Scottish ministers are facing growing criticism for failing to toughen and extend freedom of information (FoI) law after a parliamentary review almost two years ago.
The Scottish Information Commissioner, Daren Fitzhenry, told The Ferret that the lack of progress was “disappointing”. FoI campaigners have drafted their own bill and called on ministers to “stop stalling”.
Opposition MSPs argued that FoI reform was “long overdue” and criticised ministers for “kicking it into the long grass”. The Scottish Government often failed to apply the existing law, they claimed.
The Scottish Government said its plans had been adjusted because of the Covid-19 pandemic. It insisted, however, that there was “no lack of action” and promised a public consultation on “possible future legislative change”.
In May 2020 Holyrood’s post-legislative scrutiny committee made 39 conclusions and recommendations mostly aimed at strengthening FoI law. They included requiring government meetings to be minuted to prevent any “deliberate attempt” to evade FoI.
The cross-party committee urged reforms to make clear that ministers’ private emails and social media used for public business should not be exempt. Organisations that received public funds should be “automatically” subject to FoI law, it said.
The committee expressed concern at the “slow pace” at which new organisations had been brought into the FoI regime. The current legislation was “insufficiently nimble to keep pace with the changing nature of the public sector landscape,” it concluded.
Since then there has been little apparent movement from the Scottish Government. On 4 March 2022 the minister for parliamentary business, George Adam, told MSPs that the government was “currently developing” a consultation exercise. “We will announce further information about the consultation as soon as we are in a position to do so,” he said.
In January the Campaign for Freedom of Information in Scotland (CFoIS) published its own 24-clause draft bill to “amend, strengthen and close the legal loopholes” in FoI law. Proposals included more proactive publication and the introduction of a statutory FoI officer in every public authority.
The campaign is inviting responses to its suggestions by 24 April 2022, which will be the twentieth anniversary of the Scottish Parliament passing the Freedom of Information (Scotland) Act.
The draft bill was welcomed by the information commissioner, Daren Fitzhenry. He pointed out that it was also more than two years since the Scottish Government had consulted on extending FoI rights to more organisations.
“While I recognise that during this time the Scottish Government has faced significant challenges arising from the pandemic, it is nevertheless disappointing that we have yet to see tangible steps taken towards strengthening and improving FoI law,” he said.
“In the absence of this, the Campaign for Freedom of Information’s draft bill has provided a welcome opportunity to consider and discuss specific proposals.”
Fitzhenry argued that recent experiences had highlighted the importance of access to information rights and proactive publication to build public trust. “I hope the conversation around how these rights and obligations can be protected and strengthened moves forward soon, to ensure they remain fit for purpose for people seeking information about the issues that matter to them,” he added.
CFoIS convener, Carole Ewart, argued that it was in everyone’s interest to have a robust legal framework delivering transparency and accountability. “Scottish ministers should stop stalling and deliver FoI reform,” she told The Ferret.
“Their sustained lack of action amounts to a mute refusal to deliver on the evidenced recommendations from a Scottish Parliament inquiry in 2020. The legislation is 20 years old and it needs an overhaul to close legal loopholes, keep pace with how public services are delivered and ensure that legal rights and duties are enforced.”
CFoIS’s draft bill was supported by the Scottish Liberal Democrats. “It’s not only an excellent piece of work but the changes are long overdue,” said the party’s former leader, Willie Rennie MSP.
“The SNP government has a problem with transparency and openness which is why they have repeatedly stalled on making changes to the FoI laws. Transparency should follow the public pound no matter where it leads.”
“Freedom of information is a fundamental pillar of modern democracy. Recent events show we need complete transparency about how our public money is spent.”
The Conservative MSP, Graham Simpson, warned that “developing” an FoI consultation exercise meant that ministers were “kicking it into the long grass”. They had “no appetite whatsoever” for reform, he claimed.
“It is not good enough. The SNP government doesn’t take freedom of information seriously and that has to change.”
The Scottish Greens stressed the importance of trust in information and confidence in government. “As we adjust to the new post-pandemic world, we have an opportunity to update our FoI legislation,” said the party’s MSP, Maggie Chapman.
“Public services have changed, ways of working have changed. It is important, therefore, that we update the laws that enable confidence in and scrutiny of how duties to and rights of our communities are provided and accessed. We must also ensure loopholes are closed.”
A Scottish Government spokesperson said: “There is no lack of action on the part of ministers and we remain committed to access to information rights in Scotland. Understandably, our plans have had to adjust to accommodate the additional requirements of responding to the pandemic.
“Nonetheless, we have committed to bringing forward a consultation to seek views from the public on possible future legislative change and that remains the case. Work to consider extending the Freedom of Information (Scotland) Act further using ministers’ existing power under section five of the act is also ongoing.”
Cover image thanks to iStock/Heartland-Arts.