Anti-SLAPP Legislation CFoIS welcomes the decision of the Citizen Participation and Public Petitions Committee at the Scottish Parliament to consult on petition PE1975 to reform the law in Scotland relating to strategic lawsuits against public participation (SLAPPs). CFoIS notes that there have been commitments by the UK Ministry of Justice to amend the law in England. Therefore it is necessary to act and stop Scottish Courts being used instead and agree a four-nation approach to introducing and enforcing anti-SLAPP legislation. Read the CFoIS submission, limited to 800 words, HERE.
FoISA Reform – The next meeting of SPIF will be online on Wednesday 26th April from 10-12 to hear about the issues raised in the submissions to the two consultations on FoI rights and duties. There will also be discussion on the timeframe for next steps. Registration is via Eventbrite and access the Agenda by clicking on the Scottish Public Information Forum button above.
To access the submissions from CFoIS on the two consultations and other campaign materials go to FoISA Bill – CFoIS
CFoIS Delivers Presentation to UN CFoIS has made a presentation to the pre-sessional working group of the UN Committee on Economic, Social and Cultural Rights. This work builds on the submission to the UN Committee to assist its scrutiny of the UK and Scotland’s delivery of human rights. It is available HERE. The issues raised include: the repeated delays in reforming the Freedom of Information (Scotland) Act 2002, the migration of public services to other providers which causes a transparency deficit, the interdependence of a robust FoI law to wider policy priorities including the 31 Guiding Principles on Business and Human Rights. Central to the submission is that accessing information is a human rights and as a tool to assert all our human rights. In the ‘List of Issues‘ published by the Committee on 23rd March 2023, on 98 times the need for information was featured as a way to provide evidence of compliance with human rights, or otherwise.
The CFoIS submission also highlights the importance of all parts of the UK delivering anti-SLAPP legislation – abusive legal threats and strategic lawsuits against public participation. The use of SLAPPs limits freedom of expression and the right to form an opinion through receiving and imparting information and ideas. Currently there is a draft Bill to expedite reform, produced by the Anti-SLAPP coalition. CFoIS welcomes the Citizen Participation & Public Petitions Committee, at the Scottish Parliament, decision to consult petition PE1975 to reform the law in Scotland relating to SLAPPs PE1975 Reform the law relating to Strategic Lawsuits Against Public Participation SLAPPs | Scottish Parliament Website CFoIS encourages people to be aware of the issue and engage in the process.
February 2023 ‘Magic Circle’ Scandal Informs Campaign to Reform FoI Law Following the BBC Disclosure programme investigating how a Scottish lawyer now convicted on historic child abuse charges ‘hid’ his crimes for decades, the Campaign for Freedom of Information in Scotland has urged the Scottish Government to reform the Freedom of Information (Scotland) Act 2002 (FoISA) to close a legal loophole that stifles scrutiny of the independent criminal prosecution system and investigation of deaths in Scotland.
Section 48 of FoISA prohibits the Scottish Information Commissioner from investigating appeals about a procurator fiscal or the Lord Advocate, to the extent that the information requested is held by the Lord Advocate as head of the systems of criminal prosecution and investigation of deaths in Scotland. The effect is that whilst people can make FoI requests to the Lord Advocate or Crown Office and Procurator Fiscal Service (COPFS), their right is not legally enforceable in the same way as requests to other public authorities, with both appeals to the Commissioner and subsequent appeals to the Court of Session on a point of law being excluded. There is no equivalent provision in the Freedom of Information Act 2000 (FoIA) relating to the Crown Prosecution Service (CPS) or limiting the powers of the UK ICO. The ICO investigates and issues decisions in respect of the CPS. The need for legal reform was highlighted by the Commissioner in his submissions to the Parliamentary Inquiry undertaking post legislative scrutiny of FoISA in 2019.
The Inquiry report of May 2020 recommended substantial changes to FoISA prompting two current consultations on FoI rights and duties: CFoIS supports the proposals for legal reform of FoISA from Katy Clark MSP; there is a consultation from the Scottish Government which reflects its16 year old commitment to operate “within the Freedom of Information (Scotland) Act 2002 rather than proposing significant changes to it, but adjusts the regime where it is necessary and sensible to do so.” Both consultations end on 14th March 2023. Katy Clark MSP’s consultation proposes abolition of section 48 to promote transparency, enable accountability and provide consistency in enforceable rights.
 19_Scottish_Information_Commissioner.pdf (parliament.scot)
 Guide to information published by the Scottish Government – gov.scot (www.gov.scot)
January 2023 To celebrate the 18th Birthday of Scotland’s enforceable right to access information, the Campaign for Freedom of Information in Scotland (CFoIS) lists its top 10 events that have improved transparency, accountability and scrutiny in Scotland and fostered informed, civic participation.
The Freedom of Information (Scotland) Act 2002 (FoISA) became operational on 1st January 2005, having given the designated bodies a generous lead in time to prepare for complying with duties and delivering rights. Since then, hundreds of thousands of FoI requests have been made to individual GP surgeries, councils, health boards, regulators, colleges, universities and to the limited number of ALEOs (Arm’s Length External Organisations) covered. FoISA was a game changer because it introduced an enforceable right, freely accessible and adjudicated by the independent Scottish Information Commissioner. Consequently, FoISA is an established tool for scrutiny which has allowed people, organisations and journalists to obtain information on consumer issues, housing, education, policing, social care and on health such as the mortality rates of Scottish surgeons[i].
Consistently the public has exercised their right to benefit their family, the communities they live in and to uphold the public interest. Opinion polling by the Commissioner in 2022 found that 36% of those surveyed make at least 1 request a year by letter/ email/ online form, (which would constitute a FoI request[ii]) and 11% make multiple such requests annually.[iii]
However the legislation needs substantial reform which prompted CFoIS to publish a Bill in January 2022 and which has been taken up by Katy Clark MSP who has launched a consultation which runs until 2nd February 2023. After several years delay the Scottish Government subsequently published its own consultation which reflects its 16 year old commitment to operate “within the Freedom of Information (Scotland) Act 2002 rather than proposing significant changes to it, but adjusts the regime where it is necessary and sensible to do so.” [iv] CFoIS favours comprehensive reform so supports Katy Clark’s approach, but the Government’s consultation is still useful.
CFoIS Top Ten – not an easy process & more highlights will appear during 2023!
- 2005 The first appeal delivered by the Commissioner was published on 17th May 2005 and found in favour of the applicant. The speedy adjudication process and the reasons for disclosure provided the benchmark for compliance: “The Commissioner found that the authority has not dealt with the applicant’s request for information in accordance with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA). The authority should put in place procedures to conform with the provisions of FOISA…..”.[v]
- 2005 MSPs detailed expenses were disclosed due to Decision 033/2005 issued on 6th October 2005. A journalist had requested MSP’s travelling claims dating back to 1999 which was provided, but the destination points of taxi journeys were withheld. The Commissioner ordered the release of the information despite the information being personal data, as its release was considered not to breach any of the data protection principles. However each case had to be treated on its own merits, for example if the release of the information puts a person at risk, this information should not be released.[vi] It took until 2009 for the publication of the detailed sums MPs claimed as expenses.
- 2009 Unison Scotland requested information from the Scottish Prison Service (SPS), relating to the PFI contract for Kilmarnock Prison. The SPS subsequently published much of the information on its website but withheld the financial model which it considered exempt from disclosure in terms of section 33(1)(b) of FOISA, as disclosure would, or would be likely to, prejudice substantially the contractor’s commercial interests. Following an investigation, the Commissioner found that the SPS was wrong to withhold the financial model under that exemption and required the release of the information to Unison.[vii]
- 2013 The Freedom of Information (Amendment) (Scotland) Act is passed by the Scottish Parliament. As a result of concerns about the infrequent use of the Section 5 power, which enables more bodies to be ‘designated’ for coverage, bi-annual reporting to Parliament by Scottish Ministers was introduced on the use of the Section 5 power. In the last 21 years, the power has been used only three times and due to campaigning by civil society.
- 2013 Launch of portal for public to access statistical information provided by designated bodies, to enable regular scrutiny of their FoI performance.[viii]
- 2017 The Scottish Public Information Forum (SPIF) is reconvened by CFoIS, with an initial grant from UNISON Scotland, after having been abandoned by the Scottish Government in in 2010. SPIF meets several times per year and is an opportunity for stakeholders to discuss the practice of rights and duties.
- 2018 Although the Commissioner’s extended intervention in the Scottish Government began in 2017, the Action Plan for remedial steps and targets was agreed in 2018. The statutory intervention remains ongoing. The Commissioner’s latest report finds that whilst significant improvements have been made, further work is required if FoI performance is to be raised and sustained.[ix]
- 2019 RSLs (housing associations) successfully lobbied to be removed from ‘designation’ at Stage 3 of the Freedom of Information (Scotland) Bill in 2002 and it took until 2019 to have them added. The Commissioner’s report of the RSL’s first year shows they have not been inundated with FoI requests.[x]
- 2020 The parliamentary committee report on post legislative scrutiny of FoISA is published in May 2020 and recommends legal reform “… there is a clear need to improve the legislation, particularly in respect of the bodies that it covers and in relation to proactive publication.” [xi] Its Inquiry was prompted by a unanimous vote of MSPs on 21st June 2017.
- 2022 Katy Clark MSP launches a consultation on the reform of FoISA based on the CFoIS reform bill and extensive explanatory notes.[xii] The progressive proposals for legal reform will ensure FoI rights are robust, progressive and productive. This consultation offers the best approach to reform of FoISA.
People and organisations will have their own views the impact of FoISA and case decisions which have made a difference and we will be pleased to receive your suggestions over the next 12 months as we plan to issue a top 18 examples of how FoISA has improved transparency, accountability and scrutiny in Scotland.
[ii] A request under FoISA must be in a recorded format
[iii] 2022-Public-Awareness-Research-summary-of-results.pdf (itspublicknowledge.info)
[iv] Scottish Government’s Six FoI principles published in 2007 Guide to information published by the Scottish Government – gov.scot (www.gov.scot)
[v] Microsoft Word – inv2690 (itspublicknowledge.info)
[vi] Decision 033/2005 | Scottish Information Commissioner (itspublicknowledge.info)
[vii] Decision 104/2009 | Scottish Information Commissioner (itspublicknowledge.info)
[viii] FOI and EIRs statistics | Scottish Information Commissioner (itspublicknowledge.info)
[ix] Scottish Government intervention | Scottish Information Commissioner (itspublicknowledge.info)
[x] Housing association experience can inform the future of FOI | Scottish Information Commissioner (itspublicknowledge.info)
[xi] At Post-legislative Scrutiny : Freedom of Information (Scotland) Act 2002 – Parliamentary Business : Scottish Parliament and at Para 5 at PAPLS052020R2.pdf
January 2023 There are two consultations on access to information rights and CFoIS urges you to respond. CFoIS supports the route map to robust reform proposed in the consultation issued by Katy Clark MSP, which is based on the CFoIS Bill published a year ago:
- The consultation by Katy Clark MSP closes on 2nd February 2023
- The Scottish Government consultation on ‘Access to Information Rights in Scotland‘ affirms its 16 years old view that amending FoISA is un-necessary. It closes on 14th March 2023.
CFoIS welcomes the consultations as they provide an opportunity for the public and organisations to choose between radically different solutions to the evidenced problems.
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.
Other useful CFoIS documents: Publicly Owned Companies and 15 years of FoISA and need for reform