Twenty's Plenty: Freedom of Information reform, twenty years on?

Twenty years since the Freedom of Information (Scotland) Act 2002 was introduced, a consultation based on a proposed Freedom of Information Reform (Scotland) Bill has been launched (closing on 02 February 2023) following "wide consensus that reform to Freedom of Information is well overdue” (source).

This CMS Law-Now explores six key Freedom of Information reform proposals currently under consultation in Scotland.

Background

The Freedom of Information (FOI) regime in Scotland provides a statutory right of access to information held by Scottish public authorities. Just last year, Scotland’s public authorities received more than 70,000 FOI requests, and FOI appeals went up by 29% on the previous year (source). But in recent years reports, research, consultations and a Parliamentary Inquiry have identified weaknesses in the legislation which this consultation seeks to address.

The Consultation Proposals

The consultation has been launched by Katy Clark MSP and is based on a draft bill published in January this year by the Campaign for Freedom of Information in Scotland. The consultation seeks views on proposed legislative amendments to close various ‘loopholes’ in the current framework with the aim of introducing a Member’s Bill, based on the findings of the consultation, in the Scottish Parliament. According to Katy Clark, the proposed bill would “improve and promote transparency, accountability and enable scrutiny” (source).

Here are six key proposals on which the consultation seeks responses.

1. Widening the Net

At present, the FOI regime only extends to providers of publicly funded services, such as local authorities, regulators, or universities. This is inconsistent with the approach under the Environmental Information (Scotland) Regulations 2004, which can apply to private entities delivering a public function. To address this inconsistency, views are sought on widening the scope of FOI so as to catch those bodies delivering public services, services of a public nature and publicly funded services. This could include, for example, care home providers and third sector organisations.

Interestingly, there appears to be widespread support for this proposal, with opinion polling by the Scottish Information Commissioner in 2022 revealing that 80% of those surveyed believed that it was either ‘very’ or ‘extremely’ important that, for example, privately-run but publicly funded health and social care services are subject to FOI law (source).

2. Diving Deeper into the Procurement Process

While the contracting authority in a procurement process is already caught by the FOI regime, widening the scope of FOI to include publicly funded services could result in the FOI regime also applying to any successful private sector service provider. The consultation suggests that this would allow the public to better assess whether a contracting authority has met its duty to consider how the procurement process can improve the economic and social wellbeing of the authority’s area (although it may also result in higher prices to cover the private sector’s costs of compliance).

3. Creating a Freedom of Information Officer

Similar to the role of a Data Protection Officer under the data protection regime, the proposed bill will introduce a new statutory role of Freedom of Information Officer (FOI Officer) within each designated body. While creating a new FOI Officer role could be time consuming and costly, particularly within organisations which were not previously subject to the FOI regime, the aim is to ensure designated bodies have the relevant expertise to navigate and comply with the FOI regime.

4. Tackling Private Communications Channels

The use of private communications channels (PCCs), such as private messaging platforms or private email accounts, by public bodies for official business has gained significant attention in recent years. There is an argument that PCCs are covered by the definition of “information” under the existing FOI regime, however the legislation does not explicitly mention PCCs. Additionally, the consultation highlights that the use of PCCs raises security concerns and puts the preservation of decision-making records at risk.

To tackle this issue, the consultation proposes amending the legislation so that “information held” extends to personal devices if the information concerns the delivery of public authority business and recommends that all designated bodies have clear policies in place covering the use of personal devices.

5. Cracking Down on Exemptions

The existing FOI legislation contains 17 exemptions to the right to access information. Some of these exemptions (for example court orders) are absolute, meaning that once the exemption is established the information may be withheld with no further action to be taken by the public authority. Other exemptions (for example trade secrets) are qualified, meaning that once a potential exemption is established an additional test must be applied to determine whether the public interest outweighs the withholding of the information.

The proposed bill aims to (i) reduce the number of exemptions and (ii) require that all exemptions are subject to a public interest test.

6. Preventing Confidentiality Clauses

Currently, confidentiality clauses / non-disclosure agreements are used in an effort to prevent the disclosure of business information which is considered to be commercially sensitive. The consultation invites opinions on preventing the use of “inappropriate” confidentiality clauses in contracts relating to the provision of public services. What would be considered “inappropriate” is not defined.

Looking Ahead

The consultation is set to close on 02 February 2023, following which a summary of the responses and a proposal will be submitted to the Scottish Parliament. If the proposal receives the required level of support from Parliament, Katy Clark will have a right to introduce a Member’s Bill which, if successful in the three-stage legislative process, will be passed as an Act of the Scottish Parliament.

If enacted as currently envisaged, the proposed changes will affect many organisations across Scotland, particularly those in the private or third sector to which the FOI regime does not currently automatically apply. As such, it is crucial that organisations across all sectors engage with the consultation and have their say in developing the future of FOI in Scotland.