Open Rights Group has called on two bodies to review the Freedom of Information (Scotland) Act 2002. It is vital that both bodies choose to review to explore freedom of information in Scotland from two distinct perspectives: politics, and law.
A strong freedom of information law is the bedrock of a democratic society. It gives you the opportunity to shine a light on your institutions, from your local council to your central government and every Ministry in between. It is a straightforward method to hold public institutions accountable for the actions they take. It never stops being important to make sure that the freedom of information laws across the UK are up to scratch, still giving the opportunity to shine that light.
Last week, the Scottish Law Commission and the Public Audit and Post-Legislative Scrutiny Committee closed their calls for review of laws in Scotland. Open Rights Group, working with other organisations across Scotland, called for both of these bodies to review the Freedom of Information (Scotland) Act 2002.
To some, this may seem like overkill. Why choose the same law for two separate scrutiny procedures? Surely you should be expanding the scope and recommending the many other problems in Scotland that need looked at?
Sure, there are a number of other pieces of work that need to be looked at in Scotland, from pretty much anything post-Brexit to exploring the scope of further devolved powers. But because access to information is such a fundamental part of the relationship between the State and the citizen, and Scotland is on a concerning path in this area, there is an overwhelming need to get freedom of information covered in two distinct areas that these bodies operate in: politics, and law.
The Political angle
Freedom of information in Scotland has received a decent dose of political attention recently. We have seen debates in parliament with motions voted on by MSPs from all parties criticising the government’s record, broad coalitions of journalists raising concerns, and a departing Scottish Information Commissioner calling the current situation “totally unacceptable” in interviews.
This is not the environment Nicola Sturgeon would have hoped to foster when she called on her Government to be an “outward looking Government which is more open and accessible to Scotland’s peoples than ever before” . Instead of this beacon of transparency, the reality is of requests being repeatedly delayed significantly beyond the 20-working day deadline, government officials taking control of requests to other government agencies without the applicant’s consent, and requests being blocked or refused for tenuous reasons.
This is a cultural problem. Ultimately, the question coming from the political debate is whether the Freedom of Information (Scotland) Act 2002 has achieved its intended purpose, and if it has not, what have been the factors behind that failure. That is why the Parliamentary Audit and Post-Legislative Scrutiny Committee is well placed to review the legislation. Open Rights Group and other civil society organisations in Scotland called on the Committee to do so in an open letter published 31 July.
It has been over 10 years since the Act was introduced, and with transparency and openness in the Scottish Government’s priorities, FoISA needs to be scrutinised against the policy objective of an open and transparent Scotland.
The Legal Problem
Alongside the discussion of culture of freedom of information, and its embrace (or lack of it) in public authorities, comes the legal question. The judgment by the European Court of Human Rights in Magyar Helsinki Bizottság v. Hungary in November 2016 is important. The case had implications for access to information as a right under the European Convention on Human Rights, the role of NGOs as watchdogs, what ‘public interest’ means in the context of the right to freedom of expression, and the right to access information to realise that fundamental human right.
Firstly, it was not clear in European Court of Human Rights case law that there was a right to public access to information. Magyar changes that:
“…in circumstances where access to information is instrumental for the exercise of the applicant’s right to receive and impart information, its denial may constitute an interference [with article 10 ECHR].” [para. 155]
In other words, a State refusing to release information requested from it by the public may be a violation of the rights within freedom of expression. That is a big change to where Europe was previously.
The case extensively discusses public interest. Reiterating that NGOs like ORG and others can sometimes be considered public watchdogs and that a request from such watchdogs, with a view to informing the public, is an important consideration in favour of releasing that information. Alongside this there were further criteria laying out circumstances under which a right to access public information exists under Article 10 European Convention on Human Rights. That is a significant development.
So how does FoISA size up to this change and statement around general parameters? Good question! It is unclear, but the Scottish Law Commission is definitely in a good position to make an assessment about the relevance of FoISA against leading European case law. This is one of the main reasons why Open Rights Group and Scottish PEN called for the Commission to review FoISA alongside this and a number of other questions in their Tenth Programme for Reform.
Ask a simple question – get a clear answer.
It remains unclear at this stage whether either of these bodies will take on the task. It is hoped that both will find it in their remit to assess the Act. If it were one or the other we would lose a vital part of the answer to the questions posed.
The premise behind freedom of information is simple: as a member of the public you get to ask a question of public institutions and get a clear answer. So here is ORG’s: Is freedom of information in Scotland fit for purpose? It is now up to public institutions to decide to give a clear answer to that simple question.