Time to deliver on promise of freedom of information

Fifteen years after enactment, the milestone law conferring a democratic right still struggles to be effective, says Carole Ewart

THE enforceable right to access information on devolved matters became effective on January 1, 2005, under the Freedom of Information (Scotland) Act (FOISA).

We now celebrate the 15th birthday of this democratic milestone in 2020 focused on the same issue as we entered the noughties – how to make this right effective.

Answers will be delivered this year by MSPS who are engaged in postlegislative scrutiny and by the Scottish Government, which is mulling over how to deliver the legislation’s purpose “to make provision for the disclosure of information held by Scottish public authorities or by persons providing services for them”.

FOI rights are to be celebrated by the public who are key to ensuring politicians agree progressive reform. For example, the latest independent polling for the Scottish Information Commissioner (2019) confirmed that 85 per cent think public bodies should publish information on how they spend their money and on how they deliver their services (79% ).

FOI requests are increasing, with 83,963 recorded in Scotland over the year 2018/2019, and this may be a good or a bad thing: greater empowerment or greater dissatisfaction with services and a need to find out what is going wrong. Either way, the right is here to stay.

Delivering on the original promise took time and remains a work in progress. The first consultation was launched in November 1999 followed by a draft Bill in March 2001.

Although FOISA was passed in 2002, a generous lead-in time was given to bodies listed for coverage – ie, designated – to prepare their systems and train their staff in their new obligations, including individual GP surgeries, local authorities, colleges and quangos.

Keeping coverage up-to-date is a persistent problem as a snail’s pace has been adopted in designating new bodies which were deliberately left out in 2002, such as RSLS (housing associations), which were added in November this year, and those bodies subsequently created in such a way as to avoid FOISA.

Despite powers under Section 5, we are still waiting for action on addressing the mixed market of service delivery so that charities, voluntary organisations, the private sector and all arms-length external organisations (Aleos) are subject to FOISA as the right should follow the spend of the public pound. If bodies don’t want to be covered that’s quite okay, as the service can remain directly delivered by the public sector, making FOI simpler to use.

Even where FOISA was designed to be flexible, such as Section 6 requiring all publicly owned companies to be automatically covered, we remain in the dark about all of their names, so the right is ineffective.

There is discussion in some quarters about merging the two regimes but that would be unwise until FOISA is legally and practically improved.

There is up-to-date evidence on practice including some bodies failing to answer requests within the statutory 20 working days and the public being unable to find out who is responsible for providing information on health and social care.

There is a feast of evidence on how it can be improved – not just in the submissions to MSPS but in the numerous reports from past and current Scottish information commissioners.

There is also a smorgasbord of international standards from which we can learn and apply, including from the European Court of Human Rights and the UN’S International Covenant on Civil and Political Rights.

A conundrum also needs to be solved in that the post-legislative scrutiny of FOISA has confirmed that senior officials in local authorities want rights reduced but it is unclear what their bosses – the elected politicians – think. We hope they oppose such views.

A huge “thank you” is due to the FOI staff who operate in more than 10,000 official bodies in Scotland who strive, everyday, to ensure our rights are upheld.

For some, the job is easy due to organisational “buy in” and good record-management systems making it easy to identify information for publication.

However, for others they must argue with bosses who want to assert one of the numerous exemptions, cajole colleagues for information who don’t have time amid a heavy workload, and FOI officers who don’t have the resources to comply, especially when the level of potential fines makes an organisation take this stance.

We salute your endeavours and hope, now that the UK Government has declared an end to austerity, you get the resources you need to make our rights effective both in answering FOI requests and in proactively publishing loads of information of the type the public wants in order to be empowered, and to deliver transparency, accountability and accessibility in compliance with inclusive communication duties.

A huge ‘thank you’ is due to the FOI staff, operating in more than 10,000 official bodies in Scotland, who strive, everyday, to ensure our rights are upheld

Carole Ewart is the Convener of the Campaign for Freedom of Information in Scotland.