Commissioner's speech to Holyrood conference 2019







Good morning ladies and gentlemen. It's my pleasure to be part of today's discussion on post-legislative scrutiny and future-proofing the Freedom of Information (Scotland) Act 2002, or FOISA.

In discussions like this there can be a tendency to jump right in and focus solely on what's wrong with the system and what we should be doing to improve it. However, doing this can result in a loss of perspective - quite apart from selling ourselves short, if we ignore the strengths of the current system, we risk losing them in the drive to change. It's therefore important to spend time examining what works well so that when we look at the weaknesses and areas for improvement we do so in context.

Looking at the operation of our system, we see very high levels of public awareness. In our polling research conducted earlier this year, we found that awareness of the Act had increased from 85% in 2017 to 91%. When we delve a bit deeper, moving from awareness of the Act to knowledge of what this means to people in practice, 71% understand that FOI gives them a right to ask for information from public bodies, While we want to build on this, increasing knowledge of the practical effects of the Act, the level is high when compared with the UK generally, with ICO research showing a 54% awareness of the right to request information held by public organisations.

The existence of a simple, clear right to information - the right to request, and to receive information unless there is a very good reason to withhold it - has certainly helped in the achievement of such high levels of knowledge. This rights-based approach is a strong one which in and of itself largely future-proofs the ability of people to obtain information.

And we have seen the knowledge of this right translated into use, with an increase to almost 84,000 requests for information being made to Scottish public authorities in 2018/19, of which 75% resulted in full or partial disclosure of the information. So not only are we seeing increased demand for information, but also more information being provided in response to those requests. Information such as teacher and GP numbers, the extent of assaults against public sector staff, discussions surrounding referenda legislation, or the expenses of elected members to name but a few recent examples - it can be anything that matters to the requester.

Requesters using the FOI right is, however, only the tip of the iceberg. Most users of FOI probably don't even know that they are benefiting from it - these are the people who access information from the internet which has been proactively published by authorities in accordance with their publication schemes and guides to information. Preliminary findings from Dundee University's "Uncovering the Environment" project indicates what we would expect - that most people looking for information will look for it online first. Now while there is much that could be done to improve this aspect of the Act, it is important to acknowledge that FOISA, combined with the advances in internet and website use, have increased the information proactively published by public authorities, with 94% of authorities publishing their guides to information online.

So, we can see that we currently have a system which the public are aware of, which is regularly and increasingly used, providing people with information which allows them to meaningfully participate in our democratic processes, which supports the accountability of public services and which helps authorities to improve their processes and work in partnership with the communities they serve. Why then do we need to look at scrutiny of the Act at all?

Well, while it might be good, it can certainly be improved upon. The world has changed over the past 17 years - public expectation has changed, technology has changed, and the way public services are provided has changed, but the basics of the Act have not. In addition to this, our lived experience of the system has identified areas which work well, and areas which do not. We are fortunate therefore that the Public Audit and Post-legislative Scrutiny committee has agreed to look at the Act to see where it might be updated and improved. It is currently in the middle of its oral evidence phase, having previously received 58 written submissions.

Within the evidence to date there are numerous points and views which have been expressed and it is certainly beyond the ability of a 10 minute presentation to precis them. Also, I would not seek in any way to try to predict or pre-empt the Committee's consideration of the evidence before them. I'll therefore restrict myself to my top three areas where I think the law can be strengthened, very much from a regulator's perspective, before looking at ways in which we can future-proof the Act other than by changes to the primary legislation.

So, my top three:

First, I suggest updating the publication scheme duty, moving from a paper-based concept of a "publication scheme" to a focus on the actual publication of information. This could be achieved by requiring publication to be made in accordance with an enforceable code of practice. The code of practice would be updated quicker than primary legislation, allowing for the swift evolution of good practice, and the ability to keep up with technological changes. It must, however, be sufficiently flexible to cater also for people who either through choice or lack of choice do not have the ability to obtain information through the internet. We mustn't leave the most vulnerable in society behind.

Second, I would advocate a greater focus on the Commissioner's powers of intervention, providing a power to compel the attendance of witnesses and allowing for the establishment of an intervention team within the office. This recognises the way in which targeted and proportionate interventions can be efficiently and effectively used to improve wider FOI performance within an organisation, to the benefit of all requesters, rather than waiting to deal with one case at a time.

And third, I suggest that enforcement powers be made available for breaches of the Code as well as breaches of the Act. This would enable failures to follow good practice to be remedied in a legally enforceable manner rather than the current situation of issuing a practice recommendation which I have no power to enforce if it is ignored. It is likely to be of increasing importance as we move towards more regulation of non-public bodies carrying out public services.

As I indicated earlier, however, amending primary legislation is not the only way to future-proof the Act.

Our current system has the mechanisms allowing for the Ministers to attend to extend it scope by statutory instrument to allow for the creation of new public bodies and the delivery of public functions and services by non-public bodies, with sections 4 and 5 of the Act. Section 4 has been used regularly to keep Schedule 1 up to date (in 2008, 2011, 2013 and 2014).

While the section 5 power was not used for a long time, the past few years have seen a number of positive extensions of the Act, possibly linked to Section 7A's requirement for the Ministers to report to Parliament on the use , or non-use, of the power every two years. We have seen the Act extended to leisure sports and cultural trusts created by local authorities in 2013: contractors who run privately managed prisons (eg HMP Addiewell and HMP Kilmarnock), providers of secure accommodation, grant-aided schools, independent special schools and Scottish Health and Innovations Ltd in 2016; and the largest group to date, Registered Social Landlords this year. We now have a further, potentially far reaching section 5 consultation from the Scottish Ministers underway, into contracted out services. This highlights that not all future-proofing need done by primary legislation.

Moving way from legislation, we all have a part to play in future-proofing the Act - making sure that it remains relevant and practical. Within the statutory framework, we need the authorities and practitioners to push forward with their own innovations in proactive publication, moving their organisational culture to be a more open one, and streamlining their processes in dealing with requests.

Campaigners, users and regulators need to keep showing the utility of FOI - whether that be its value to individuals in enabling them to campaign for something that matters to them, or to society in supporting transparency and accountability, or to the authorities themselves in enabling greater dialogue and partnership with communities. By keeping it relevant to all three groups, we will ensure that FOI remains a key aspect of our democratic structures.

And finally, let's not forget why the Committee is looking at the Act - journalists and campaigners pressed for the system to be looked at and were able to persuade the Committee of the importance of doing so. So when one thinks of future-proofing our FOI system, we will always require strong advocates of openness and transparency. Keeping FOI and the issues surrounding it high in the public consciousness, raising concerns when they see them and constructively engaging in building solutions.

That is what will ultimately keep FOI alive and relevant.

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