Freedom of Information and democracy

I was speaking at an event hosted by the Jimmy Reid Foundation on the reform of Freedom of Information (FoI) in Scotland last night. Topically in the news this week with The Herald publishing a secret register of Scottish Ministers' declaration of interests. Yes, a secret declaration which tells you all you need to know about the culture of FoI in Scotland. And, of course, the publication of Matt Hancock’s Whats App messages, which illustrates why FoI has to evolve with new methods of communication.

Katy Clark, MSP was talking about her proposal for a bill to reform Freedom of Information legislation in Scotland, including to:

·      extend coverage to all bodies delivering public services, services of a public nature and publicly funded services

·      create a role of Freedom of Information officer

·      increase the proactive publication of information

·      improve enforcement where necessary

·      and improve compliance with human rights law.

 

Carole Ewart, Director of the Campaign for Freedom of Information in Scotland, gave us an overview of the development of FoI in Scotland. She also highlighted the latest in a long line of Scottish Government consultations on reform, none of which have made the step changes we need. She pointed to a succession of research, reports, campaigns and a Parliamentary inquiry report of May 2020, which concluded, “There is a broad consensus that FOISA has brought significant benefits …. However, witnesses have identified a number of areas for improvement, both in terms of the legislation itself and in its implementation.”

 

The key point in my contribution was that public access to information is not simply a legal duty – it is a fundamental part of our democracy. I particularly welcome the proposal in Katy’s bill to extend the scope to all bodies delivering public services. This is a long-standing UNISON and trade union ask supported by public opinion. Successive Scottish Information Commissioners have said that Section 5 powers to designate additional bodies have been “woefully underused” and called for immediate steps to protect FOI rights from the damage caused by the outsourcing of important public services.

 

Legislative change is vital, but we also need to make a culture shift away from regarding FoI as a matter of legal compliance to understanding it also as a vehicle for community empowerment and development. This means properly resourcing the Commissioner’s office to deal with appeals and promote best practice. That is also true for FoI staff in public bodies, particularly in local government subject to disproportionate funding cuts. I did a survey of FoI staff for UNISON a few years back, which highlighted:

·      Rising request levels and fewer staff.

·      Poor awareness in the organisation of FoI duties.

·      Resistance from some managers.

·      Limited capacity of colleagues to respond.

·      Poor structure of requests.

 

This is reflected in my experience as a user of the system. In the past year, I have done several large-scale FoI requests across most of the public sector. Some public bodies did not respond on time – or at all. Others used delaying tactics, seeking clarifications or redacting in an overly legalistic way. In fairness, several went further than the legislation in answering questions that were strictly outside the legislation. When I was preparing for one major survey, I was surprised at how difficult it was to find the FoI officer on websites. It was rarely on the home page, and searches flagged up lots of detail but not the all-important FoI page with the publication scheme.

In summary, I welcome Katy Clark’s proposed Bill. Legislation is an important driver of change in itself, but also because it can encourage culture change. There needs to be greater recognition of FoI as a public duty, building organisational capacity, transparency and stronger publication schemes. If you care about transparency and our democracy, please respond to Katy Clark’s consultation.