Daren FitzhenryReflections on FOI in 2021

Daren Fitzhenry, Scottish Information Commissioner

Holyrood FOI Conference Speech, 23 November 2021

"It's a pleasure to be speaking here today at this second virtual Holyrood FOI Conference and to provide you with some reflections on Freedom of Information in 2021.

"Inevitably, I begin with the Covid-19 pandemic, which has both highlighted the importance of FOI, as well as creating many challenges for FOI practice.

"Back in April of 2020, the International Conference of Information Commissioners (ICIC) issued a statement emphasising the vital importance of the public's right to access information about decisions that affect public health, civil liberties and people's prosperity. And in June of this year it again emphasised the role of openness in building public trust, and placed a particular emphasis on the importance of proactively and promptly publishing information to allow people to understand and scrutinise authorities' decisions, especially in relation to the pandemic. Looking at proactive publication, it is clear that the pushing out of information to the public was key in most governments' attempts to control and mitigate the impact of the pandemic.

"Yet despite that importance, as with so many other areas of life and public service, FOI practice and performance have not been immune from the impact of the pandemic. However, that impact has changed over time, and while 2020 - and especially spring through to summer of that year - was focused on emergency legislation, redeployment of personnel and the use of new technologies with the widespread roll out of remote working following the closure of offices; 2021 has been more focused on the new systems bedding in, essential resource being restored to FOI and largely returning to a more steady state.

"So, for example, looking at requester numbers, FOI statistics submitted by Scottish public authorities to our Statistics Portal, show that after a significant drop in spring 2020, FOI request numbers returned to and have remained at relatively normal levels. Around 69,500 requests were received in the year from April 2020 to March 2021. While that is down from 81,000 the year before, this shortfall was almost entirely due to extremely low request numbers during the first lockdown.

"In relation to FOI performance, the picture is similar. In 2020-21, 85% of responses to requests were on time, compared to 90% in the previous year, and more recent figures suggest that authorities' performance is continuing to recover. Moreover, FOI requests continue to be fruitful, with around three quarters still resulting in some or all of the information being provided.

"However, as you would expect, the picture is not uniform across all authorities, and some have been more badly impacted than others. We continue to monitor performance regularly and to intervene when required - engaging with authorities and their senior management with the focus on helping them to improve their FOI performance to the benefit of their own organisation as well as to the benefit of requesters. (Indeed, it was reassuring to hear the Minister's positive comments on the value of our interventions).

"The overall trajectory of FOI performance recovery is, however, a positive one.

"In terms of appeals to my office, we continue to experience high numbers, a trend that has now continued for a whole calendar year. Between November 2020 and October 2021, we received over 650 appeals, compared to a normal financial year's numbers of around 500. Unsurprisingly this level of demand has caused delays in our casework despite the best efforts of my team. I apologise for the delays, and we are looking at streamlining our processes and recruiting to vacant posts, but it will take time to work through the backlog.

"As we move forward and see more of a return to previous levels of FOI demand and performance, the risk is viewing that as the goal, and not taking time to look at the lessons we can learn from the various challenges the pandemic has thrown at us, as we move forward.

"To this end we are currently working on a second special report to the Scottish Parliament, looking at the impact of the pandemic, which we hope to have laid and published later this year, before the Christmas break. Its focus will be on the lessons, observations and recommendations that may be drawn from the impact of and response to the pandemic. Some of these will be of practical utility to authorities in improving their own practice, while others will be relevant to the forthcoming Scottish Government consultations on FOI.

"It is, of course, of regret that the hoped-for consultation on the Freedom of Information (Scotland) Act is not now expected to start as soon as we might have hoped. It is yet another delay in a process that began some three years ago when the Public Audit and Post-Legislative Scrutiny (PAPLS) Committee began looking at the Act. It is also surprising that the need for legislative change has not been decided, despite the PAPLS Committee's report, but I understand that the Minister may not wish to pre-empt the consultation process. However, it is reassuring to hear the Minister's commitment to the consultation process and to know that it will be taking place.

"Also, the delays in the process largely caused by the pandemic will allow us not merely to pick up where we left off with the PAPLS Committee's report, but to see what additional improvements might be made to FOI law following our consideration of issues raised by the pandemic. For example, the use of new messaging technologies and how information is recorded, retained and findable; the importance of FOI as a core function of public authorities; and an increased emphasis on the importance of proactive publication.

"It might be helpful to look at those examples in some more detail.

"New ways of working and the use of new technologies have been essential as part of the response to the pandemic and the challenges of closed offices and lockdowns, but they also create their own issues. Looking purely at a few of the systems used, authorities will hold information contained in WhatsApp or other messaging systems operated by them and their staff. MS Teams chats will also be caught by this. Authorities must know what systems are being used and have processes in place to record, retain, identify and search for any such content. Documentation of decisions has never been more important or indeed challenging in a high tempo environment, particularly (to echo the ICIC) when those decisions may have impacted on public health, civil liberties and people's prosperity. That includes decisions recorded in such messaging systems. These records are essential not only for FOI but also for any forthcoming inquiries into the response to the pandemic. As the ICIC put it: "It is essential that the basis of those decisions, the decisions themselves and the senior decision-makers involved are thoroughly documented in order for governments to remain accountable both during and after the emergency and for future generations to be able to learn from our actions."

"So, we must think about these new technologies and ways of working, consider carefully what might be held and how we will not only record, but also access and search the information contained in them.

"Looking at proactive publication, in our survey of public authorities in summer 2020 we found that the vast majority of authorities surveyed were publishing information about their Covid-19 response, and almost 40% of respondents indicated they were publishing more information, with only 9% saying they were publishing less. Interestingly, we have heard a number of FOI officers state that the pandemic had brought a welcome emphasis on publication within their authority, with the value of doing so being increasingly recognised at a senior level or existing aspirations being accelerated by necessity.

"The consideration of the publication scheme duty is, in my opinion, a key aspect of any revision of FOISA, and I hope the increased visibility of the value of good proactive publication will help ensure its place in any Bill.

"However, despite the general positive use of proactive publication, there have of course been some notable cases where information which could have been disclosed much more promptly was only released following appeals to my office. It is telling that media coverage about those cases focused as much on that refusal to provide the information as it did on the content of the information itself. I think this illustrates the extent to which the public values transparency; indeed I think that the public is coming to expect it. Public authorities need to recognise the importance of real openness and transparency, in terms of the relationship with the public and also as core values in the National Performance Framework. The pandemic has made it clearer than ever that authorities should see FOI as a core function, and not only resource it appropriately but also give it the strategic focus that it needs and deserves.

"In relation to the other part of the forthcoming review of FOI law, the proposed policy paper on further extension by way of section 5 Order, again we have an opportunity to provide input in extending the right to information, and in many ways regaining lost information rights caused by the contracting out of public functions.

"For example, the pandemic has brought into sharp focus differences in information rights as between private and local authority-run care homes. I addressed this subject in my response to the Scottish Government's 2019 consultation on extending the coverage of FOISA and look forward to contributing to further activity in this area over the coming months. Whether this be considered by way of section 5 Order, or maybe more appropriately as part of the forthcoming wide-ranging review of social care provision, for example by hard-wiring it into the design of the new system, it is important to have the discussion about extending information rights in this sensitive area.

"In the papers for today's conference it was remarked that Scotland's FOI law sits at a crossroads. I actually think that with the publication of the PAPLS report we moved beyond the crossroads, albeit the route has been rather bumpy and winding over the past two years. There is a clear appetite and indeed expectation in Scotland to develop, improve and strengthen our FOI laws. There is a clear recognition of the value of openness and transparency enabled by FOI. And our lived experience over the past two years has only served to strengthen that recognition and expectation. The devil, as always, however, is in the detail; and I am looking forward to engaging with the Scottish Government's consultations, with a view to real and positive changes to FOI law being made, and I hope that you will too."

Daren Fitzhenry
Scottish Information Commissioner


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