Yesterday the Scottish Parliament passed the Freedom of Information (Amendment) (Scotland) Bill which will make some amendments to the Freedom of Information (Scotland) Act 2002 (FOISA). The Bill will now go forward for royal assent. The Bill as finally approved by the Parliament can be found here.
While the Bill does make some important and much needed changes to FOISA, there is much more that the Parliament could have done to strengthen the Bill and the message that FOI is here to stay in Scotland.
One of the most controversial elements of the Bill was the removal of the public interest test in relation to information which is exempt under the so called ‘Royal exemption’. The Scottish Government, to their credit, did listen to oral and written evidence submitted to the Finance Committee on the Bill and removed that amendment from the Bill at Stage 2. The debate about the Bill then moved to what was missing from it rather than what was contained within it; primarily because what was missing was of much more concern than what was there.
One of the most significant changes which was passed by the Scottish Parliament can be found at Section 5 of the Bill. This changes the time limit for proceedings under s.65 of FOISA. Section 65 creates a criminal offence to alter, deface, block, erase, destroy or conceal a record held by the authority with the intention of preventing disclosure. Currently, FOISA means that a prosecution for an offence under this section can only be initiated within 6 months of the offence being committed. With the timescales permitted by FOISA it was impossible for a prosecution to be brought because it could be as many as 4 months before the request gets to the commissioner and could be 6 months before the Commissioner’s office is even aware that a s.65 offence may have been committed. The change that will come about as a result of this Bill means that a prosecution can be brought where it is done so within 6 months of evidence that the prosecutor believes is sufficient to justify the proceedings coming to the prosecutor’s knowledge (so long as it is not more than three years since the offence was committed).
I am not suggesting that there are significant numbers of these offences being committed, but there is little doubt that some will have been since 2005 and the impossibility of a prosecution ever being brought might have acted as an incentive for an authority so minded. The Bill passed by Parliament yesterday reinforces the fundamental nature of FOI and that those who seek to frustrate the FOI process will be prosecuted for it. It will be interesting to see if prosecutions do arise once the amendment comes into force.
Another significant change is at s.4 of the Bill and it relates to when information becomes a historical record. This will hopefully mean that information held by public authorities will be released much quicker than it might otherwise have been and that can only be a good thing for transparency and openness in public life.
Since the Bill was first published there was one thing that was noticeably absent and that was provision to extend the coverage of FOISA to bring (at the very least) the public’s FOI rights back to where they were in 2005. Since FOISA was passed in 2002 and came into force in 2005 there have been significant changes in the way public services are provided. Local authorities have transferred significant amounts of their work to private companies (many of which are publically owned); housing and leisure facilities are two prominent examples.
When these functions were carried out by local authorities the information held was subject to FOI and could be obtained to scrutinise work in these often important areas, but as these activities have been transferred to these ‘arms length organisations’ (Aleos) they have stopped being subject to FOI and people’s FOI rights have been reduced.
The Deputy First Minister made much of the designation power at s.5 of FOISA (to which some changes have been made to strengthen ministerial accountability over the use (or lack of) of these powers) and how it was the Government’s intention to use the powers. The current Government has been in power for almost six years and in that time not a single s.5 order has ever been made by them. The previous Government had not made any such orders either, but they left power only two years after FOISA came into force and were in power during a time when FOI was still bedding down and its extent and coverage was still, to an extent, being worked out. The fact that for six years the current Government has made no real effort to ensure that FOI rights are maintained, let alone extended in appropriate cases, is a significant failure. The Scottish Government can try and cover it up in any which way that they choose, but the fact remains that they have not issued a single s.5 order.
The Bill was, in the Government’s view, never about extending coverage. However, it should have been. While Parliament was spending time debating and considering FOI in Scotland it would have been a perfect opportunity to at least include those organisations previously consulted on in the coverage of FOISA. An amendment was moved yesterday by Iain Gray MSP to include Glasgow Housing Association into the list of Scottish Public Authorities, but that was defeated. A move to insert a more general amendment that would have made information held by a significant number of Aleos subject to FOISA was also rejected by the Parliament.
The Government frequently tells of its commitment to openness and transparency; indeed it was referred to many times during the passage of the Freedom of Information (Amendment) (Scotland) Bill through the Scottish Parliament. However, the Government could have demonstrated that they truly adhered to that commitment by agreeing to include those organisations previously consulted over into FOISA.
The Deputy First Minister has committed to issuing at least 2 s.5 orders; we really must see a substantial one issued this year and preferably before the summer. Anyone in Scotland who believes in FOI must now ensure that pressure is put on the Government to keep its commitment to use s.5 and to get it to do so early.
Iain Gray MSP put it well in the chamber yesterday when he said:
The point is that FOI legislation tests a Government’s moral fibre. No Government likes FOI. FOI is always inconvenient, but it is the right thing.
The Bill certainly has made some important and much needed changes, but it fell far short of what was needed.
The full Stage 3 debate can be read in the Offical Report of the Scottish Parliament