by Paul Mutch, Policy Officer, 8 March 2022
2022 looks set to be an exciting year for freedom of information (FOI). The Scottish Government is due to launch a consultation on changes to FOI in the coming months (following on from the Scottish Parliament's post-legislative scrutiny of the FOI Act), and is also preparing a paper to inform next steps on the extension of FOI to cover more organisations that provide public services.
But the work being done to bring changes to FOI in Scotland doesn't end there. Last month saw the Campaign for FOI in Scotland publish its own draft Bill to amend Scotland's FOI Act.
The Campaign's draft FOI Amendment Bill proposes a total of 21 changes to the FOI Act, covering a wide range of issues and areas. These include:
- Making all exemptions subject to a public interest test
- Expanding the definition of Scottish public authority to cover more organisations
- Replacing the FOI publication scheme duty with a statutory duty to publish, supported by an enforceable Code of Practice
- Creating a statutory "FOI Officer" role within Scottish public authorities
- Removing the requirement to provide a name and address when requesting information
- Removing the First Minister's ability to "veto" the Commissioner's decisions in certain circumstances.
The Campaign's proposals were introduced and explored at an online meeting of the Scottish Public Information Forum on 28 February, with the Campaign setting out that the development of the Bill had been driven, in part, by the slow pace of reform to date.
Scottish Information Commissioner Daren Fitzhenry was invited to give his initial thoughts on the Campaign's draft Bill. In response, the Commissioner welcomed the opportunity the Bill creates to examine and discuss a tangible set of proposals on how FOI in Scotland might be improved.
The Commissioner expressed support for a number of the measures in the draft Bill, many of which reflected his own submissions to the post-legislative scrutiny committee. These included the proposed changes to the duty to publish; the removal of the First Minister's veto powers, and the proposals to allow appeals to the Commissioner in relation to the FOI responses of Procurators Fiscal and the Lord Advocate (which are currently excluded in many circumstances).
The Commissioner also welcomed discussions around the introduction of a requirement for authorities to have a statutory FOI Officer, a development which, he noted, would have the effect of professionalising the FOI Officer role and elevating the status of FOI within organisations.
He also felt that other areas of the Bill may benefit from further discussion and refinement. He noted, for example, that the introduction of a right to make anonymous requests could lead to practical challenges in other areas, for example in determining whether a request was vexatious, whether an individual's own personal data was covered by a request, or, indeed, whether an FOI appeal could legally be taken forward.
Nevertheless, the Commissioner welcomed the conversation that the draft Bill would initiate, noting that its objective was shared by all those involved in FOI - to develop and enhance Scotland's FOI regime to ensure it works as effectively as possible for everyone.
The meeting also featured suggestions for FOI reform from a number of other participants, including proposals for changes to the FOI appeal process, a suggestion of direct penalties for bodies that fail to comply with FOI timescales, and calls to ensure that services provided through the new National Care Service are fully covered by FOI law.
In response to the latter point, the Commissioner noted that he had stressed the importance of FOI designation in his response to the recent National Care Service consultation, but was disappointed to see that this issue did not feature directly in the subsequent analysis produced by the Scottish Government.
The meeting also heard from two MSPs: Scottish Labour's Katy Clark, and Willie Rennie from the Scottish Liberal Democrats. Both spoke in favour of FOI reform, while also discussing some of the challenges associated with progressing a non-Government Bill through the Scottish Parliament.
Officials from the Scottish Government's FOI Unit explained that their own consultation was currently in active development, having been delayed as a result of the organisational disruption arising from the pandemic response. While a precise timeline for publication could not be provided, officials said they were working to ensure all relevant issues raised through post-legislative scrutiny were appropriately considered as part of the consultation.
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