20 public bodies pressing for restrictions on public right to know

Twenty public sector bodies have urged MSPs to weaken freedom of information law by increasing charges, widening exemptions and relaxing deadlines.

Five local authorities, three NHS organisations, Police Scotland, Strathclyde Partnership for Transport, the University of Edinburgh and the Scottish Charity Regulator are among those who have made submissions to the Scottish Parliament suggesting more restrictions on the right to know.

Many public bodies complained about the alleged “misuse” of freedom of information (FoI) law by those with grievances, personal issues or commercial interests. Angus Council protested about the “occasional weaponisation of the FoI process”.

There were also 29 submissions from trade unions, politicians, academics, campaigners, journalists, Audit Scotland and others arguing for measures to strengthen FoI law. They suggested widening its application, toughening its penalties and adding a duty to record.

The Scottish Information Commissioner, Daren Fitzhenry, has defended the existing law, and put forward measures to improve it. The Scottish Government proposed “simplifying” the charging regime and better defining “vexatious” requests that could be rejected.

Scottish ministers under fire for freedom of information breaches

The Scottish Parliament’s post-legislative scrutiny committee is reviewing whether FoI law should be amended. It has published online the 55 written submissions it has received, ahead of taking verbal evidence in the autumn.

Public sector bodies said they supported the principle of FoI and the transparency benefits it brought. But then they highlighted a series of problems they had run into, saying that FoI requests were increasing as resources were cut back.

Glasgow City Council complained about a small number of applicants making a large number of “voluminous” FoI requests. It called for a review of the “vexatiousness criteria” so that more could be turned down.

The council wanted a “more meaningful” fees regime enabling them to charge more. The current system allows FoI requests to be refused if they would cost more than £600 to answer.

The council also said that many of the requests it received were from organisations seeking to “expend public resources on collating information for their private commercial gain”. It suggested changes enabling such requests to be rejected or paid for.

When question by The Ferret about its submission, Glasgow council insisted it was “supportive” of FoI law. “The council firmly rejects the assertion that reviewing these areas would weaken the legislation,” said a spokesman.

Aberdeen City Council warned that responding to FoI requests was diverting resources from other services. “Some applicants do not appear to use the process as a means accessing information they are interested in, but instead to place excessive demands on the local authority,” the council said.

East Lothian Council wanted fees increased and deadlines extended. “The burden on already stretched resources can be overwhelming,” the council said.

“Some applicants use this as a free research facility for their own personal or financial advantage e.g. journalists, solicitors, businesses and students.”

Other local authorities complaining were Comhairle Nan Eilean Siar and Angus Council. The Ferret reported in June that two associations representing senior council officials across Scotland also wanted more powers to reject FoI requests from “highly disgruntled individuals”.

Council officials push to weaken freedom of information law

NHS National Services Scotland called for changes to allow emails from staff working on high profile work to be kept secret. “The added pressure of having to worry about searching for, reviewing, redacting and disclosing related emails is extremely stressful,” it said.

NHS Greater Glasgow and Clyde and NHS Lanarkshire wanted to charge higher fees and reject more requests as “vexatious”. But they both also argued that FoI law should be extended to cover contractors who’ve built public hospitals under private finance schemes.

Police Scotland pointed out that it received more FoI requests than another other public body in Scotland. It saw the Holyrood review as “an opportunity” to start charging requesters.

“It is questionable where the public interest is in some requests – some clearly being a data gathering exercise for commercial gain, a potential research project or journalism exercise,” said Police Scotland’s submission.

“The act is being used by some applicants as an alternative to them undertaking their own research and that feels like a potential misuse.”

Police Scotland also, however, argued that FoI should be extended to private contractors that provided public services. “It would allow for greater transparency of these services,” it said.

Strathclyde Partnership for Transport, which coordinates public transport and runs the Glasgow subway, proposed relaxing the deadlines for complex FoI requests. Under the current law, public bodies have to respond within 20 working days.

“There is the potential for misuse of the legislation by certain sectors,” it said. “Some requests could be from applicants pursuing personal issues (e.g. complaints, contractual) or, indeed, unhappy with the policy outcome.”

The 20 public sector bodies calling for restrictions on the right to know

Glasgow City Council
Aberdeen City Council
East Lothian Council
Comhairle Nan Eilean Siar
Angus Council
The Society of Local Authority Lawyers and Administrators in Scotland
The Society of Local Authority Chief Executives and Senior Managers
NHS National Services Scotland
NHS Greater Glasgow and Clyde
NHS Lanarkshire
Police Scotland
Strathclyde Partnership for Transport
University of Edinburgh
Office of the Scottish Charity Regulator
Scottish Courts and Tribunals Service
Highlands and Islands Enterprise
General Teaching Council for Scotland
Scottish Legal Complaints Commission
Care Inspectorate
Loch Lomond and the Trossachs National Park Authority
source: Scottish Parliament

The University of Edinburgh stressed its commitment to transparency, but argued that the current system was not sustainable. “The unpredictability of requests and short turnaround times cause significant difficulties at times of peak demand,” it said.

It was becoming more common for individuals with a “perceived grievance” who had exhausted other complaint procedures to keep making FoI requests, the university claimed. “In other cases an applicant can pursue a personal grievance against an individual member of staff by targeting requests to cause them additional work and discomfort.”

In common with many other public bodies, the university also recognised that routinely publishing more data would help. “Under the current legislation there is limited incentive for public authorities to take a more proactive approach to publication,” it said.

The Office of the Scottish Charity Regulator (OSCR), which oversees 24,000 charities, made two submissions to the Scottish Parliament’s review. It was “concerned” about the possibility of extending FoI law to charities who might not have the resources to cope.

“We believe that a number of our requestors are making use of FoI law for their own personal benefit rather than acting in the public interest,” OSRC said. It received requests from journalists looking for stories, people “presumably” acting on behalf of commercial organisations and “serial requestors, making frivolous and vexatious requests”.

OSCR added: “We would welcome the introduction of some form of deterrent; say a form of charging, preventing individuals from misusing the act or using it for their personal benefit.”

Other public bodies who urged more restrictions on FoI requests were Scottish Courts and Tribunals Service, Highlands and Islands Enterprise, General Teaching Council for Scotland, Scottish Legal Complaints Commission and Care Inspectorate.

The Loch Lomond and the Trossachs National Park Authority accused individuals of misusing FoI. They “actively harassed public authorities, deluging them with repeated requests on the same subject”, it claimed.

There was “misuse of information by the public who are not required to state how they will use the information and choose to use the information they are given to denigrate public authorities and their staff.”

We now have proof about the lingering hostility to the public having the right to access information on key areas of public interest. Carole Ewart, Campaign for Freedom of Information In Scotland

The Campaign for Freedom of Information in Scotland argued that public authorities trying to weaken FoI were “out of step” with public opinion. They were “deliberately seeking to curtail access to information rights”, campaign convener, Carole Ewart, told The Ferret.

“We now have proof about the lingering hostility to the public having the right to access information on key areas of public interest such as health, transport, education and social care.”

Not all public bodies complained about freedom of information. Audit Scotland, which checks annual spending of £40 billion by over 220 public sector organisations, made a strong defence of FoI law.

“Openness and transparency are important principles which underpin the trust in government, governance and how public services are manage,” it said.

Audit Scotland wanted more bodies to come under FoI law. “We believe that further consideration could be given to the extension to the legislative reach of the Freedom of Information (Scotland) Act given that there are organisations using public money which are not currently subject to FoI.”

Others calling for FoI rights to be strengthened included three trade unions and three cross-party politicians. They were Unite Scotland, Unison Scotland and the National Union of Journalists, plus SNP MP Peter Grant, Labour MSP Neil Findlay and Liberal Democrat MSP Tavish Scott.

The Ferret reported in June that 40 journalists from across the Scottish media had backed a submission to Holyrood urging FoI law to be toughened. They accused government agencies of repeatedly trying to block public access to information.

Journalists call for reform to stop public agencies blocking freedom of information

The former Scottish Information Commissioner, Kevin Dunion, suggested that public bodies could be using text messaging, personal email accounts or social media apps to avoid FoI.

“Greater consideration should be given to using the provisions of section 65 which makes it an offence to block, destroy or conceal a record held by the authority,” he said.

The current commissioner, Daren Fitzhenry, defended the existing law and proposed more enforcement powers. He challenged suggestions that some FoI requests were “unworthy” because of their subject matter.

He said: “Requests which might be viewed at first as trivial, inconsequential or frivolous may in fact concern matters of public interest. It is sometimes only by asking the daft questions that matters of true public importance are revealed.”

It is sometimes only by asking the daft questions that matters of true public importance are revealed. Daren Fitzhenry, Scottish Information Commissioner

Fitzhenry told The Ferret that he was now considering the submissions made to Holyrood’s post legislative scrutiny committee. “There are some points made which we agree with, and some we don’t,” he said.

“Ultimately it’s for the committee to decide how to take matters forward, and we look forward to further debate on the issues raised to assist the committee in reaching its conclusions.”

A submission by the Scottish Government described the exemptions in FoI law as “fit for purpose”. But it accepted that there was “a lack of clarity” on what vexatious meant.

“We suggest that the committee may wish to consider whether it would improve clarity for all concerned – requesters, authorities and the commissioner – if a test for vexatiousness were specified on the face of the legislation,” it said.

The fees regime was “complex”, wasn’t use by many authorities and should be reformed, the government argued. It pointed out that under the General Data Protection Regulation public bodies couldn’t charge for responding to request unless they were “excessive, manifestly unfounded, or repeated”.

This story was published in tandem with the Sunday National.

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