A proposal for a Freedom of Information Reform (Scotland) Bill has been submitted to the Scottish Parliament, which could substantially extend freedom of information (FOI) rights. The resultant consultation, which remains open until 2 February 2023, seeks views from stakeholders on issues including extending FOI beyond public authorities to private and third sector bodies entering into contracts which are publicly funded, or providing public services.
Since 2002, anyone requesting information from a public authority listed in the Freedom of Information (Scotland) Act 2002 (the Act) has been entitled to receive it, unless a statutory exemption applies.
However, in recent years, concerns have been expressed as to whether the Act is keeping up with the changing face of the Scottish public sector. Notably, under the current legislation, private or third sector bodies providing publicly funded services are not themselves required by the Act to provide information about these services. Further, there has been limited government use of the mechanism to designate new public authorities under the Act.
A debate in parliament on 21 June 2017 identified that further action was needed. The Public Audit and Post Legislative Scrutiny Committee consequently began to review the 2002 Act. Meantime, the Scottish Information Commissioner announced in November 2017 that he would be undertaking an intervention into the Scottish Government's FOI performance.
The Public Audit and Post Legislative Committee’s Report of May 2020 recommended a government consultation, amendment and extension of the 2002 Act.
No government consultation had yet begun by 2 November 2022, when Labour MSP Katy Clark submitted her Member’s Bill proposal. The Campaign for Freedom of Information in Scotland (CFoIS) had published its own draft bill in January 2022, intended to address the Public Audit and Post Legislative Committee’s recommendations. Ms Clark’s Bill will be shaped by the responses received in relation to the consultation on her proposal, but her proposal is clearly influenced heavily by the preceding CFoIS’ work.
Consultation on a proposed Freedom of Information Reform (Scotland) Bill
The consultation seeks comment on significant specific changes, such as requiring the appointment of a Freedom of Information Officer in each authority, or requiring that the clock should be paused when a reasonable clarification to a request is sought, to avoid extending the 20 working days allotted for an FOI response by the authority. Further, it also poses broader questions, such as whether 20 days is now an excessive response period, whether the definition of ‘information’ is wide enough to be appropriate to our digital world, and how to ensure that public information on private devices, such as mobile phone WhatsApp records, is retrieved for any relevant request.
Crucially, the consultation seeks views on extending FOI beyond public authorities to potentially all private and third sector bodies entering into contracts which are publicly funded, or providing public services. The proposal suggests that this could be kept proportionate by applying the extension only to contracts over a particular financial value. There is no proposal to create an entitlement to information about aspects of the business not related to public services.
The consultation acknowledges that whether the costs associated with compliance with FOI can be borne is a business decision that may deter organisations from tendering for contracts. With particular emphasis on care services, this proposed extension of the regime is positioned as a necessity to ensure consistent standards of transparency and accountability. The consultation highlights that “if a potential provider does not wish to be covered, they need not tender.”
Once the consultation closes on 2 February 2023, Ms Clark will resubmit the final proposal for the Bill, with a summary of the consultation responses. MSPs will have one month to notify their support for that proposal. The proposal must receive support from at least 18 other MSPs, from at least half of the political parties represented in the Parliamentary Bureau, to proceed further. Ms Clark would then have the right to introduce the Bill at any time up to June 2025. If insufficient support is secured, the proposal drops.
There is therefore an opportunity over the next three to four months for interested parties to express their views by responding to the consultation, and to engage with their own MSP, with a view to shaping the future of FOI in Scotland.