Daren FitzhenryReflections on 2020: Information has never been more important

Daren Fitzhenry, Scottish Information Commissioner

Holyrood FOI Conference Speech

1 December 2020

2020: the year that most of us would rather forget, but which will be indelibly linked to the Covid-19 pandemic.

It has been a difficult year for many of us, and there are few who have not been touched by some degree of loss or worry, and we have all been affected by restrictions on our personal liberties that we have not seen since the last war. It has been a difficult year too for public authorities and their staff, responding to the challenge of providing services within the constraints of social distancing and remote working, while also possibly managing caring responsibilities, self-isolation, shielding and, in some cases, sickness and the loss of loved ones.

At such a time, information, and the right to seek and receive it, has never been more important. The pushing out of information to the public has been key in governments' attempts to control and mitigate the impact of the pandemic. Indeed, as noted in a paper published last week by Ben Worthy and Stefani Langehennig, "data has a real-world policy impact and, in COVID, is crucial in shaping support or scepticism, and low understanding has been linked to 'vaccine hesitance' or reduced following of guidance". In addition to proactive publication, inevitably we all have questions about the decisions being made by our governments and public services, and never more so than at a time when those decisions, sadly, may mean the difference between life and death, or impact jobs and personal liberties. This is why it is so vital that Scotland's law ensures everyone has a right to seek information from public authorities and – with only very few, limited exceptions – to receive it.

But just as the importance of the openness and transparency enabled by FOI has increased, so too has the challenge for authorities in implementing it. Although my no means uniform, the pandemic may impact on an authority's ability to respond to information requests, for example in front-line services such as health care services and local authorities, it will present a significant (direct) additional call on finite resources. At the same time, sickness and diversion of staff away from their usual duties may affect the resources available to deal with requests and reviews. And we must also recognise that following Scottish Government guidance, many office premises are closed and significant numbers of public authority workers are working from home, potentially without access to the full range of files and systems they need to allow them to respond to information requests.

And so, in the 15th year since FOISA came into force, we have seen what is arguably the greatest test of the system to date. We have seen emergency temporary changes to the law, to recognise the impact of the virus on public authorities and their ability to respond to an information request. Initially, on 7 April the legislation took the form of an extension of the maximum periods for responding to requests for information, from 20 to 60 working days, and I was given the power to find in my decisions that a Scottish public authority had not failed to comply with FOI duties if I was satisfied that the failure was due to the effect of coronavirus on that authority, and that this failure was reasonable.

However, even at that point, at the height of the crisis, when there was heightened confusion and uncertainty about the virus, its nature and impact, the key right to information remained, as did the obligation on Scottish public authorities to respond "promptly", even when maximum time limits for responses were extended. I have had to consider this point in Decision 103/2020. In that case I found that, while the review response was provided during the time where FOI timescales were extended, the authority had nevertheless failed to respond 'promptly'. I therefore found that the authority had breached section 21(1) of FOISA.

On 27 May 2020 the Coronavirus (Scotland) (No.2) Act 2020 came into force, and revoked a number of the changes that had been put in place by the previous emergency legislation, and amended others.

The law therefore currently provides, once again, that requests for information and requests for review must be responded to promptly, and in no more than 20 working days, but continues to recognise the challenges faced by public authorities by giving me the power to decide that a Scottish public authority has not failed to comply with the FOI Act by failing to respond to a request within the maximum timescale, if I am satisfied that the failure to respond on time was:

(a) due to either the effect of the coronavirus on that authority or (if applicable) the authority was acting under the 60 working day timescale when it was in force (7 April to 26 May inclusive); and

(b) was reasonable in all the circumstances, the primary consideration being the public interest in the authority responding promptly to requests.

I am sure most of you will be aware of my office's work in launching our Covid-19 Information Hub on 16 April 2020. We published both our briefing for MSPs, our new guidance on the changes to FOI law, and other resources about the operation of FOI and of our own services via the Information Hub.

We have also been working to understand in detail how FOI law, but also practice and performance have changed during the pandemic to provide insight into the impact that those changes, and the effects of the pandemic, have had on FOI to date. We are therefore preparing a Special Report on the Impact of Covid-19 on FOI: Insights and Reflections, which I anticipate will be completed before Christmas. Key to that report is a consideration of what we can learn from this experience as FOI continues to develop and how my office will use this data to guide our work moving forward.

Key preliminary findings include the observation that despite concerns that Covid-19, and specifically the increase to the maximum timescales set out in the Coronavirus Act, would have a significant impact on authorities' response times, statistics show that the majority of authorities (67% of initial responses, and 71% of review responses) kept to the 20 working day timescale for responding. Responding within 60 working days did not become 'the norm' during that period. It is clear, however, that the pandemic has had a negative impact on response times generally, and there is evidence that diversion of resource away from the FOI function was a key reason for this.

The numbers of requests for information had also significantly reduced at the start of the pandemic, with the FOI statistics returned by authorities for the quarter April-June 2020 showing that the total FOISA requests received over the quarter were lower than both the previous quarter (10,441 compared to 17,027 in Q4 of 2019/20), and the same quarter of the previous year (17,631 in Q1 of 2019/20). However, we know that this has not lasted, and numbers of requests have risen, with some authorities reporting extremely high numbers of requests later in the year.

Also, positively, most authorities proactively published information about their Covid-19 response. Most also said there was no change in the amount of information they were proactively publishing, but where there had been a change, it was towards publication of more information.

It is important to acknowledge, however, that the pandemic is far from over, and its full impact on FOI, just as in many other areas, is still unknown. Given the rise in numbers of requests for information, it is clear that diversion of resource within authorities from FOI cannot continue if good FOI performance is to be sustained, and now is the time for authorities to begin reorganising and reinstating their FOI function if it has been impacted. This was one of the key findings in my second Progress Report on the intervention to improve Scottish Government performance published on 10 September 2020.

The Progress Report considered the Scottish Government's actions and performance between 1 April 2019 and 31 May 2020, and identified significant progress towards delivering on its FOI improvement action plan up to March 2020, followed by a dramatic fall in performance as it diverted resources in response to the pandemic. Some of the areas recommended in the Scottish Government intervention for immediate attention will similarly be areas which other authorities ought to prioritise:

(i) Restoring trained FOI staff to key FOI roles

(ii) Implementing urgent improvements to ensure FOI record-keeping is robust, appropriate and effective

(iii) Ensuring that appropriate training, development and support measures are in place for staff involved in the handling of requests; and

(iv) Considering whether internal Key Performance Indicators can be introduced to return response times to pre-pandemic rates.

Of course, not everything FOI related in the past year is directly linked to the pandemic, although most things have been impacted by it. Once of the most important developments for FOI in Scotland was the publishing on 19 May 2020 of the Public Audit and Post Legislative Scrutiny Committee's report on the post legislative scrutiny of the Freedom of Information (Scotland) Act 2002. This report recognised the important benefits that FOISA has brought in terms of greater transparency and accountability of public authorities in Scotland, and made a number of recommendations for improvements in key areas, such as proactive publication, ensuring the right organisations are covered, confidentiality clauses between authorities and their contractors, and removal of the First Minister's veto.

The focus on work related to the pandemic may have delayed consideration of those issues, but there is now an important opportunity for the Scottish Government to move forward with the Committee's recommendations to improve FOI legislation in Scotland, whether that be primary or secondary legislation, to keep Scottish FOI law and practice effective and relevant to the world we live in today. As I indicated to the Committee, my team and I are ready to play our part in delivering change, and I look forward to engaging in the next part of that process.

Although of more limited direct impact to FOI, we have seen issues arise from Brexit. In the UK Withdrawal from the European Union (Continuity) (Scotland) Bill, a number of bodies, including my office, expressed concern about section 36 of the Bill which, if enacted, would have restricted access to information rights in relation to the new regulator, Environmental Standards Scotland.

Following making submissions to the Environment, Climate Change and Land Reform Committee at Stage 1, the Committee noted the concerns raised and referred the issue to the Scottish Government and requested a detailed response on this point. I am pleased to note that following discussions with the Scottish Government, a number of amendments were lodged in response to the concerns that I had submitted, and the Bill as amended now makes it clear that both FOISA and the EIRs will apply.

My final reflection is a positive one, the entering into force of the Tromso Convention today, 1 December 2020, following the Ukraine's ratification of the Treaty earlier this year. This Convention is the first binding international legal instrument to recognise a general right of access to official documents held by public authorities. The Convention is open for signature by member States of the Council of Europe and for accession by non-member States and by any international organisation. It required to be ratified by 10 Council of Europe States to allow it to come into effect, and it has effect in relation to those states which have ratified it.

The Convention sets out minimum standards to be applied in the processing of requests for access to official documents, including exemptions, charges, review procedures and complementary measures. It encourages proactive publication and has the flexibility required to allow national laws to build on it as a foundation and provide even greater access to official documents.

While the UK has not yet ratified the Convention, it is extremely encouraging to see this development of international norms relating to FOI.

So, reflecting on 2020, how has FOI coped with the greatest test of the system to date? While many authorities' performance in responding to requests and reviews has certainly been impacted, we have seen greater resilience than might have been feared, and the system is certainly holding together. For those authorities who have diverted resource away from FOI, however, now is the time to act, to replace that resource to ensure that performance is restored. My office is here to provide guidance and to assist in this, either in response to a request, or by taking intervention action. But we can also have regard to lessons learned from the pandemic when improving and developing our FOI law as we look forward to a safer and happier 2021.

Daren Fitzhenry
Scottish Information Commissioner


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