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Lesley Allan

FOIL Public Sector and Blue Light SFT and Partner, Kennedys

Freedom of information reform (Scotland) bill set to enhance transparency in public services

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Freedom of information reform (Scotland) bill set to enhance transparency in public services

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The upcoming Freedom of Information Reform (Scotland) Bill seeks to extend FOI rights to private and third sector bodies providing public services

A Freedom of Information Reform (Scotland) Bill is expected to be introduced to the Scottish Parliament, aiming to significantly expand freedom of information (FOI) rights. This initiative is heavily backed by the Campaign for Freedom of Information in Scotland (CFoIS). In 2022, Katy Clark MSP proposed a Member’s Bill to reform Scotland’s FOI regime. As of January 5, 2024, the proposal gained necessary cross-party support, allowing Ms. Clark to introduce the Bill, which is anticipated to be published soon, initiating Stage One of the legislative process at Holyrood.

For over two decades, the Freedom of Information (Scotland) Act 2002 (the Act) has granted individuals the right to request information from public authorities listed in Schedule 1 of the Act. However, despite certain statutory exemptions, the list in Schedule 1 has remained largely unchanged. Although section 5 of the Act permits the addition of bodies to this list, it has only been exercised twice: in 2016 for certain independent schools and private bodies running prisons, and in 2019 for registered social landlords.

Concerns have arisen regarding the Act’s ability to keep pace with changes in service delivery within the Scottish public sector. Private or third sector bodies delivering publicly funded services are currently not obligated to respond to public information requests directly. While public authorities can require these bodies to supply information, and the public can request this information from the procuring authority, control of the process remains with the authority. There is no statutory requirement to seek information from a supplier proactively or upon request.

On the Act’s 15th anniversary, the Scottish Parliament acknowledged the need for changes. Despite this, no immediate government consultation or legislative proposal followed. A 2020 Public Audit and Post Legislative Scrutiny Committee report reiterated the need for potential reform, yet no action ensued.

In January 2022, CFoIS published a draft Bill and launched a campaign for reform. Ten months later, Ms. Clark proposed a similar Bill and initiated a consultation. The final Bill will reflect the consultation’s outcomes, but the initial proposal indicates the intended direction.

Consultation on the proposed freedom of information reform (Scotland) bill

A primary goal of the proposed Bill is to ensure that private or third sector bodies providing public services, or services funded by public money, are subject to the same FOI obligations as public authorities. The proposal seeks to apply FOI requirements to such bodies, focusing on contracts above a certain financial threshold and excluding non-public service-related business information.

This change poses risks, as these organisations currently lack FOI infrastructure, potentially leading to increased service costs. Individuals might also face difficulties knowing where to direct requests, especially if service provision changes hands. Ms. Clark acknowledges these costs and their potential impact on contract bidding but argues that the existing regime allows public funds to be used without sufficient scrutiny.

Concerns have been raised about the potential for these bodies to be targeted by numerous vexatious requests. Ms. Clark points to provisions in the existing Act that permit the refusal of such requests, though it is unclear if these could handle large volumes of slightly different requests from coordinated campaigns.

Additional changes likely to be included in the Bill are the mandatory appointment of a Freedom of Information Officer for each authority, consideration of whether the 20-day response time is too long, the adequacy of the “information” definition in the digital age, and ensuring that public information on private devices is accessible.

With a particular focus on care services, the proposed extension aims to ensure consistent transparency and accountability standards. The Scottish Government has also explored methods to improve access to contractor information, such as increased requirements for suppliers to provide information to procuring authorities, though no government reform has been proposed.

Ms. Clark's proposal required support from at least 18 MSPs, representing over half of the political parties in the Parliamentary Bureau, which she achieved without SNP or Green support. She can introduce the Bill any time before June 2025, within the current Parliamentary session.

Whether the introduced Bill will garner enough support to pass remains uncertain, but momentum is building towards the imminent extension and strengthening of FOI rights in Scotland.

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