In context: Freedom of information reform

"In January, it will be 15 years since the law came into effect, and it’s time to look at whether it’s still fit for the modern world" the information commissioner has said

What's it all about?

Freedom of information law in Scotland is being reviewed. 

A Scottish Government consultation on the need to extend the Freedom of Information (Scotland) Act 2002 (FOISA) to cover a wider range of bodies involved in providing services on behalf of the public sector closed last Friday.

Meanwhile, the Scottish Parliament’s Public Audit and Post-legislative Scrutiny Committee has, since March 2019, been looking into the effectiveness of FOISA. The committee has taken evidence from journalists, campaigners and the public on the scope of the law and the compliance of public authorities with it, with a view to improving the act to increase transparency in public services. 

The decision to re-examine FOISA came after journalists and campaigners highlighted frequent failings on the part of public authorities to meet the statutory requirements of the act, as well as instances of apparent mishandling of information requests by the Scottish Government. 

There are also concerns about record-keeping practices and the ability of public authorities to meet increasing demand with existing resources.

In January, it will be 15 years since the law came into effect, and it’s time to look at whether it’s still fit for the modern world. It is easy to take the availability of information for granted, but such openness was not the norm prior to 2005 and it is not the norm elsewhere. 

- The Scottish Information Commissioner 

How does it currently work?

The act came into force in 2005 and is enforced by the Scottish Information Commissioner. Under FOISA, any person who requests information from a public authority is entitled to be given that information. 

The law applies to recorded information, that is, information that is stored in some way, whether physically or digitally.

There are some limitations on what type of and how much information can be released on request, including certain exemptions and a cost threshold.

FOISA also puts a duty on public authorities to proactively publish information that is of public interest.

The Scottish Government has made three extensions to FOISA, most recently to cover registered social landlords, which came into force on 11 November.

What are the problems?

According to the Information Commissioner’s annual report, published in October, public authorities are receiving a record number of information requests. Almost 84,000 requests were submitted in 2018/19, something the commissioner has welcomed. 

But the report also highlighted “concerning” trends, such as the increasing number of failures to respond to requests within the statutory 20 working-day period. The research also highlighted “disappointing levels of confidence” among the public on authorities’ ability to respond on time. 

An increase in the number of appeals made to the commissioner was also seen from requesters unhappy with the response they received from authorities. In over three-quarters of those cases, the commissioner ruled in favour of the requesters, leading to the release of information.

In 2017 the commissioner launched an investigation after journalists highlighted repeated examples of Scottish Government departments treating journalists’ requests improperly. The issue was twice debated in parliament, and a motion was agreed to launch an inquiry, which lead to the Public Audit and Post-legislative Scrutiny Committee review this year. 

More recently, controversy over the First Minister’s use of non-government email accounts to conduct items of government business and her office’s practice of destroying hand-written notes has forced the First Minister and Permanent Secretary to reaffirm a commitment to FOISA good practice.

by Rebecca McQuillan

In context: the circular economy

FOISA in numbers: 

• 83,963 – The number of information requests made to public authorities in Scotland in 2018/19

• 10.3% of these requests were for environmental information

• 75% of requests to public authorities resulted in full or partial disclosure of information to the requester

• 0.7% of total requests to Scottish public bodies were appealed to the commissioner

• 560 appeals to the commissioner, a 10 per cent increase on 507 in the previous year

• 21% of the commissioner’s decisions were about environmental information

• 64% of appeals followed requests made to local, or central government

• 64% of the commissioner’s decisions found wholly or partially in favour of the requester

• 26% of valid appeals to the commissioner were about an authority’s failure to respond to requests

• 75% of appeals to the commissioner were made by members of the public
  
  - The Scottish Information Commissioner's annual report 2019

How could it be improved?

While journalists are in favour of reforming FOISA to broaden its coverage and make it easier to enforce compliance, some public authorities have expressed a desire to relax the laws. 

Two groups representing local council leaders – SOLAR (Society of Local Authority Lawyers and Administrators in Scotland) and SOLACE (the Society of Local Authority Chief Executives and Senior Managers) submitted written evidence to the committee’s enquiry. 

The organisations said that there was a “downside” to FOISA, specifically, the “resource implications” of an increasing number of requests and the “misuse” of laws by commercial actors and “disgruntled individuals”.

They recommended lowering the cost threshold and making it easier to class requests as “vexatious”, therefore making them easier to reject.

The Information Commissioner, in his evidence to the committee, expressed a different view, writing: “to allow authorities to refuse a request on the basis that it is not sufficiently serious would be a major retrograde step... It is sometimes only by asking the ‘daft questions’ that matters of true public importance are revealed.”

Pressure on public authorities could be alleviated, some argue, simply by publishing more without being asked.

The commissioner recommended reforming the act to introduce a “statutory duty to publish information, supported by a new legally enforceable Code of Practice on Publication”.

The First Minister’s veto power should also be removed, because it is “contrary to the fundamental principles” of FOISA, the commissioner said.

But while strengthening the laws could lead to greater transparency, it has been stressed by many expert witnesses that the biggest improvements would come from a culture of good practice within public authorities.

The issue of freedom of information reform will be scrutinised in detail at Holyrood's annual Freedom of Information conference on Tuesday 26 November 2019.