"Safeguard information rights" says Commissioner in last report

News release: 10 January 2012

Today, the outgoing Scottish Information Commissioner, Kevin Dunion, will lay a Special Report before the Scottish Parliament entitled Informing the Future -The State of Freedom of Information in Scotland.(1) Afterwards he will address the Justice Committee on the measures which he believes should be taken to safeguard and strengthen rights to information in Scotland. This is the first time that a departing Parliamentary officeholder has formally made a submission to Parliament reflecting on their full term in office.(2) In his final report, the Commissioner recommends that:

  • additional bodies, such as local authority trusts, should be designated under the Freedom of Information Scotland Act
  • charges which deter requests for information should not be introduced
  • the Commissioner should be empowered to take evidence, under oath if necessary
  • timescales to bring prosecutions for the offence of destroying information after a request for it has been made should be extended.

The Commissioner concludes that, overall, the state of freedom of information in Scotland is still strong. Public awareness of FOI rights is at an all time high (3) and public authorities are generally complying with their obligations. However he warns that appeals against authorities are rising sharply, with appeals for 2011/12 projected to be 25% up on 2010/11. Increasingly, the Commissioner's decisions are finding that authorities have failed to deal with requests correctly.

The Commissioner also makes a final call for action to Ministers to use their powers to designate arm's length organisations, such as local authority trusts and private contractors, which now increasingly provide public services and facilities such as education, health, sports and leisure.

Mr Dunion said: "It is testimony to the effect of FOI that information on important matters such as public sector contracts, hospital acquired infections and school closures has not only been disclosed but proactively published. This success may be undermined if the right to information is lost when service delivery changes. It is nearly ten years since Parliament was told that powers to designate additional bodies such as local authority trusts and private contractors would be used. Disappointingly, successive administrations have failed to make good on this despite opinion polls showing that the public is strongly in favour of such action." (4)

The Commissioner rejects suggestions that FOI is a burden and points out that Scotland is in danger of falling behind other countries, including the rest of the UK, saying:

"The view that FOI is an intolerable regulatory burden on authorities turns the clock back 20 years and is not supported by evidence. Alternative measures such as codes of practice and voluntary charters have been shown not to work effectively ? often because there is no capacity for a Commissioner to enforce compliance and hear appeals. Designation is not just about extending the reach of FOISA, but safeguarding vital rights to information."

The UK Government has already made its first designation order and is consulting with nearly 400 other bodies.(5) The Commissioner's report recommends that Ministers should proceed with designation of those bodies already consulted in Scotland and a rolling review of designation be instituted to ensure rights to information keep pace with changes in the delivery of public services.

The Special Report sets out a number of other recommendations to clarify and strengthen FOISA, only one of which is being addressed by the Freedom of Information (Amendment)(Scotland) Bill which was announced by Ministers on 16 December 2011. (6)

"I believe my Special Report is particularly timely given the current consultation by the Scottish Government on a Freedom of Information (Amendment)(Scotland) Bill, and as an early contribution to the Government's intended consultation on a Transparency Agenda for Scotland in 2012."


For further information please contact the Commissioner's Media Team on 01334 464610, out of hours on 07976 511752, or email media@itspublicknowledge.info

Notes to Editors:

(1) Visit Special Report to Scottish Parliament 2012 to download a full copy of the report.

(2) Kevin Dunion was appointed as the first Scottish Information Commissioner in February 2003. In February 2008 he was reappointed for a second and final term. He will demit office at the end of February 2012.

(3) Ipsos MORI November 2011 - 80% of respondents had heard of the Freedom of Information (Scotland) Act 2002 (FOISA), compared to 76% in 2009. See Commissioner calls for FOI rights to be strengthened as survey reveals strong public support.

(4) Ipsos MORI November 2011: 88% of respondents in favour of designating leisure and cultural services trusts; 83% for designating PPP contractors building/running schools or hospitals; 82% for designating housing associations; 73% for designating private Scottish prisons.

(5) The UK Ministry of Justice (MoJ) is consulting with a number of bodies with a view to designating them under the Freedom of Information Act 2000. The MoJ has also expressed its intention to consult with over 2,000 housing associations in 2012. http://www.cfoi.org.uk/MoJ_bodiesconsulteds5FOIA.xls

(6) On 16 December 2011, Minister for Parliamentary Business, Brian Adam MSP, announced a consultation on a draft Freedom of Information (Amendment)(Scotland) Bill to strengthen and improve FOI legislation in Scotland.  The Bill comprises two technical measures including plans to amend the timescale for commencing criminal proceedings where an offence has occurred under section 65 of FOISA i.e. destruction of records which have been requested. There are also plans to introduce a Transparency Agenda for Scotland during 2012.

About the Special Report

The Commissioner's Special Report to the Scottish Parliament provides his view on the current state of FOI in Scotland, draws attention to related matters which Parliament may wish to take into account, and makes recommendations for change.  These include the following:

  • Additional bodies should be designated under FOISA to ensure rights follow the public pound.
  • Charges which deter or exclude requesters must be avoided.
  • The Commissioner should be empowered to take evidence under oath.
  • The Commissioner should have discretion over considering late submissions to his investigations by public authorities.
  • Timescales for bringing prosecutions under section 65 (offence of destroying information after a request) should be extended.
  • FOISA should be altered to expressly exclude environmental information so it can be dealt with solely under the Environmental Information (Scotland) Regulations 2004 (the EIRs).
  • Provisions relating to charging for information under publication schemes should be clarified.

Designation - the history

Section 5 of FOISA empowers Ministers to designate as a Scottish Public Authority (for the purposes of FOISA) any person which appears to Ministers to exercise functions of a public nature, or which delivers services under contract which are the function of a public authority.

Under s 43(4) of FOISA, the Commissioner may from time to time make proposals to the Scottish Ministers for the exercise by them of their functions under sections 4 and 5 of FOISA.

Why is designation important?

  • Changes in how services are delivered can make a real difference to people's legal rights to information. The examples below illustrate how this can lead to inequality and loss of rights to information ? reflecting the reality of what is happening across Scotland. Designation can remove these inequalities and restore lost rights.
  • Council tenants in South Lanarkshire, can use FOI to access information from the Council about their tenancy e.g. decisions on rent rises. In adjacent Glasgow, the council's housing stock is owned and managed by Glasgow Housing Association, which is not covered by FOISA, so no legal right to information exists.
  • Council tenants in Argyll and Bute Council lost their FOI rights when the Council's housing stock was transferred to Argyll Community Housing Association in 2006. ACHA is a Registered Social Landlord, and is not covered by FOISA.
  • Residents in East Lothian had the legal right to ask for information about their leisure services up until 2009, when they were delivered by the local authority. However in March 2009, leisure services were outsourced to a leisure trust (enjoyleisure) and these rights were lost.
  • Prisoners and families who want to access information on operational policies at HMP Barlinnie (e.g. policy on reading prisoners' mail) can access it from the Scottish Prison Service under FOISA. The same information regarding HMP Kilmarnock, a private prison, is not accessible under FOISA.
  • Many schools and hospitals are being delivered under PPP contracts, and often detailed day to day operational information is held by contractors, not the contracting public authority. In traditionally funded schools and hospitals this information would be held by the public authority. Some examples of information which might not be available from PPP schools or hospitals:
    • Minutes of a meeting of housekeeping staff to discuss failures in school cleanliness
    • Information on how school meal menus are selected or prepared
    • Cost of repairs to broken gym equipment
    • Cleaning rotas for a specific hospital ward
    • Decision to move location, date or time of a clinic

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