22nd November 2022 The Campaign for Freedom of Information in Scotland (CFoIS) notes the leaked minutes from an NHS Scotland health board chief executives meeting in September revealed consideration was given to “applying a charge for freedom of information requests”. It is important to reassure the public that strict rules operate on what can and cannot be charged for, and requestors can appeal to the Scottish Information Commissioner if they believe the charges are wrong or excessive.
Although the law already allows designated bodies such as NHS Boards to charge for FoI requests in certain circumstances and at a set rate, in practice many choose not to do so due to the costs involved in processing the charge. Also, releasing information has proven to build public trust so there is reputational gain in freely providing the information.
The rules on charging are set out in FoISA and the Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004 (the Fees Regulations). For example an upper limit is set, currently £600, beyond which an authority does not have to comply with a request. However a public authority can, with the agreement of the requester, respond to an information request costing more than £600 but there are rules on these charges too. The Commissioner’s helpful briefing can be accessed HERE.
November 2022 CFoIS welcomes the motion passed at the Scottish Liberal Democrat Conference to support legal reform of the Freedom of Information (Scotland) Act 2002. Proposed by Councillor Robert Brown, who as an MSP supported FoI reform in 2002, the motion acknowledges there is a role for the Scottish Parliament to hold the Executive of government to account on the need for and detail of, reform. Delegates agreed to “welcome the publication of the Freedom of Information (Scotland) (No. 2) Bill, drafted by the Campaign for Freedom of Information in Scotland and calls for implementation of the principles of that Campaign’s “Call for Action” to protect and strengthen the public’s enforceable right to access information, including:
1. Using the current powers under Section 5 of the FoISA to extend enforceable access to information rights to health and social care service providers delivered by the private sector, particularly care homes.
2. Reform of FoISA to ensure the law delivers openness, transparency, accountability and empowerment.
3. Acknowledging 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.
- Working 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.”
CFoIS encourages supporters to pass motions at conferences and meetings and send in statements of support for legal reform to bolster our campaigning on FoI reform over the coming months.
2nd November 2022 – FoI Reform Bill Consultation Launched CFoIS is delighted that Katy Clark MSP is reforming FoI law through a member’s Bill at the Scottish Parliament. The first stage of the process begins today with the launch of a public consultation with responses due by 2nd February 2023. Katy Clark MSP is consulting on specific proposals to deliver robust FOI rights which will benefit individuals, families and communities across Scotland. CFoIS encourages people and organisations to respond to the consultation as your views count. Also please share your practical experiences of making information requests so the reform is effective.
This legislative development marks the culmination of seven years of campaigning by CFoIS and follows publication, at the beginning of 2022, of its draft Bill and extensive Explanatory Notes setting out the evidence for and the detail of, legal reform. 2022 has also been a year of events to mark the 20th anniversary of MSPs voting for the Freedom of Information (Scotland) Act 2002, which introduced enforceable rights and duties and the right remains very popular with 69,519 FoI requests submitted in 2020-21.
Since 2015 there has been a succession of research, reports, campaigns and a Parliamentary inquiry which have all confirmed the law needs to be substantially reformed as well as updated. Therefore legal reform is overdue.
1st November 2022 – FoI Practitioner Awards Launched The Campaign for Freedom of Information in Scotland welcomes the launch of ‘FoI Awards 2023’, by eCase which shines a spotlight on the essential work of FoI practitioners in making access to information rights effective. FoI laws are fundamental to ensuring a fair and equal society, to uphold human rights and the law needs trained, knowledgable and resourced FoI practitioners to ensure the system works for rights holders as well as duty bearers. The Campaign supports this high profile recognition of the skill and dedication of FoI practitioners which we regularly see in our work. We also applaud their courage which is sometimes needed to secure legal compliance within designated organisations.
CFoIS is serving as one of the judges along with the Scottish Information Commissioner and UK Information Commissioner’s Office. More information on the judges and the categories at The eCase FOI Awards 2023 The closing date for nominations is 15th December 2022 at 11pm so please think about nominating colleagues or those who helped you secure the information you requested.
October 2022 The Campaign for Freedom of Information in Scotland is urging MSPs to amend the National Care Service (Scotland) Bill, to address a transparency and accountability deficit. The Bill only makes the umbrella body, ‘the care board’ subject to the Freedom of Information (Scotland) Act 2002 (FoISA). Therefore care services provided directly by a private and third sector body will not be ‘designated’ so people cannot directly enforce their right to access information. We urge MSPs to adopt the same approach to social care as it does to the NHS as individual GP surgeries are designated under FoISA even though many are run as private companies. Read the full report HERE.
The report is also available in PDF format HERE The Health, Social Care and Sport Committee of the Scottish Parliament has accepted the report as a submission to its Stage 1 consideration of the National Care Service (Scotland) Bill and the response can be viewed here: Response 760642471 to National Care Service (Scotland) Bill (Detailed) – Scottish Parliament – Citizen Space
28th September 2022 – International Right to Know Day Marked in Scotland Scotland’s Public Information Forum met 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.
May 2022 – 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.
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’ email@example.com
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.