Revamped FOI laws needed, MSPs report

Scotland's freedom of information laws need to be brought up to date to reflect changing means of communication within public bodies, a committee of MSPs has reported today.

In a post-legislative scrutiny report, Holyrood’s Public Audit Committee says the Freedom of Information (Scotland) Act (FOISA) has improved the transparency and accountability of public bodies, but that more needs to be done to keep pace with the changing nature of public service delivery, new forms of communication and the way in which the public accesses information. The legislation needs to be updated to reflect these developments.

It calls on the Scottish Government to consult on proposals including extending the Act to all bodies in receipt of significant public funds. There may also be merit in amending legislation to provide clarity on the meaning of "information", and to make it more explicit that communications, official or unofficial, relating to official business are all in scope, whether by minutes from ministerial meetings, Whatsapp, text mges or private emails.

The committee is clear that there should be no deliberate attempts to evade FOISA by failing to record information. Having clear definitions of what constitutes “information” would help to reduce the risk of this happening.

Among other proposals for Government consultation, the committee suggests:

• a "factors" approach based on functional tests – e.g. quantifying the degree of public interest in the function/considering the cost to the public purse;
• introducing a "gateway clause", which would automatically bring those elements of organisations fulfilling certain criteria within the scope of FOISA;
• a new statutory code to publish information;
• requiring certain key information, such as minutes of ministerial meetings, to be recorded;
• preventing reliance on confidentiality clauses between public authorities and contractors.

Acting convener Anas Sarwar MSP commented: "It’s important to acknowledge that this report was agreed by the committee before the outbreak of COVID-19 in Scotland. It contains important recommendations about how we believe the framework around freedom of information in Scotland must change in order to remain relevant to the changing nature of public service delivery, new forms of communication and the way in which the public access information.

“The Committee fully recognises the current pressures placed on public services amidst the global pandemic, but FOI remains important, even during these trying times. We will consider the impact of amendments made to FOISA as part of the coronavirus emergency legislation in due course.”

Those amendments controversially extended the deadline for public bodies to respond to FOI requests from 20 to 60 days, to allow authorities to prioritise other areas.

Mr Sarwar added: “Legislation must be robust, clear and enforceable. We heard in our evidence sessions suggestions of a shift in recent years in the level of information being routinely recorded in connection with official public business.

“We are absolutely clear that there should be no deliberate attempt to evade FOISA. Consideration should also be given to amending the legislation to make explicit that tools such as WhatsApp, texts and ministerial private email accounts are covered by FOISA.

“We’re also concerned at the slow pace by which organisations have been designated under the Act. This suggests the legislation is not nimble enough and we would like to see changes made to address this.”

Click here to view the committee's report.

• Latest: Opposition parties today forced the reversal of the extended time limit for responding to FOI requests, by amendments at stage 2 of the Coronavirus (Scotland) (No 2) Bill.