It’s 20 years since MSPs passed the Freedom of Information (Scotland) Act (FOISA), making 2022 a milestone in Scotland’s history. FOISA received Royal Assent on 28th May 2002, promoting transparency and accountability. However, a report released today finds that while significant improvements have been made in a number of areas, further work is required if FOI performance is to be raised and sustained.
Freedom of information will never cross a finishing line as campaigners, regulators and the law are constantly catching up and dealing with those authorities determined to keep information out of the public eye. The Campaign for Freedom of Information in Scotland (CFOIS) recognises there are many reasons but sometimes it remains in the interest of authorities to use FOI regulation to prevent members of the public from getting specific information.
The global drive to prevent fake news requires deliberate and progressive measures to improve the public’s access to factual information which also increases public trust and debunks at least some myths. The importance of a right was recognised in Sweden in 1766 and by the UN in 1948 which set out the right to form an opinion by receiving and imparting information and ideas in Article 19: Freedom of Opinion and Expression, of the Universal Declaration on Human Rights.
Freedom of Information is 20 years old in Scotland
2022 is a milestone in Scotland’s history of promoting transparency and accountability, marking 20 years since MSPs passed the Freedom of Information (Scotland) Act (FOISA) with Royal Assent being given on 28th May 2002. The right to request information and receive it promptly and no later than 20 working days became effective on 1st January 2005 but what made the process radical and powerful was the role of the Scottish Information Commissioner (SIC). Enforcement of the law and interpretation of the law by an independent regulator requires Scotland’s 10,000 duty bearers to take notice.
Failure to comply with SIC decisions leads to outcomes including contempt of court proceedings. Requestors are viewed as ‘right holders’ and they are active. While at the beginning of the pandemic there was an initial decrease in requests for information in Scotland there were still 78,000 access to information requests between 2020-21, making it a vital tool for the general public. It is free to complain to the SIC if the statutory timeframe for disclosure has not been met if no or only partial information is disclosed and if one of the numerous exemptions has been wrongly applied.
FOI Appeals in Scotland
The SIC is kept busy processing 626 appeals in 2020-21, with designated authorities in place to improve compliance. Most notably is the ongoing Level 3 intervention in the Scottish Government’s FoI practice, which began in 2017, and focuses on the delivery of an agreed improvement action plan.
Today, the SIC has published a report examining the Scottish Government’s handling of freedom of information (FOI) requests which has found that, while ‘significant improvements have been made in a number of areas, further work is required if FOI performance is to be raised and sustained’. Amongst the problems cited are ‘evidence of widespread failures to comply with records management requirements when handling FOI requests.’
There is also a Level 4 intervention in Aberdeenshire Council with a formal Practice Recommendation issued, requiring the council to ‘ensure all staff are trained in understanding the ‘applicant blind’ principle’ to ensure information requests are processed regardless of who the requestor is. Level 2 interventions are ongoing due to significant long-term, high rates of late responses to requests (pre-COVID) including the Scottish Ambulance Service Board, the Scottish Police Authority and the University of Edinburgh.
Despite FOI rights being operational for 17 years, authorities still need reminding of what their duties are and what practice is required. FOISA is overdue for reform and and a consensus was reached in 2017 when MSPs unanimously voted for post-legislative scrutiny.
For example, FOISA has failed to keep up with changes in how publicly funded services are being delivered and the increased role of the private and third sectors. If your relative is in a care home and you want to enforce an information request the right should follow the service and not be dependent on who the provider is.
Despite the Public Audit and Post Legislative Committee (PAPLS) Committee holding an inquiry, receiving lots of oral and written evidence and agreeing on the need for reform, the Scottish Government is failing to consult and as a result, legal change is delayed.
A Law Strengthening Enforceable FOI Rights
CFoIS has stepped into the legislative vacuum by securing funding to write a Bill supported by Explanatory Notes. Our Freedom of Information (Scotland) (No2) Bill proposes significant amendments to FoISA, such as, extending the types of bodies ‘designated’ to comply, proposing an FoI officer is an appointed lead within authorities who has the power to require compliance with the law and enforce new duties requiring pro-active publication of information.
As a result, there is now increased discussion of specific changes to FOISA and we are depending on MSPs to take forward the Bill and to hold the executive to account. It will be hugely disappointing if the efforts of the PAPLS Committee are in vain not to mention the effort civil society put into the process of sharing our experiences and opinions during the inquiry.
So what does this experience teach us as Scotland moves closer to a proposed integrated human rights Bill? First, for rights to be meaningful they need to be enforceable. Secondly, the process of asserting and enforcing rights needs to be free and easily accessible. Thirdly, there needs to be an independent regulator with extensive powers to support good practice as well as enforce the law.
Finally, people need to know about what human rights mean, realise they own them and be supported to claim them. For too many people they are conditioned to believe human rights is an elite concept that is out of reach and not for the public.
Ensuring community ownership of human rights is the way to go and FOI campaigners will be there to chart the progress by strategically using access to information rights to ensure transparency and accountability and enable informed scrutiny.
The views expressed in this article are those of the author and do not necessarily reflect the views of EachOther.