Skip to main content

Time to revisit freedom of information coverage

CHRIS BARTTER on the weak spot in Scotland’s FoI laws

SCOTLAND has always been proud of its Freedom of Information law. Since 2002 the Freedom of Information (Scotland) Act (FOISA) has existed to open up public authorities and their services to the scrutiny of individual members of the public. 

The law is considered stronger than many, including the one covering public services elsewhere in Britain, and has been used by trade unions, campaigners, and the media to assist in their campaigns.

But the law has an inherent weakness — one that was pointed out at the time of its enactment, and which has become more obvious as time goes on. Its initial aims were outlined in the original 1999 consultation document, An Open Scotland: “We propose that all Scottish public authorities and public service providers, including the National Health Service in Scotland, schools and the police will be covered by the Scottish Freedom of Information legislation.” 

However the law did not, and does not cover “all … public service providers.” 

The time for government to address this is well overdue. We should now be going back to first principles and enacting legislation that covers the functions, not who provides them.

As it stands the law covers only public authorities and any wholly owned companies they may form. 

Not covered are an ever-increasing range of arms-length organisations (ALEOs), partnership bodies, voluntary organisations, private contractors and housing associations. 

These types of organisations now regularly provide our services. This often means that they no longer have the duty to provide us with information, which often proves very important in the confusion about who is the new service provider. 

Although provision exists to designate such bodies via Section 5 of FOISA, so far the only ones that have been added are local council ALEOs and then only those that run leisure and cultural services. The new ways of delivering the services that we rely on and pay for must also be subject to enforceable rights that the public can use to request information.

Many voluntary and social bodies such as charities and housing associations are quick to point out their commitment to openness and transparency. 

Unfortunately this commitment all too often comes as they advance arguments about why they should not be covered by the Act. 

The Campaign for Freedom of Information in Scotland (CFoIS) points out that it is only coverage by FOISA that gives us all the right to information. 

Anything committed to by other bodies remains at their discretion, and importantly, any dispute would be decided by the body themselves. Only FOISA coverage gives the right of an enforceable decision provided after an investigation by an independent regulator. 

Information rights are hugely important. Indeed the CFoIS includes them within the range of human rights. And there is no doubt that for human rights to be effective it is vital to be able to access accurate information about our services and governance.

The Scottish regulator too is concerned by the loss of rights. In an unprecedented 10-year report on FOISA, (FOI 10 Years On — Are the Right Organisations Covered?) the Scottish information commissioner strongly criticises successive Scottish governments’ inaction in dealing with the erosion of public information rights. She also strongly recommends immediate action to deal with some urgently needed coverage, such as for housing associations.

Most important though is a clear recommendation for the Scottish government to look again at the way the law is framed. The Commissioner suggests a “factor-based” approach, assessing a range of factors that make a function public. 

CFoIS has always advocated an approach based on international rights-based definitions. There is no reason why both cannot form part of the final definition. 

What is clear is that it is time to ensure that our public services are open to us, the public, whoever delivers them.

 

Chris Bartter co-ordinates communications for the Campaign for Freedom of Information in Scotland. He was formerly communications officer for Unison Scotland.

OWNED BY OUR READERS

We're a reader-owned co-operative, which means you can become part of the paper too by buying shares in the People’s Press Printing Society.

 

 

Become a supporter

Fighting fund

You've Raised:£ 13,288
We need:£ 4,712
3 Days remaining
Donate today