Commissioner's speech to the annual Holyrood FOI conference

13 December 2018

"It is hard to believe that a full year has passed since I was last here, in my first formal event as Scottish Information Commissioner. And what a year it has been - not just across the board politically - but also for Freedom of Information in Scotland. A few of the highlights include record numbers of requests for information (over 77,000 in  2017/18); we've seen a 19% increase in appeals to our office; we've started preparations for the extension of FOI law to Registered Social Landlords; post-legislative scrutiny of FOISA is being considered by the Scottish Parliament; and, of course, we've carried out our major (and ongoing) intervention into the Scottish Government's FOI performance.

"With all this going on there is always the risk of losing sight of the focus of all this work - people. Because it's people who are at the very heart of Freedom of Information. We all share the right to request and to receive information, and we all benefit from proactive publication. Whether we are requesters, or one of the many more who access information online published by Scotland's public authorities, and probably don't even realise that the reason the information's there because of Freedom of Information law. We are the ones who access the information and we're the ones who put it to use, and it is we who decide what to ask for and what to do with that information.

"Whether it's the individual campaigning about lack of consultation into the closure of local cancer services; the journalist running a story on defects in new schools; the politician drawing attention to the plight of babies born addicted to drugs; or the charities raising awareness of the impact of temporary accommodation on families. These are just a few recent examples of how FOI is being used to seek and achieve real and meaningful change. It's when we see the examples that FOI becomes real.

"I was inspired this year by the Bureau of Investigative Journalism's Dying Homeless project which drew attention to the concerning number of homeless people dying in the UK. 30 journalists across the UK joined forces to investigate the extent of homeless deaths in their area, feeding the results into a national database. In October the project revealed that there had been at least 449 homeless deaths across the UK in the last year, with Karin Goodwin in the Ferret reporting that there had been at least 94 such deaths, that's almost two a week, in Scotland since October last year.

"The project used FOI, among other tools, to gather its evidence. In doing so, across the UK there was found to be no single comprehensive record of the deaths of homeless people, and that coroners' offices, hospitals, councils and police had different parts of the picture. In most cases, the two sets of information (death and homelessness status) were not joined together as a single statistic. So while FOI was used to provide some data, it was also instrumental in evidencing the significant gap in and reliability of available information about the issue. The project has already led to commitments to change policy and practice in recording deaths among homeless people, and I am sure that this will change and in turn lead to action to help prevent these tragic deaths.

"So, how are my team and I keeping people at the heart of FOI so they can continue to be involved, and to raise concerns, campaign for change, and participate in the decisions which affect them?

"First we are working to improve people's knowledge of how to use their rights. While we have high awareness of the FOI Act in Scotland (our previous IPSOS Mori polling in March 2017  showed awareness levels of 85%), we are interested in looking beyond people's awareness of Freedom of Information in the round, to knowledge and understanding of their rights.

"We have already started to reach out to more people, through social media, using videos and infographics to raise awareness and make FOI more accessible.

"Everyone benefits from things being explained more clearly. Next year, we also want to hear more about people's experiences of FOI and share the learning of the benefits that FOI can bring.

"Last year I highlighted significantly lower levels of awareness of FOI in children and young people. To examine how we can improve young people's knowledge of their rights we organised a workshop at the national sitting of the Scottish Youth Parliament this year to put it on the agenda, to delve more into why this was the case, and start active discussions to engage with young people. One of today's Masterclass sessions will be looking at what children and young people need to engage in FOI. Building a stronger awareness of FOI rights amongst children and young people will mean that they have the knowledge they need to put their rights into effect whenever they are confronted by a situation where FOI may be valuable. At any point: now or in the future.

"My office is also actively taking part in Scotland's second Open Government Partnership Action Plan, particularly commitment 4 which is about improving the accountability of public services - "the citizen's journey". As this develops we will be working with the public, Scottish Government and other regulators to improve people's understanding of, and access to, complaints bodies and regulators in Scotland, and how FOI can be used by them in this process. It will identify how people would like to exercise their rights to complain, appeal or seek scrutiny of public bodies, and also identify what the barriers are, so we can start removing them.

"But being people-focussed isn't just about increasing knowledge of their rights, it's also about improving their experience when they choose to exercise those rights. That's why our work on improving authority practice is so important. As a key part of this we have increased emphasis on our use of interventions. Interventions are a proportionate and scale-able way of improving an authority's practice. It can range from a quick call to highlight an error to be fixed, all the way to a full-blown level 3 intervention. The emphasis is on identifying what has gone wrong, why it has gone wrong, and then fixing it. Wherever possible we will work with the authority to improve their practice, but we have enforcement powers if they refuse to do so. Thankfully it has not been necessary to use these this year.

"This year's major intervention with the Scottish Government, has shown the value of interventions in responding to widespread concern about FOI performance. We were able to carry out a detailed and focussed assessment of particular areas of concern following the Parliamentary Motion condemning the Scottish Government's FOI performance. Our recommendations to remedy this have been accepted in full by the Scottish Government, we have agreed an action plan with the government to implement those recommendations, and we have now entered the implementation and monitoring phase of the intervention. The work dovetails with our earlier intervention on the failure to respond on time when we saw an increase in Scottish Government performance from just 63% of cases being responded to on time to monthly figures which are now regularly over 90%. It's also not just those authorities whose practice is being improved, but others who are learning from the points and assessing their own practice: those who see an intervention happening, read the report, and see what lessons are applicable to their organisation. We'll have more on interventions later today in Masterclass B.

"The Minister mentioned the cost of FOI. Yes there is one, but this is certainly outweighed by the benefits FOI can bring. Authorities should view FOI as a core function - it is a key part of what they do, showing the people they serve how they are spending public money and providing their services, and as such it deserves appropriate resource. In addressing concerns about individuals misusing FOI, provisions, such as the "vexatious request" provision, already exist and are available to be used by authorities where justified. These provisions are there for a reason, and if a request is genuinely vexatious or excessively costly, the provisions should be used.

"We also need to work to protect and extend people's rights. In this regard we are fortunate in Scotland to have the Section 5 power for Ministers to designate new bodies as Scottish Public Authorities subject to FOI. At last year's Conference the then Minister for Parliamentary business, Mr FitzPatrick, undertook to implement an extension to FOI for registered social landlords (such as housing associations) and their subsidiaries.

"I'm clearly disappointed and more than a little frustrated that no order has been laid by now. However, the focus has to be on achieving the end state, not dwelling on what went wrong. I urge the Scottish Government to deliver on its commitment to lay an order very early in the New Year - this must not slip again to become March, April, or beyond.

"We did have the good news in September 2018, that the Scottish Government's legislative programme committed to consult on proposals to extend FOI to companies providing services on behalf of the public sector. This ties in with the 2017 International Conference of Information Commissioners' resolution that encouraged initiatives to improve access to information legislation in relation to contracted out services. My office has signed up to this commitment which accords with our long held position that there has been gradual erosion of information rights as a result of changes to the delivery of public sector functions. I am therefore looking forward to actively engaging with the consultation to increase information rights in this area.

"It is also crucially important to keep FOI legislation up to date so that it continues to meet people's needs and reflects the technological and societal changes that have taken place over the last 16 years. I am therefore very pleased that I have been asked to provide further evidence to the Scottish Parliament's public audit committee on post-legislative scrutiny of FOI law. That scrutiny is a wonderful opportunity to enhance our system and strengthen people's rights, and one I hope the Scottish Parliament will take full advantage of.

"So as I look forward to the next year, I see it again being a busy one. In these challenging political times, there has never been such a need for open government and transparency, and indeed for a focus on the people we are here to serve. Scotland could be a world leader here, on paper and, crucially, in practice. We have much to do, and we are looking forward to doing it."

Daren Fitzhenry
Scottish Information Commissioner



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