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.