Freedom of information in Scotland: Don’t lose sight of the bigger picture

On Wednesday 13 June the Scottish Information Commissioner’s Office (SICO) published their intervention into the Scottish Government’s freedom of information practice and performance. The intervention by the ICO concluded that the Scottish Government treated freedom of information requests from journalists differently from other requests. This was a betrayal of the ‘applicant-blind’ principle of freedom of information legislation according to the report.

Motion S5M-06126 was passed almost a year ago today on 19 June 2017 in the Scottish Parliament condemning the Scottish Government’s record on freedom of information. This intervention report satisfies one of the two outcomes. The motion also calls for post-legislative scrutiny of the Act. Open Rights Group and other civil society groups in Scotland have been pushing for the Public Audit and Post-Legislative Scrutiny Committee to take up the task.

This intervention from the Scottish Information Commissioner was a welcome and necessary one, but it was a just one piece of the puzzle..

It was a special intervention into just one body – the Scottish Government. And the focus was on just how it treats one type of requests – requests from journalists. We must not lose sight of the bigger picture.

A proper assessment of the Act should test whether the Act itself is fulfilling its intended purpose. The Freedom of Information (Scotland) Act 2002 (FoISA)  is about more than the Scottish Government and its relationship with journalists.

Recommendations from the SICO intervention are focused on the Government changing their treatment of request from journalists and reviewing clearance procedures to improve on specific shortcomings. These are worthwhile and practical recommendations given the terms of the intervention.

While the fuel for this saga was a political back-and-forth over restricting journalist’s access to information, there is scope for bigger questions.

The bodies covered by the FOISA are not all the bodies involved in delivering public services. For example, Registered Social Landlords are not subject to the law. This is despite their clear similarity in their operations to local authorities, and a vast majority of respondents to a consultation agreeing that Registered Social Landlords should be covered.

There are other bodies that because of their structure, not their function, are not subject to freedom of information requests. This is backward and in a situation where an increasing number of organisations that aren’t wholly public-owned get involved in delivering public services, there really should be a consideration of whether FoISA in its current form is fit for purpose.

Scotland is unique to England in that the SICO is the final body for appeal, whereas in England you can take your claim to Tribunal. Post-legislative scrutiny should also seek to assess whether the appeals procedure in Scotland is as robust as it can be.

The intervention by the SICO clears the way for deeper, wider scrutiny of FoISA itself. The intervention shows how the practice in one, albeit very important, body has not lived up to the standards set. The question now needs to move onto whether, on a more profound level, our standards established by the law, and the application of the law, are still fit for purpose in Scotland for the future.

That is the question the Post-Legislative Scrutiny Committee needs to seek to answer.