FOI laws have failed to keep pace with public services, say MSPs

A Holyrood inquiry into freedom of information (FOI) laws has found they have failed to keep pace with public services.

The Public Audit and Post-legislative Scrutiny Committee published a report today following an investigation into the Freedom of Information (Scotland) Act (FOISA).

In the report – which was agreed before the length of time for information to be released was increased from 20 to 60 working days in the Coronavirus (Scotland) Act – members of the committee say the divide between the public and private sector has become blurred.

As a result, private firms who are in receipt of public funds or are providing public services are not covered by the Act, which allows members of the public, journalists and politicians to apply for information.

The committee recommended the Scottish Government looks at introducing a “gateway clause” to automatically include companies and groups receiving public money or providing a service within the remit of the Act, allowing information on the spending of the funds and the provision of services to be accessed by the public.

The report also said the committee is interested in a “factors-based approach”, which would include the expansion of the law subject to testing.

This could be based on “the extent to which an organisation is delivering (or supporting the delivery of) a public function, the degree of public interest in relation to the function/service being delivered and the cost to the public purse in delivering the function or service”.

The report also said the Act should be amended to ensure public bodies and private contractors are unable to rely on confidentiality agreements to keep information out of the public domain.

Committee convener Anas Sarwar said: “Consideration should also be given to amending the legislation to make explicit that tools such as WhatsApp, texts and ministerial private email accounts are covered by FOISA.”