The outgoing Scottish Information Commissioner, Kevin Dunion, has laid a Special Report before the Scottish Parliament entitled Informing the Future -The State of Freedom of Information in Scotland. He addressed the Justice Committee on the measures which he believes should be taken to safeguard and strengthen rights to information in Scotland. This is the first time that a departing Parliamentary officeholder has formally made a submission to Parliament reflecting on their full term in office. In his final report, the Commissioner recommends that:
- additional bodies, such as local authority trusts, should be designated under the Freedom of Information Scotland Act
- charges which deter requests for information should not be introduced
- the Commissioner should be empowered to take evidence, under oath if necessary
- timescales to bring prosecutions for the offence of destroying information after a request for it has been made should be extended.
The Commissioner concludes that, overall, the state of freedom of information in Scotland is still strong. Public awareness of FOI rights is at an all time high and public authorities are generally complying with their obligations. However he warns that appeals against authorities are rising sharply, with appeals for 2011/12 projected to be 25% up on 2010/11. Increasingly, the Commissioner’s decisions are finding that authorities have failed to deal with requests correctly.
The Commissioner also made a final call for action to Ministers to use their powers to designate arm’s length organisations, such as local authority trusts and private contractors, which now increasingly provide public services and facilities such as education, health, sports and leisure.
Mr Dunion said: “It is testimony to the effect of FOI that information on important matters such as public sector contracts, hospital acquired infections and school closures has not only been disclosed but proactively published. This success may be undermined if the right to information is lost when service delivery changes. It is nearly ten years since Parliament was told that powers to designate additional bodies such as local authority trusts and private contractors would be used. Disappointingly, successive administrations have failed to make good on this despite opinion polls showing that the public is strongly in favour of such action.”
The Commissioner rejected suggestions that FOI is a burden and pointed out that Scotland is in danger of falling behind other countries, including the rest of the UK, and said:
“The view that FOI is an intolerable regulatory burden on authorities turns the clock back 20 years and is not supported by evidence. Alternative measures such as codes of practice and voluntary charters have been shown not to work effectively – often because there is no capacity for a Commissioner to enforce compliance and hear appeals. Designation is not just about extending the reach of FOISA, but safeguarding vital rights to information.”
The UK Government has already made its first designation order and is consulting with nearly 400 other bodies. The Commissioner’s report recommends that Ministers should proceed with designation of those bodies already consulted in Scotland and a rolling review of designation be instituted to ensure rights to information keep pace with changes in the delivery of public services.
The Special Report sets out a number of other recommendations to clarify and strengthen FOISA, only one of which is being addressed by the Freedom of Information (Amendment)(Scotland) Bill which was announced by Ministers on 16 December 2011.
“I believe my Special Report is particularly timely given the current consultation by the Scottish Government on a Freedom of Information (Amendment)(Scotland) Bill, and as an early contribution to the Government’s intended consultation on a Transparency Agenda for Scotland in 2012.”
