Warning that coronavirus bill could weaken public scrutiny

The Scottish Government’s emergency Covid-19 bill could damage Scotland’s international reputation by relaxing freedom of information (FoI) rights, the Scottish Information Commissioner has warned.

In a letter to officials released late on 31 March, the commissioner’s office expressed concerns that rolling back FoI law to cope with the pandemic could set a precedent for other countries.

FoI campaigners are alarmed at proposals to delay deadlines for public agencies to respond to FoI requests fivefold, meaning that requesters could end up waiting up to ten months.

The Scottish Greens warned against allowing “public trust in our public bodies to decline during this crisis”. The proposed delays were “simply not necessary or acceptable,” they said.

The Scottish Government insisted that the draft bill did not suspend information rights. Extensions to FoI deadlines would ensure staff were “primarily focussed on helping efforts to protect and save lives in the current health emergency”, it said.

The Coronavirus (Scotland) Bill, due to be debated in Holyrood on 1 April, gives the government new powers to tackle the Covid-19 emergency. But the legislation could make Scotland the first country in the world to delay the public’s right to know as a result of the pandemic, the commissioner’s letter said.

No changes to FoI law were included in the UK government’s coronavirus bill. However, the Scottish Government’s proposed law would extend the initial deadline for public bodies to respond to FoI requests from 20 to 60 working days, with a possible further extension of 40 working days.

Then if requesters ask for an internal review because information has not been provided, the deadline for responding to that would be similarly increased from 20 to 60 working days, with an option to extend it for another 40 working days.

Altogether that means people could end up having to wait five months for an initial response, and a further five months for an internal review before they can appeal to the information commissioner.

Erin Gray, head of public policy at the Office of the Scottish Information Commissioner (OSIC), wrote to the Scottish Government on 25 March in response to a confidential request to comment on the suggested changes. At that point the OSIC had not seen the wording of the draft legislation.

She said that initial research suggested that no other national jurisdictions had made alterations of this kind to FoI law as a result of Covid-19. “This may mean Scotland would set an international precedent with such provisions, which may in turn have an impact on perception of Scotland’s commitment to freedom of information, transparency and openness,” Gray wrote.

It was “critical to recognise the legitimate need to hold public authorities to account in such unprecedented times”, she argued. It was not OSIC’s role to oppose the legislative changes but it was “challenging” to comment “without sight of the draft provisions themselves”.

Gray urged officials to keep a provision in the current law requiring public agencies to respond “promptly” to requests. “Some public authorities will be able to respond to some information requests within the existing timescales and it would be unfair to requesters for responses to be delayed when such delay is unnecessary,” she said.

Permitting extensions should also allow the requester the right to ask public agencies and the OSIC to review whether the extension is appropriate, Gray recommended. She advised that the authority should record the reasons for the delay.

Gray called on the government to clarify how long the new FoI legislation would last. “Specific terminology and definition of ‘duration of the pandemic’ would be essential, to ensure clarity for all on when these provisions will cease, and that they will do so as quickly as possible,” she said.

Changes to FoI law would require the OSIC to prepare advice for public authorities. This would mean a “significant change” in its work investigating public appeals and applications, Gray added.

She concluded: “We would also like to re-state that while pressure on public authorities may well be substantial at this time and in the weeks and months ahead, equally the legitimate public interest in decisions made during this time is significant.”

The Campaign for Freedom of Information in Scotland (CFoIS) warned that the proposed legal changes were “excessive” and “drastically undermine” FoI rights. “We recognise we live in exceptional times, but this blanket approach is disproportionate”, the campaign’s coordinator, Carole Ewart, said.

“Right to information laws allow people to ensure government officials make good decisions even at a time of national emergency,” she added.

“The need to maintain public trust in and enable scrutiny of public services is critical in helping public services do better as well holding the government to account in real time and retrospectively.”

CFoIS warned that the government was seeking a “blank cheque” to alter the law. “The speed of the process denies proper scrutiny and informed commentary”, the group said.

“To publish a 72-page bill one day covering a wide range of topics and expecting it to be passed the next day is unreasonable. Journalists, campaign groups and the public can make this bill better if they are given the opportunity to influence.”

CFoIS claimed that FoI deadline extensions could stretch into the months before the next scheduled Scottish Parliament election in May 2021. More requests for information are made in the run-up to elections.

The group argued that the relaxed deadlines should be limited to public bodies who were “especially burdened” by Covid-19. There were over 10,000 public bodies designated under FoI law in Scotland and many would still be able to meet the current 20 day deadlines, it said.

“Requests related to the coronavirus crisis should have priority and be answered within existing deadlines and the deadline for the rest could be longer when there are good reasons for the delay,” CFoIS recommended.

The group added that public authorities tackling the pandemic should proactively publish relevant information, avoiding the need for FoI requests.

Scottish Green MSP, Andy Wightman, said that while “the resources of public bodies are stretched”, government “proposals for FoI reform in the emergency legislation go too far.”

He said: “We cannot allow public trust in our public bodies to decline during this crisis. That means allowing them to be held to account by journalists and others. Public bodies should be able to review in the normal timescale.”

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The Scottish Government stressed that Scottish public authorities were experiencing unprecedented pressures and, despite their best efforts, many were likely to miss statutory time limits for requests for information during the pandemic.

“The attention of many of these organisations is, rightly, primarily focussed on helping efforts to protect and save lives in the current health emergency,” said a government spokesperson.

“These temporary provisions in the emergency Coronavirus (Scotland) Bill do not suspend information rights but provide staff responding to requests with much needed breathing space when their focus has to be protecting the safety of Scotland’s people in the current emergency.”

The spokesperson added: “We absolutely recognise the importance of upholding information rights and the considerable public interest in the release of information at this time. It is important to note that the bill contains a ‘sunset clause’ to restore the current Freedom of Information (Scotland) Act timescales, once the Covid-19 emergency has passed.”

The letter from the Office of the Scottish Information Commissioner

This story was updated at 10.10 on 1 April 2020 to include comments from the Scottish Greens. Header image thanks to Kim Traynor.

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