Stage 1 report on the Freedom of Information Reform (Scotland) Bill

The Committee notes the arguments in favour of this proposal, but it is not convinced of the necessity or material effect of the change given that section 1(1) of the FoI Act makes it clear that information should be disclosed to individuals requesting information from a public authority. The FoI Act's section 60 code of practice additionally notes there is a presumption in favour of disclosure under the freedom of information regimes.

The Committee notes the Commissioner’s view that promotion of a culture and practice of a presumption in favour of disclosure alongside the section 15 provisions of this Bill may be a preferable approach.

We refer to our overall conclusions on the appropriateness of a Member’s Bill being the vehicle for such reform.

The Committee has no concerns about this proposal for the Scottish Government to be required to consider proposals from the Commissioner when deciding whether to designate a public body.

The Committee notes the arguments in favour of this proposal to provide an additional avenue for the designation of public bodies.

However, the Committee does not think the process by which the Parliament would initiate, consider, and decide on whether a public authority would be designated has been sufficiently considered or laid out in the Bill. Therefore, we are not able to take a view on whether this power would speed up the process of designation or result in more bodies being designated. Any such process should be set out and clarified in legislation before it may be reflected in the Parliament’s Standing Orders.

We are also conscious that it would likely be a significant undertaking for a parliamentary committee to allocate appropriate time and resources to its consideration of designating a public body. The Committee notes Ms Clark’s view that this power would likely be used sparingly .

The Committee notes the Scottish Government’s view that the designation process commands strong ministerial interest and that it has concerns that the Parliament may not deliver the same degree of robustness in considering the designation of a public body. However, we refer the Scottish Government to the evidence heard regarding the apparent slow pace of designations and the recent lack of use of the designation process.

The Committee recommends that the Scottish Government takes the opportunity of the Stage 1 debate to set out how it will prioritise the making of designations beyond its current consultation in respect of private and third sector care providers.

The Committee considers this proposal to be a technical change which addresses an anomaly in the FoI Act. The Committee is of the view that it is right approach to extend designation to companies that are jointly owned by the Scottish Government and other public authorities.

The Committee notes the evidence that this proposal would provide for parliamentary scrutiny of the Scottish Government’s decisions regarding the use of the section 5 duty of the FoI Act.

We note that the provision would allow for only 20 sitting days for the Parliament to consider, debate, and decide on whether to approve a section 5 report, and we think further consideration is needed as to whether this is an appropriate period for effective scrutiny.

The proposal is also unclear on what would happen if the Parliament did not agree to approve the section 5 report, particularly with regard to whether there would be any obligations on the Scottish Government following such a decision.

As with our view on the power proposed in section 2(2), the Committee is not persuaded that this provision would necessarily increase the pace of designation of public bodies.

The Committee is content with the objective of this proposal, and we note that the Scottish Government may wish to propose changes to the drafting should the Bill progress beyond Stage 1.

The Committee notes that some information requesters may have experience of public authorities using clarification requests as a delaying tactic.

However, there is currently an absence of data with which to determine the extent to which public authorities have engaged in this practice. We are of the view that data on how and when public authorities seek clarifications would be essential in order to determine whether any proposal to pause the 20 working-day deadline would be an appropriate or effective solution.

The Committee considers that this proposal would be a substantive change to the processes in place for considering and responding to information requests and that further work would be required in order to assess the effect that the proposed change would have and whether it would deliver the intended benefit to requesters. This would also be the case for any alternative proposal for changing the time limit for complying with requests or for seeking clarifications, such as that suggested by the Commissioner. The Committee refers to its overall conclusions on the appropriateness of a Member’s Bill being the vehicle for such reform.

The Committee notes the arguments in favour of reducing the time limit for compliance for grant-aided and independent special schools.

However, the Committee did not hear evidence from stakeholders on the effect this proposal may have on such schools. We think, therefore, that further consideration may need to be given to any potential impact on the affected designated bodies.

The Committee notes the broad consensus among stakeholders, and the Scottish Government, that the publication scheme duty is outdated and no longer fit for purpose. The Committee therefore considers that its repeal would be the correct approach provided a suitable alternative provision is developed.

The Committee considers that the proposal to introduce a proactive publication duty would reflect the intention of the FoI Act. However, as with our view on the section 1 proposal, we are not persuaded that this change would, in itself, drive a change in culture towards information disclosure in public authorities.

The Committee notes the evidence heard in favour of replacing the publication schemes with a code of practice on proactive publication. We note that further consultation with stakeholders on the content and function of the code would be required. We refer to the evidence on the uncertainty regarding the financial impact of the code on public bodies.

We think it would have been helpful for the Committee and stakeholders for an indicative draft of the code of practice to have been provided along with the Bill. However, we accept that this would have required significant resource to develop.

The Committee notes the Commissioner was in favour of this exemption in Ms Clark’s consultation and that providing a statutory basis for an exemption would add greater clarity to the status of information provided during investigations.

We also note the Scottish Government’s concerns about the drafting of the provision. The Scottish Government may wish to work with Ms Clark to resolve these concerns should the Bill progress beyond Stage 1.

The Committee agrees with Ms Clark and the Commissioner that this proposal is necessary to enable the Commissioner to perform their functions.

The Committee notes the merits of this proposal for information requesters.

We suggest that more detail would need to be provided on how the “firewall” within the Commissioner’s office would work in practice and whether this would be sufficient to avoid the perception of a conflict of interest.

The Committee notes the challenges currently experienced by the Commissioner in seeking to promote compliance with the Codes of Practice.

The Committee also notes the Scottish Government’s argument for maintaining a clear distinction between statutory requirements and the advisory code.

The Committee considers this issue would need detailed consideration by the Scottish Government, and we refer to our overall recommendations on this Bill.

The Committee notes the evidence that suggests the First Minister’s veto power is an unnecessary safeguard.

The Committee is not persuaded by the Scottish Government’s argument that the power remains necessary as other safeguards are available regarding the disclosure of sensitive information.

The Committee notes the Commissioner’s arguments in favour of this proposal. We think the Commissioner should be better equipped to compel public authorities to comply with a decision notice on time, but we agree with the Scottish Government that further consideration is needed on the possible implications.

The Committee sees merit in this proposal as a way to support culture change and to improve the standing of freedom of information compliance in public authorities.

The Committee thinks freedom of information officers must have statutory authority within their organisations in order to support that objective.

The Committee refers to the evidence, discussed later in this report, on the financial memorandum regarding the resourcing of this position by public authorities.

The Committee thinks there is merit in adding Audit Scotland to the list of public bodies to which the Commissioner may disclose information.

We note Members would have opportunity to consider the breadth of the proposed measure should the Bill progress beyond Stage 1.

The Committee notes that stakeholders had mixed views on this proposal. While the Committee is sympathetic to the objective of promoting a culture of openness and accountability within public bodies, we are not convinced that this proposal is an appropriate or proportionate approach.

We consider the proposal is not sufficiently clear on the threshold for establishing intent to prevent disclosure, and we are mindful of the uncertainty that this provision could create for public authorities with regard to their records management policies.

The Committee notes the differing views as to the quantification of the costs that would be associated with the Bill. We recognise that the range of costs and the degree of certainty with which they may be estimated is not a simple exercise.

Where the Financial Memorandum identifies the potential for savings to be realised, the Committee finds that these references are largely speculative and are not supported by estimates or a timeframe over which savings may be realised. As such, the Committee does not have information available to it that would allow it to provide assurance to the Parliament that the Financial Memorandum presents a full and accurate picture of the financial implications of the Bill.

The Committee is persuaded that legislation is now needed to update the freedom of information regime in Scotland.

The current freedom of information regime was introduced at a time when information was created, managed and published in a very different way than it is now. The issues explored by the Committee on the Bill’s proposals relating to proactive publication and the replacement of the model publication scheme illustrate these differences.

However, we are not of the view that this Bill, taken in its entirety, is the correct legislative vehicle for that update. There are elements of the Bill where we do not consider the policy intention would be delivered by the Bill or where the necessity and effect of making legislative provision is not clear. These areas are identified in our recommendations throughout this report

The Committee notes the differences in cost estimates presented in the Financial Memorandum prepared by the Member and by the Scottish Government. Given the range and sizes of bodies falling within freedom of information at present, the Committee also recognises the challenges of calculating accurate estimates for both costs and savings. The Committee does not consider that the information available to it, and to the Parliament, is sufficient to be able to assess the overall potential financial impact of the Bill.

Given the questions that we consider remain to be answered and the further policy development and textual amendments that would be necessary, the Committee considers that it is highly unlikely that there is time available in the remainder of this Session for the Bill to reach a point where, subject to the agreement of the Parliament, it could be enacted.

The work undertaken by the Member in developing this Bill, alongside the evidence provided by stakeholders at Stage 1, has been valuable in highlighting that there is a need for reform of freedom of information legislation in Scotland. Freedom of information is a fundamental part of the delivery of public services and of the accountability of public bodies to the people they serve. Updating the legislation underpinning that regime is a substantial and complex endeavour and good faith efforts to do so should be recognised as such.

Overall, the Committee is of the view that the Scottish Government ought to be taking legislative action to develop an updated and forward-looking freedom of information regime, particularly given its own view that it has a “breadth of expertise and input” and “strong ministerial interest” in the designation of bodies under the FoI Act.

Yet, based on the evidence heard, the Committee notes that the Scottish Government has been slow in exercising its powers under the FoI Act. In its response to its own consultation on access to information rights, the Government indicated that it “believes that the fundamentals of the access to information rights regime… remain fit for purpose”. We are of the view that there is a fundamental conflict of interest within the institution of government when it comes to reform of the freedom of information regime.

We consider, therefore, that if the Scottish Government does not, as an institution, see the need for an updated freedom of information regime, a committee bill may be the most appropriate legislative vehicle to address the complex and important question of freedom of information reform. In making this recommendation, the Committee recognises both that it cannot commit the next Parliament to any course of action and that the work of developing such a committee bill would require significant parliamentary time and resource.

The Committee agrees with the need for freedom of information reform but, for the reasons set out in this report, we do not consider this Bill to be the most effective vehicle to deliver the necessary change. The Committee therefore does not recommend that the Parliament agrees to the general principles of the Bill.