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.

Transparency and the voluntary sector

There are currently a couple of legislative initiatives in the Scottish Parliament promoting greater transparency in government. The first are amendments to the Freedom of Information Act that would extend the scope of the Act to contractors who deliver public services. The other is the proposed Lobbying and Transparency Bill promoted by Neil Findlay MSP that would require lobbyists to register their activities.

While perhaps not the main targets of the legislation, they would both cover the voluntary sector. Incidentally that also includes trade unions like UNISON. Now you might expect openness and transparency to be an important principle for the voluntary sector and of course many organisations in the sector would agree. It is therefore somewhat surprising that the main voluntary sector lobby group, SCVO, is strongly opposed to these provisions. I suspect this opposition is driven, not by the vast majority of the sector, but by the semi-commercial interests whose income and activities have increasingly been dominated by public sector contracts.

I would argue that everyone has the right to lobby, but there is also the equally important right for the public to know who is lobbying to influence democratic decision making. On this basis special exemptions for particular categories of lobbyists or contractors should be avoided. The voluntary sector may not see themselves as lobbyists, but they are. The key principle is that if you chase the public pound you should be bound by the rules of public transparency.

The voluntary sector is responsible for delivering many public services and receives substantial public funds for doing so. For example, the Coalition of Care and Support Providers in Scotland (CCPS) claim that their combined membership, “manages a total annual income in excess of £1.3 billion (2010-11), a significant proportion of which relates to publicly funded service provision; employs approximately 45,000 staff and mobilises the support of over 7,000 volunteers in providing services.”

In a period of public sector cuts the distribution of public spending is a legitimate and significant matter of public concern. Lobbying for the delivery of public services is therefore an activity that should be transparent and open to public scrutiny. The SCVO have also argued that it may be necessary to involve the private sector in public services, which is by any standards politically controversial. It is difficult to see why lobbying for such a position should not be subject to disclosure.

Organisations that deliver public services have nothing to fear from a lobbying register or Freedom of Information. They are in receipt of public funding, are a vital part of our democracy and are key actors in public life. They are part of the political class, and in that sense they are part of the wider political culture, and bear some responsibility for the quality of our democracy. Organisations like SCVO (and in fairness trade unions) enjoy insider status with government, though even SCVO accept that no one body can easily speak for the diverse voluntary sector.

Lobbying disclosure should in principle apply to all those who seek to influence public policy, subject to de minimis levels. This also offers a way for all those concerned about the conduct of public affairs to contribute to greater transparency and public accountability.

Freedom of Information Bill

Back in Parliament today to brief MSPs ahead of tomorrow's debate on the Freedom of Information Bill. Openness and transparency in public life is the hallmark of a democratic society and Scotland has been slipping behind in FoI best practice for some years.

Our key concern is to get the scope of FoI extended to all those organisations that deliver public services. The growth of arms length organisations from councils, private and voluntary sector contractors means that there are two tier standards for the public right to know. If your service comes from a public sector provider you have the right to information. If the very same service comes from a private or voluntary sector provider, you don't. That cannot be right and needs to be changed.

I illustrated our case with our extensive FoI work on PPP/PFI. After a long battle we got much of the documentation, but not all. For example, Scottish Water and the government say key documents can't be found. However, I doubt if the contractors for the problematic sewage plants have lost their copy. This matters because as a result of our research we discovered that the taxpayer spent £2.1bn more on PFI schemes than they would have done if these projects had used conventional finance. And it's not just an historical issue. The Scottish Government has a current £2.5bn PPP/PFI programme.

Credit to Carole Ewart and the Scottish Freedom of Information Campaign for all their work on this issue. There is cross party support on this issue and Willie Rennie MSP chaired today's event. We don't always agree with the Lib Dem's these days, but they have a consistently positive record on FoI.

I do hope that the new minister, Nicola Sturgeon MSP, takes a fresh look at the government's position on this issue. They claim to support some extension to the scope of FoI, but have done nothing about it. We have had three different consultations in recent years. Now, I am not surprisingly a big fan of consultation, but we are all consulted out on this issue. Now is the time for action.

Freedom of Information

Yesterday evening I participated in a round table discussion hosted by Holyrood Magazine and the Freedom of Information Commissioner. The idea was to bring together practitioners, journalists and public authorities to discuss the practice and reform of our freedom of information arrangements in Scotland.

My own experience is that the Freedom of Information Act has changed the culture of information management in public authorities. Far more information is routinely disclosed and there is a much greater willingness to respond promptly to specific requests. Whilst that was generally accepted, journalists felt that requests were still dealt with too slowly and the loopholes in the legislation exploited when the information might lead to an embarrassing story.

One outcome of the legislation has been the creation of freedom of information specialists within public bodies. They have an important role in managing requests, chasing replies and raising awareness within their organisation. There was an interesting discussion around the relationship between the role of the press office and FoI. My own view is that FoI staff generally promote a culture of disclosure rather than simply policing the system.

Finally, we discussed the idea that fees should be introduced for FoI requests. Whilst it is understandable that public bodies should want to maximise income in the current financial circumstances, there was little support for fees. In my view FoI is an essential element of a democratic society and democracy costs. So charging is a no in my book.

A report of the full debate will appear in a future edition of Holyrood Magazine.

Freedom of Information

The Information Commissioner for Scotland, Kevin Dunion today published his annual report.

More than 1000 decisions made since he took up his post have made a huge difference to the culture of secrecy that used to pervade public service. There has been an increasing use of FoI with 73% of public authority respondents reporting that FOI requests had increased in the last year, with 38% stating that they had increased 'significantly'.

Freedom of Information legislation has been vital in improving democratic accountability. It is a key tool for members of the public, journalists and campaign organisations like UNISON. An example of how we use FoI was included as a case study in this year's report. This involved our annual survey of violence in the workplace. The information gathered has helped to develop best practice guidance and better protection in the workplace.

One of the most disappointing recent decisions was the outcome of the Scottish Government consultation on extending the FOI Act. The aim was to cover a range of additional bodies that provide important public services, including the Glasgow Housing Association, the Association of Chief Police Officers in Scotland, private prisons, leisure trusts and PFI/PPP contractors. In January 2011 the Government announced that it would not be taking designation forward, a craven capitulation to business lobbying.

The Commissioner rightly criticised that decision and points that that there is a real risk that we could fall behind other countries when our FoI regime used to be a world leader. Lets hope a new Scottish Government after May will take a different view and build on the excellent work the Commissioner and his staff do.