. I would urge anyone who values the rights that FOI provides to ensure their voices are heard.

Daren Fitzhenry is Scottish Information Commissioner. He will be speaking at Holyrood's Freedom of Information 2022 event. Full details here