Report by Chris Bartter of the Campaign for Freedom of Information in Scotland summarising the discussions which took place at the International Conference of Information Commissioners in Manchester, 19-21 September 2017. The report was presented to the Scottish Public Information Forum on 28 September 2017.
Reform Report Publicshed Since 2015, CFoIS has called for an inquiry into the operation of the Freedom of Information (Scotland) Act 2002 (FoISA) as we are concerned that it has become weaker in practice and has failed to keep up with international best practice. This report focuses on informing the post legislative scrutiny of FoISA and sets out what additional measures are required to ensure the right is robust and effective in enabling people to get the information they want when they need it.
News Release The Campaign for Freedom of Information in Scotland (CFoIS) welcomes the report of the Scottish Commission for Parliamentary Reform  but urged prompt action to require the Parliament to become more open, accessible and accountable in line with its founding principles.
CFoIS submitted evidence to the Commission and made FoI requests to check out how the parliament is operating. CFoIS has drawn up five areas for targeted action following the Commission’s report underpinned by the conclusion that the Freedom of Information (Scotland) Act 2002 (FoISA) requires reform to enable the public, NGOs, journalists and bloggers to find out how they are being governed and to effectively hold politicians to account.
- Monitoring and Evaluating the Parliament – In response to a CFoIS FoI request asking for a breakdown of how often individual committees have met in private since 1999, we were advised that comparative statistical information is not gathered. Instead we were directed to visit the National Library of Scotland for statistics before 2009 and examine online reports after that. Therefore, CFoIS agrees with the Commission’s recommendation that ‘More effective monitoring and evaluation of the work of the Parliament’ is essential and we are perplexed that this culture and practice was allowed to develop.
- Need for Post Legislative Scrutiny – FoISA was passed in 2002 but its effectiveness has been diminished because it increasingly covers fewer bodies that are delivering public services or services of a public nature eg those which are delivered by the Third Sector in health and social care. Promises made in 2002, for example that housing associations would be covered, have still not been honoured with the latest prediction being April 2018 but the absence of a firm announcement is causing suspicion about yet further delays. Therefore, CFoIS welcomes the Commission’s recommendation for ‘An enhanced legislative scrutiny process with mandatory pre- and post-legislative scrutiny’ so that legislation is regularly reviewed for impact and effectiveness.
- Holding Government to account – The Scottish Government must report on its use of Section 5 powers of FoISA on or before Tuesday 31st October 2017  and that report will include an indication of any intention to exercise the power to designate bodies for coverage in the future. The Scottish Government’s report must result in concrete, progressive action. Additionally, the Scottish Parliament must have its own ideas about what categories or named bodies it believes should be added to FoISA eg RSLs and their 148 subsidiaries, all arms-length external organisations (ALEOs) , professional associations undertaking a regulatory function eg the Law Society of Scotland, a strategic function such as CoSLA, and many private companies delivering services of a public nature eg health and social care and road maintenance. Therefore CFoIS welcomes the Commission’s recommendation for ‘More flexibility and spontaneity in the business of the chamber, improving opportunities for participation in debates and increasing ministerial accountability.’
- Stronger information access rights for MSPs – CFoIS believes that MSPs need to have access to better information to make informed decisions. For example, currently MSPs are not permitted to see the Scottish Parliament’s full legal advice on the impact of Bills on the European Convention on Human Rights (ECHR) yet MSPs can only pass Bills which are ECHR compliant. Currently they receive only an edited version that confirms the Bill is compliant despite the subsequent parliamentary process often involving submissions from civil society organisations claiming ECHR issues have not been addressed. CFoIS knows from FoI requests that there is no routine system to update and brief MSPs on cases decided at the European Court of Human Rights that may impact on the business of the Scottish Parliament. This gap in information and the consequent silencing of debate is unhelpful. Therefore, CFoIS welcomes the Commission’s proposal for ‘An enhanced role for individual MSPs to influence, and contribute to, parliamentary business and encouraged to be parliamentarians first.’ However, for this recommendation to be effective requires increased information rights for MSPs.
- Shortage of money stifles effective engagement and creates conflicts of interest – At a recent Scottish Public Information Forum meeting it was reported that there is some evidence that civil society organisations who receive the public pound through contracts or grant funding are discouraged from making FoI requests because ‘don’t bite the hand that feeds you’. CFoIS acknowledges that it is very important for the Parliament to engage with people however the Third Sector needs to be funded to be independent and to exercise their independent voice without fear of retribution from the public services that fund them. For the Commission’s recommendations to be realised requires a variety of reforms for Scotland to ‘become a leader in public engagement, experimenting with new ways to gather views and evidence and opening more opportunities for people to become involved, where they want and how they want’, as well as the ‘creation of a Committee Engagement Unit.’
Carole Ewart, Convener of the Campaign for Freedom of Information, said:
“The Commission makes important recommendations that need to be delivered soon. Fundamental to the reform are the updating of our information access rights so that MSPs, journalists, civil society organisation and the public in general can hold the Parliament to account. At a time when fake news has been exposed as skewing decisions and misleading people, there has never been a greater need for the publication of information so that better decisions are made about public spending, delivery of public services and crafting policy. Whether you are an MSP, a charity or a member of the public, you need to be able to access and rely on good quality information so that you can do your job, serve your community and participate in public affairs.”
 CFoIS submitted evidence to the Commission which is acknowledged on page 97 ref no: CPR095. The Commissions’ report is available here.
 Required by the Freedom of Information (Amendment) Scotland Act 2013 available at http://www.legislation.gov.uk/asp/2013/2/2013-05-31
 The Scottish Charity Regulator reported there are 68 ALEOs that are also charities. Some ALEOs are already covered voluntarily such as Glasgow Life, or via legislation such as ‘Culture and Leisure Trusts’.