International Right to Know Day Marked in Scotland Scotland’s Public Information Forum meets today to celebrate International Right to Know Day (IRKD) and discuss how transparency and accountability can be strengthened through reform of the Freedom of Information (Scotland) Act 2002 (FoISA). Both FoISA and IRKD celebrate 20th anniversaries this year which provides an opportunity to reflect on what has been achieved domestically as well as globally and how to improve legally enforceable access to information rights on matters such as the design, delivery and funding of public services. The importance of the issue was further recognised in 2019 when the UN General Assembly proclaimed 28th September as the annual ‘International Day for Universal Access to Information (IDUAI)’. The theme of UNESCO’s Global Conference on Universal Access to Information 2022 is ‘Artificial Intelligence, e-Governance and Access to Information’, reflecting on how information requests are changing as ‘digital first’ services grow.
Speakers at SPIF today are:
· Katy Clark MSP who will shortly launch a consultation as the first step in reforming FoI law in Scotland through a member’s Bill.
· ‘The Need for Reform?’ Daren Fitzhenry, Scottish Information Commissioner
· ‘Key Issues for Reform’ Carole Ewart, Convener of CFoIS
The presentations will be followed by questions and debate. After that, there will be a session of updates and reports including from: the Scottish Government, the Scottish Information Commissioner and CFoIS. Over 70 people have registered to attend this free event – link above.
Carole Ewart, Convener of CFoIS said today: “Over two years ago, Parliament’s Public Audit and Post Legislative Scrutiny Committee agreed a report itemising over 40 areas for reform of the Freedom of Information (Scotland) Act 2002 but it has not led to legislative change. In January 2022, CFoIS published its own Bill with Extensive Explanatory Notes and I am delighted that legal reform is now being taken forward by an MSP in a member’s Bill. Today’s meeting of SPIF enables people to hear about progress, timelines and detail of legislative reform. Also, to discuss the importance of the law’s agility in ensuring consistency in rights delivery given the dramatic changes in digital communication and diversification in publicly funded services.”
FoI and Scotland’s National Care Service The Scottish Government has published a Bill which will centralise care and establish Care Boards. This strategic and operational change creates new issues around transparency, accountability and scrutiny. Section 3 of Schedule 2 in the National Care Service (Scotland) Bill adds a “Care Board” to the Freedom of Information (Scotland) Act 2002 (FoISA) which is welcome. However the public usually wants to deal with individual providers directly but, currently, private and third sector providers are not covered by FoISA. Despite a Scottish Government consultation in 2019 to extend FoISA to Third and private sector providers of social care, no progress has been made to deliver. These issues will be covered at the next meeting of SPIF on 28th September, click on the tab above to register for a free place and join the conversation.
Celebrating FoISA and Championing Legal Reform On the 20th anniversary of the Freedom of Information (Scotland) Act 2002 (FoISA) receiving Royal Assent, organisations from across Scotland have voiced their support for legal reform and for the Campaign for Freedom of Information in Scotland’s draft Bill to improve the law.
STUC General Secretary Roz Foyer said: “Accountability and transparency should be the foundations of our democratic process. The Freedom of Information Scotland Act has played a key role in ensuring public services, bodies and authorities are purposefully scrutinised for the public benefit. As we enter the 20th anniversary of the Act, it is absolutely vital this legislation is reformed to strengthen these foundations. We support the Campaign for Freedom of Information in Scotland to achieve this, ensuring FOI legislation is fit for the modern age, closing legal loopholes that would otherwise restrict transparency and extending access to information to include outsourced organisations and those providing public services.”
Patricia Anderson of the Give Them Time Campaign pointed out: Without FoI legislation, there wouldn’t have been a Give Them Time Campaign. Our FoIs to local authorities turned parents’ individual anecdotes to fact and gave credibility to our claims. They painted an undeniable picture of the widespread postcode lottery of continued nursery funding being allocated to children deferring their p1 start. We wouldn’t have successfully changed the law without it.
NUJ Scotland’s Nick McGowan-Lowe said: “The realities of making Freedom of Information requests have fallen well short of the culture of transparency and openness that the legislation once promised. Our members routinely face barriers to legitimate FOI requests, apparently in an attempt to try to deter or delay reporting. Contrary to the intent of the legislation, reports of journalistic requests being handled differently to requests from elsewhere are depressingly commonplace”
Mhairi Snowden from the Human Rights Consortium Scotland said: “Freedom of Information law is a crucial tool for human rights protection, making sure that people in power cannot just make decisions behind closed doors. So often, our human rights are only protected to the extent that there is transparency around government decision-making. Being a world leader on human rights means having world leading freedom of information law – that is why it is now time to update FoI legislation so that it is strong and effective.”
UNISON Scotland’s Stephen Low said: “On its introduction the Freedom of Information Scotland Act was bold and ground breaking and we should be proud of the commitment to transparency and accountability shown by its authors. Now though it is no longer adequate for today’s society – we need a new Freedom of Information Act with the same boldness of the original committed to the principle that public funding and transparency must go together.”
Update on Scottish Government Intervention On 18th May 2022, a new report was published by the Scottish Information Commissioner on the Scottish Government’s handling of FOI requests. The report concluded that further work is required to comply with the agreed action plan. The latest findings were informed by an in-depth assessment of performance from April 2019 to March 2021 which identified:
- evidence of widespread failures to comply with records management requirements when handling FOI requests
- issues with the organisation’s ability to track, monitor and report on key elements of FOI performance
- inconsistent compliance with new procedures designed to prevent delays in the approval of FOI responses.
There was some good news in the report such as “the ending of the inappropriate practice of handling requests from journalists and political researchers differently from other requesters.” To read the full report go to Scottish Government Intervention Progress Report published | Scottish Information Commissioner (itspublicknowledge.info) The report from the Commissioner is the latest stage in the ongoing Level 3 intervention in the Scottish Government’s FoI practice, begun in 2017, and focuses on delivery of an agreed improvement action plan.
UK ICESCR Report Now Available The UK’s report to the UN on its compliance with the International Covenant on Economic, Social and Cultural Rights has now been published. Information on compliance in Scotland on devolved and reserved matters is included too. This is an opportunity for organisations, community groups and individuals to access the information to scrutinise performance. Here are the links: International Covenant on Economic, Social and Cultural Rights (ICESCR): 7th periodic report – GOV.UK (www.gov.uk) and Human rights: common core document – GOV.UK (www.gov.uk)
Over the next few months there will be events to help promote these reports, to encourage scrutiny and to promote accountability. The UN’s ICESCR Committee will agree a timetable to take evidence about our experience of equally enjoying economic, social and cultural rights. Please keep checking for updates on dates and events.
Support Growing for Motion at Scottish Parliament 19 MSPs have recorded their support for a motion ‘Celebrating Freedom of Information (Scotland) Act at 20 Years’. The motion has achieved cross party status. The text can be found HERE and please check out if your MSPs are supporting it and if not, please encourage them to do so.
FoISA@20 – An FoI celebration! It is 20 years since the Freedom of Information (Scotland) Act 2002 (FoISA) was passed by MSPs at the Scottish Parliament, on 24th April 2002, heralding a new era of openness and accountability and changing the culture on the release of official information to benefit the public interest. The most important legal change was the enforcement of the right and significant legal consequences for any of the 10,000 designated bodies that fail to comply.
The vision for the new law was set out in ‘An Open Scotland’, the 1999 Scottish Executive consultation where the then Deputy First Minister said “At the heart of our proposals is a presumption of openness and a belief that better government is born of better scrutiny”. To sustain and enable better scrutiny in 2022, the Campaign for Freedom of Information in Scotland (CFoIS) has published a draft Bill to amend FoISA. It is building support for its 21 amendments so that enforceable access to information rights will thrive in the next twenty years despite changes in how publicly funded services are delivered and changes in technology which alter how records are created and stored for future disclosure. Click on Bill/Publication on the Menu above to read the Bill and the Explanatory Notes.
UPR of UK Periodically the UN Human Rights Council examines each country’s record on respecting, protecting and fulfilling international human rights law – known as the Universal Periodic Review (UPR). In 2022 the Council is examining the UK, including Scotland’s, performance and civil society were invited to make submissions. CFoIS seized the opportunity and read our views HERE and in a PDF version HERE. Yes it’s short, but we are limited to a fixed number of words. A process is now followed culminating in a hearing at the UN, expected in November 2022. We will keep you posted!
Voluntary OGP Regime in Scotland Scotland’s 3rd Open Government Action Plan (OGP) has been delivered to the Open Government Partnership, and can be seen at Scotland, United Kingdom (opengovpartnership.org). It has now been approved by the Partnership. It is useful to note that ‘health and social care’ is included in this latest OGP for Scotland, ‘Improving and increasing both service user/participant, and service delivery staff, in the development, design and improvement of health and care services in Scotland.’ There will be ‘accountability’ in the delivery of this new commitment.
Whilst the voluntary OGP framework for the pro-active publication of information is welcome, it needs to be understood in the context of the existing legal duties under the Freedom of Information (Scotland) Act 2002 (FoISA). Under OGP, the holder of information decides what, when and how much information is published whereas under FoI law, the requestor can enforce their right to access information. Sourcing official information can be used by employees and service users to evidence the need for reform as well as provide assurances that services are being funded, designed and delivered fairly.
In 2019 the Scottish Government consulted on extending FoISA to care homes run by private companies and third sector organisations . Since then no action has been taken despite submissions of support from CFoIS and trade unions amongst others. Contact CFoIS to find out more and how you can be involved in our ‘FoI Care Equally Campaign’ firstname.lastname@example.org
March 2022 CFoIS has submitted its response to the UK Government’s “Consultation to reform the Human Rights Act 1998”. This consultation impacts on access to information rights across the UK. Article 10 of the European Convention on Human Rights (ECHR) is the right to form an opinion by receiving and imparting information. It is given domestic effect through the UK’s Human Rights Act (HRA). Receiving and sharing accurate information is key to forming an opinion, and explains why access to information is a human right and is a practical gateway to the equal enjoyment of human rights. Having read the Government’s consultation document and the report of the Independent Human Rights Act Review (IHRAR), CFoIS has concluded that the UK Government’s effort to justify replacing the HRA with a modern Bill of Rights is unconvincing. Our submission appears HERE and at PDF VERSION.
January 2022 A bill to reform the Freedom of Information (Scotland) Act 2002 has been drafted and published by CFoIS along with accompanying documents to explain the logic and detail of the amendments. The Bill is available here and the Accompanying documents are here. Please support the Bill!
The next stage is to secure cross party support to achieve legal reform at the Scottish Parliament to ensure FoI rights are robust. CFoIS is clear that we are beginning a process of legislative reform and we look forward to more amendments being proposed and accepted by the Scottish Parliament.
November 2021 – National Care Service CFoIS has made its submission to the Scottish Government’s consultation on the way social care is delivered, available HERE. CFoIS also produced a briefing on issues that organisations could include when drafting their response – CFoIS briefing Whatever new system is constructed, mainstreaming enforceable access to information rights and duties across the system, equally, is essential. Transparency and accountability are key to realising the Feeley Review recommendations.
Consultations – October 2021
The CFoIS submission to the UK Government on the UN’s periodic review of UK compliance with the International Covenant on Economic, Social and Cultural Rights focuses on the importance of greater transparency and accountability in the private sector’s relationships with public authorities and in procurement for public services and services of a public nature. Citing the UN’s 31 Guiding Principles on Business and Human Rights, the government should keep existing promises. Read it HERE.
CFOIS’ submission to the Scottish Government’s ‘terms of reference’ for the inquiry into the management of the response to COVID 19 is HERE.
International Right to Know Day (IRKD) – 28th September 2021: CFoIS promoted the enforceable right to access information with 2 events:
- The journalist Rob Edwards was the keynote speaker at the Scottish Public Information Forum (SPIF) on ‘COP26: its organisation in Glasgow and impact on climate change’.
- a civil society network met on promoting transparency and accountability in the private sector based on the 31 UN Guiding Principles on Business and Human Rights.
Transparency and Accountability – Legal Reform is Urgently Needed
June 2021 CFoIS urges all MSPs to support our ‘Call for Action’ and endorse and prioritise delivery of four actions designed to protect and strengthen the public’s enforceable right to access information:
- Use current powers under Section 5 of the Freedom of Information (Scotland) Act 2002 (FoISA) to extend enforceable access to information rights to health and social care services delivered by the private sector, particularly care homes. The Scottish Government held a consultation on the issue in 2019 and published a report on responses in March 2020.
- Reform FoISA to ensure the law delivers openness, transparency accountability and empowerment. The consultation process needs to begin urgently, informed by a Scottish Parliament report of May 2020 and from CFoIS of January 2020. Scotland’s new FoI law needs to be in place 20 years after the first – by 2022!
- Acknowledge that the right to access information in the public interest is a human right. Consequently the detail of FoISA reform should be informed by human rights law. The enforceable right to access information must align with the design and delivery of Scotland’s distinctive human rights strategy.
- Work with the UK Government to sign, ratify and implement the Council of Europe’s Tromso Convention which provides a general right of access to official documents held by public authorities.
Freedom of Information matters now fall within the remit of the Standards, Procedures and Public Appointments (SPPA) Committee of the Scottish Parliament.