Information law must be toughened to prevent evasion, say MSPs

A new law requiring Scottish Government meetings to be minuted to prevent any “deliberate attempt” to evade freedom of information (FoI) rules has been recommended by MSPs.

A cross-party Holyrood committee is urging reforms to make “explicit” that ministers’ private emails and social media used for public business should not be exempt from FoI law.

There should also be a new system to ensure that organisations that receive public funds to provide public services are “automatically” brought under FoI so that their operations can be publicly scrutinised, the committee said.

The Scottish Parliament’s Public Audit and Post-legislative Scrutiny Committee has been reviewing the operation of the 2002 Freedom of Information (Scotland) Act (FoISA). The committee comprises three SNP MSPs, three Labour MSPs and two Conservative MSPs.

The review follows growing concerns that key ministerial meetings went un-minuted to avoid FoI requests. Journalists accused public bodies of blocking access to information by delaying, mishandling and refusing FoI requests without good reason.

Most FoI requests appealed to the Scottish Information Commissioner because information has been refused come from members of the public. In 2018-19 three quarters of the appeals were from individuals with no identified affiliation, while seven per cent were from the media and five per cent from voluntary or campaign groups.

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

The committee’s report makes 39 recommendations and conclusions mostly aimed at strengthening FoI law. The Ferret, along with 57 other groups and individuals, gave evidence to the committee.

The report was written and agreed before the Covid-19 outbreak in Scotland. In April the Scottish Government forced through changes in emergency coronavirus legislation allowing public bodies a fivefold extension to the deadlines for responding to FoI requests.

But The Ferret has revealed that these changes now look set to be repealed in a second emergency bill to be debated by MSPs on 19 and 20 May because opposition MSPs have united against them.

The post-legislative scrutiny committee highlighted evidence of “a shift in recent years in the level of information being routinely recorded in connection with official public business.” Some were worried about the use of “unofficial channels of communication” such as private emails, texts and WhatsApp, it said.

The committee stressed the importance of documenting and recording relevant information. “It is clear that there should be no deliberate attempt to evade FoISA by failing to do so,” it said.

The committee backed the introduction of a “duty to record” information as long as it was enforceable. “There would be merit in legislation setting a requirement for certain key information to be recorded; for example, minutes of ministerial meetings or Scottish Government meetings with external organisations,” it said.

“The committee recommends that the Scottish Government consult on the type of provision that could be incorporated into legislation and how best to ensure that it would be enforceable.”

Private emails and social media used for official business are meant to be covered by FoI law. “There may be merit in the legislation being amended to make explicit what is meant by the term information,” the committee concluded.

“The committee considers that much greater emphasis needs to be given by the public sector as a whole to adequately creating information trails, such as relevant drafts, memos, emails, correspondence and minutes of meetings which show how key decisions have been reached and how public funds have been spent.”

Information law ‘insufficiently nimble’

The committee expressed concern at the “slow pace” at which new organisations have been brought into the FoI regime. A promise to include Scotland’s 160 housing associations took more than 17 years to implement.

“The current legislation is insufficiently nimble to keep pace with the changing nature of the public sector landscape. As such, the committee considers that changes need to be made to FoISA to address this,” the committee said.

“The overarching principle should be that information held by non-public sector bodies which relates to the delivery of public services and/or the spending of public funds should be accessible under freedom of information legislation.”

MSPs recommended a new legal mechanism “under which relevant elements of non-public sector bodies would automatically fall within the scope of FoISA if they fulfilled certain criteria relating to the provision of public services or functions and/or receipt of significant public funds.”

The committee also urged the outlawing of “confidentiality clauses” between public authorities and private contractors providing public services which prevent access to information.

The committee highlighted criticism of some bodies for failing to systematically publish information. “There needs to be a significant cultural shift in the way in which public authorities approach proactive publication,” it said.

“The committee recognises that, in the short term, the development of a coherent system of proactive publication may require an initial increase in resources, but notes the significant benefits in the longer-term, including increasing public trust in public authorities, but also in reducing the number of requests.”

The committee added: “There needs to be a fundamental shift in the way in which FoI is viewed in many public bodies. In essence, public sector bodies need to view FoI as an essential element of public service provision and ensure that it is resourced accordingly.

“The committee recommends that the Scottish Government consults on the legislative changes proposed in this report and works with the Scottish Information Commissioner and public authorities across Scotland, as appropriate, to address the areas where implementation of the act could be strengthened.”

The committee’s acting convener, Labour MSP Anas Sarwar MSP, stressed that trying to evade FoI law was unacceptable. “Legislation must be robust, clear and enforceable,” he said.

“We are absolutely clear that there should be no deliberate attempt to evade FoISA. Consideration should also be given to amending the legislation to make explicit that tools such as WhatsApp, texts and ministerial private email accounts are covered by FoISA.”

He added: “We’re also concerned at the slow pace by which organisations have been designated under the act.

“The committee fully recognises the current pressures placed on public services amidst the global pandemic but FoI remains important, even during these trying times. We will consider the impact of amendments made to FoISA as part of the coronavirus emergency legislation in due course.”

Relief as opposition parties move to restore information rights

The report from MSPs was welcomed by the Campaign for Freedom of Information in Scotland (CFoIS). “We are relieved at the detail and conclusions in what has been a long haul in trying to change law and improve practice in Scotland,” said the campaign’s convener, Carole Ewart.

“CFoIS has consistently said that people won’t have to submit FoI requests if the information they need is already available, especially online. We have argued that publicly funded services need to be put on an equal footing so that they are all covered by FoI law rather than the inconsistent approach we have currently.”

Ewart wanted the law to be changed so that FoI rights were not forfeited when new organisations were set up by public bodies. “CFoIS is also pleased to see recommendations on the importance of record keeping, the necessity of ensuring correspondence by social media is properly captured for future disclosure and the essential nature of record keeping and record management,” she added.

The campaign, in association the trade union, Unison Scotland, published proposed amendments to FoISA in January 2020. “We hope legislation can change and practice improve in short order,” she told The Ferret.

The Scottish Information Commissioner, Daren Fitzhenry, promised to consider the committee’s report. “Since its introduction, the Freedom of Information (Scotland) Act has empowered people to seek information on topics which matter to them, has enabled people to engage meaningfully with decision makers, and has provided a clear route via which to challenge nondisclosure,” he said.

“As I noted in my evidence to the committee last year, there are a number of ways I believe the legislation can be further strengthened, and I look forward to reviewing the committee’s report and seeing how its recommendations may be implemented.”

A Scottish Government spokesperson said: “Ministers have co-operated fully with the Public Audit and Post-legislative Scrutiny Committee during its scrutiny of FoISA. We will consider its recommendations carefully and set out our response in due course.”

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