Government under pressure to launch FOI review

Ministers have been urged to instigate an immediate review of freedom of information rights amid warnings that the public’s right to information is being “slowly eroded”.

The Scottish Information Commissioner Rosemary Agnew has claimed powers to extend FOI to non-public sector bodies delivering public services as a result of outsourcing have been “woefully underused”.

Since the FOI Act came into force in 2005, over 15,000 Scottish households have lost FOI rights following the transfer of local authority housing stock to housing associations.

Ministers have the power to extend FOI to third parties providing public services under Section 5 of the Act, though have only done so once to encompass bodies providing culture and leisure services on behalf of local authorities.

A review to identify where rights to access information under the FOI Act have been lost over the last decade with a view to reinstating those rights is recommended by the Commissioner.

“Rights to access information and the duty to proactively publish information have been lost since the FOI Act came into force,” says a special report laid before the Scottish Parliament by the Commissioner.

“That means people have access to less information than they did 10 years ago. Both the right to ask, and the duty to tell have disappeared in a number of areas.”

Agnew has called on government to adopt a policy ensuring FOI rights are migrated much more frequently whenever a body delivering public functions or services changes.

Ministers have also been urged to make Section 5 Orders “immediately” regarding access to information rights about social housing, administered by housing associations, as well as private prisons.

“FOI is not just about requests and enforcement,” said Agnew. “It recognises the value of publication of information proactively, in the public interest.

“It has, built into it, the mechanisms for extending the right to access information from a range of different types of organisation, and across a myriad of models of public service delivery.

“My concern is that the powers that enable this extension of the coverage of FOI have been woefully underused, and if not exercised we run the risk of eroding the impact of one of Scotland’s major success stories.”

The Scottish Government has also been urged to develop and adopt a “factor-based approach” to the extension of FOI, based on functions considered to be “of a public nature” rather than the organisation itself.