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In November 2022, we highlighted a proposal by Katy Clark MSP for a Members’ Bill at the Scottish Parliament, seeking to substantially extend public rights of Freedom of Information (FOI). By December 2022, the Scottish Government had opened its own consultation on FOI reform.
Both consultations sought a method to achieve the “...overarching principle that information held by non-public sector bodies which relates to the delivery of public services and/or the spending of public funds should be accessible under Freedom of Information legislation”. This issue was highlighted by the Public Audit and Post Legislative Scrutiny Committee at Holyrood in a report issued at 19 May 2020 on the Freedom Of Information (Scotland) Act 2002 (FOISA02).
However, these consultations proposed different methods envisaged to reach that goal.
Summary of the consultations
Ms Clark's Bill would extend the scope of FOI to include all bodies delivering public services, services of a public nature, or publicly funded services. This would, for the first time, see third sector and private sector bodies, of all types and sizes, under a statutory obligation to respond to FOI requests.
The Scottish Government consultation, issued shortly after Ms Clark’s, asked contributors to consider the implications of extending and strengthening FOI rights by other means. These means included increasing requirements for proactive publication of information, or increasing information ingathered by public bodies already subject to FOI from third sector or private sector bodies with whom they contract. This would not increase the range of bodies directly subject to the FOI regime, but could increase the range of information channelled through those bodies currently subject to FOISA02.
Responses to the consultations
In June 2023, the Scottish Government issued an analysis of responses to its own consultation, but conceded that most of that analysis was quantitative rather than qualitative. The Scottish Government accepted that the 83 responses received constituted a group too small to be assumed to be representative of the wider Scottish population, particularly given the limited input from private sector organisations. However, within the responding group, on many key issues, opinion was very evenly split.
For example, the consultation sought views on a “gateway clause”, to bring bodies carrying out public functions or in receipt of significant public funds within the scope of FOISA02 only in relation to provision of those services or spending of such funds. 18 respondents agreed with this proposal, 24 were opposed and 23 did not know. On the question of whether SMEs should be excluded from any such “gateway clause”, 22 respondents agreed, 22 disagreed and 18 were unsure.
The Scottish Government proposes to carry out further analysis, and to provide a response before the end of the year, considering how existing legislation can be used to address respondents’ views, including through use of appropriate secondary legislation, but also considering any need to amend FOISA02.
Meantime, Katy Clark MSP has not yet published an analysis of responses to her consultation. It has been reported that Ms Clark intends to publish that, and a final draft Bill, in the next month, before seeking sufficient cross-party support to gain the right to introduce this Bill to the Scottish Parliament.
It remains to be seen if Ms Clark’s consultation, supported by the Campaign for Freedom of Information in Scotland, received more responses, or from different responders. It also remains to be seen whether views expressed in responses were very evenly divided, or how the draft Bill would be revised to address such divergences of opinion.
If the Scottish Government MSP's do not support Ms Clark’s Bill and instead favour a different approach based on analysis of their own consultation, it is questionable if Ms Clark can gain the support needed for her Bill to proceed.
We await further developments with interest.
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