by Paul Mutch, Policy Officer, 16 March 2021
The beginning of March saw the publication of the Scottish Ministers' response to the Scottish Parliament's post-legislative scrutiny of FOI. The Ministers' response sets out a range of ways in which Ministers hope to take FOI forward during the lifespan of the next Parliament; not least through plans to consult on the extension of FOI to additional organisations providing public services.
While initial progress on the extension of FOI in Scotland was slow, momentum has built considerably in recent years. 2013 saw the first extension order laid under section 5 of the FOI Act, bringing arms-length trusts providing culture and leisure services under FOI scrutiny. This was followed by a 2016 order covering, amongst others, privately managed prisons and special schools, while 2019 saw the largest extension to date, with an order bringing Scotland's registered social landlords (RSLs) and their subsidiaries under the scope of FOI from November 2019.
RSLs have just completed their first full year of being subject to FOI and, while 2020 was by no means a 'normal' year for any of us, the FOI experience of RSLs nevertheless provides some useful insight which can inform, support and perhaps even reassure organisations that may find themselves covered by FOI in future.
For example, findings from our recently-published research report, Registered Social Landlords and FOI: One Year On, suggest that:
- The gap between FOI expectations and FOI reality can be significant
Prior to designation, one of the big FOI 'unknowns' for organisations will inevitably be around the impact of requests. How many will we receive? Will we be inundated? Will extra resources be required to cope? This anticipation can be daunting, and projections of impact based on the experience of other organisations (often those with more prominent public profiles) can sometimes be unreliable.
With RSLs, for example, one projection based on the experience of local authority landlords estimated that RSLs would receive in the region of 60-90 FOI requests annually. The impact for RSLs over the first year, however, has proven to be significantly less.
60% of RSLs responding to our survey, for example, reported receiving six requests or fewer during 2020, while 95% reported 24 or fewer. Most RSLs, therefore, are receiving on average no more than two a month. The highest number reported for 2020 - by Scotland's largest housing association - was 48.
Most RSLs (81%) reported that request volumes had either stayed the same or increased only a little compared to pre-FOI volumes, mirroring responses received following previous FOI extensions in 2013 and 2016. Most RSLs (91%) also reported managing FOI within their existing staff resource.
In short, RSLs - in common with other organisations designated in previous years - have not been overwhelmed by FOI requests and are, on the whole, successfully meeting their FOI responsibilities within existing resources.
This should not, of course, be taken to mean that FOI designation has had little overall effect. While request volumes may not have changed too much, what has changed - and changed significantly - is that the people who find themselves in a situation where they need to ask for information now have a legal right to do so. Whether a person is looking for information on housing allocation, property repairs or fire safety, RSLs now have a legal obligation to respond within a fixed timescale, and can only withhold information in certain circumstances. And, importantly, the person seeking the information now has an independent right of appeal if they're unhappy with the response.
- Preparation is key
Taking appropriate steps to prepare for FOI is an important element of a successful transition. On the whole, Scotland's RSLs took an organised approach to preparations, engaging positively with guidance and training opportunities, drawing on the experience and resources of those already subject to FOI, and working pragmatically towards their designation date.
This is supported in the survey data we received. 97% of organisations that responded reported making use of our online guidance in advance of designation, while most organisations also attended in-person training events. As a result, 98% of respondents reported that they were 'prepared' to meet their duties by the implementation date, while 97% reporting that they were 'confident' in their ability to respond to requests.
- FOI supports openness and accountability
Polling carried out by Ipsos MORI in 2017 found a relationship between openness and public trust, with 77% of the Scottish public reporting that they would be more likely to trust an organisation that publishes a lot of information about it work. Our RSL survey finds RSLs in a strong position to capitalise on this, with 81% of organisations telling us they were publishing more information about their work as a result of FOI.
Our research also found evidence of positive experiences from those requesting information from RSLs. Data from our FOI statistics portal, for example, shows that most FOI requests to RSLs resulted in information being provided, with 84% of people who requested information that an RSL held receiving some or all of the information they had asked for.
While the prospect of FOI can therefore be intimidating for organisations under consideration for coverage, recent experience shows that expectations will often be different from the reality. In the words of one RSL respondent to our survey, FOI "has not been as arduous as we thought it might be".
Organisations that prepare well for FOI - i.e. that is those that engage with training, develop appropriate procedures, create template resources, train staff and have support from senior management - will generally have a far more positive experience with FOI and can, in turn, begin to capitalise on the benefits that a cultural commitment to openness, transparency and accountability will bring.