Access to information rights: consultation analysis

3. Agility of the regime - maintaining and strengthening access to information rights in the context of varied models of service delivery

19. This section posed a number of questions to respondents relating to the Committee's concern about the agility of the regime to ensure the delivery of access to information rights in the context of varied models of public service delivery. Central to this was the Committee's concern about the impact of 'outsourcing' on access to information rights. The concept of 'outsourcing' was explained in the consultation document as referring to any instance in which a public authority enters a contract with an external provider for the provision of a service, rather than tasking its own directly employed staff with the provision of that service.

20. This section of the consultation posed 13 questions to respondents relating to the Committee's concerns and recommendations in this regard. The first ten of these related to the Committee's overarching concern about whether there are sufficient mechanisms in place to ensure the right bodies are covered by the legislation. The final three relate to more particular issues around the use of 'confidentiality clauses' and the operation of section 6 of FOISA relating to publicly owned companies.

3.1 Reflections on the agility of the access to information rights regime at present, to respond to varied models of public service delivery

Question 1(a)

Do you or your organisation have direct experience of access to information rights operating in relation to 'outsourced' services?

21. There were 56 responses to this question. Of these, 34 said they did have direct experience of access to information rights operating in relation to 'outsourced' services, 21 respondents advised they did not have such experience. One respondent said they were not sure.

22. Respondents who answered yes to having direct experience of 'outsourced' services included a number of local authorities, NHS boards and third sector bodies.

Question 1(b)

If 'yes' how would you rate your experience of access to information rights in relation to such services?

23. There were 32 substantive responses to this question. Respondents were split between advising it was 'not a problem' (14 respondents) and those who indicated it was 'somewhat problematic' (13 respondents). A further five respondents stated their experience of access to information rights in relation to 'outsourced' services was 'very problematic'.

24. Those with the greatest concerns in this area included the Campaign for Freedom of Information in Scotland, UNISON Scotland and the Scottish Information Commissioner.

"The fundamental issue in relation to access to information held by the majority of 'outsourced' services that deliver public functions and services is that those services are not, generally, directly covered by FOI law." (Scottish Information Commissioner response)

25. The Commissioner also highlighted what he viewed as an increased likelihood of a requester receiving an 'information not held' response under section 17, as public authorities, "may exercise caution when considering whether to direct a requester on to a third-party that is not covered by FOISA, given that the third-party organisation will normally face no statutory duties and responsibilities when responding to requests".

26. A lack of clarity around the term 'outsourcing' was commented on by the Campaign for Freedom of Information in Scotland. Other responses (UNISON Scotland, Common Weal) noted the difficulty experienced when seeking information from public authorities in relation to third party contractors, with some information being refused due to commercial confidentiality concerns.

27. Of the 14 respondents who answered that their experience in relation to 'outsourced' services was 'not a problem', half were local authorities. The Society of Local Authority Lawyers and Administrators in Scotland (SOLAR) also indicated that their members had not found this a problematic issue.

28. It was specifically noted by four of the 14 that they received low volumes of FOI requests in relation to 'outsourced' services and that freedom of information requirements were included within contracts. For example, Public Health Scotland advised that, "contracts exist and operational policies are applied to/from outsourced services to ensure access to such information is available as if it were an 'in house' process".

Question 2 (a)

If seeking information about a public service delivered under contract by an external provider, how confident would you be that a member of the public could use their access to information rights to seek the relevant information, by making a request directly to the public authority on whose behalf the service is being delivered?

29. A total of 57 respondents answered this question. Of these, seven indicated they were 'very confident', 26 indicated they were 'somewhat confident', seven indicated they were 'somewhat doubtful', 11 indicated they were very doubtful and a further six that they were 'not sure'. There were 48 respondents who provided reasons for their answers.

30. Among those respondents who indicated a degree of confidence about seeking information about services delivered under contract, the contractual obligations of external parties to provide information were highlighted, as were information sharing agreements.

31. The respondents who answered 'very doubtful' included the Environmental Rights Centre for Scotland, UNISON Scotland and the Scottish Information Commissioner. They expressed the view that it was unlikely a member of the public would receive the same level of access to information from a third party as they would from a public body.

32. Three respondents also highlighted potential difficulties a member of the public may encounter by not knowing the identity of the public authority who contracted out the service.

Question 2 (b)

If seeking information about an ancillary service previously delivered in house - but now delivered under contract by an external provider - how confident would you be that a member of the public could use their access to information rights to seek the relevant information, by making a request directly to the public authority to which the service is being delivered?

33. In total, 52 respondents answered this question with the split of answers being similar to 2(a). There were five respondents who indicated they were 'very confident', 20 indicated that they were 'somewhat confident', five indicated that they were 'somewhat doubtful' and 12 indicated they were 'very doubtful'. A further 10 indicated they were 'not sure'. There were 38 respondents who provided reasons for their answer.

34. Those indicating a degree of confidence included 11 local authorities and various third sector and civil society organisation including Alzheimer Scotland and the Church of Scotland.

35. For the 25 respondents indicating a degree of confidence, the overall view expressed was that contractual arrangements between authorities and external providers in relation to an ancillary service would generally include provision to protect information rights, alongside regular reporting requirements. A recurring comment amongst these respondents was that much of the information requesters might be expected to seek would already be held by the relevant public authority as the recipient of the service. Therefore providing information in response to FOI requests about an ancillary service previously delivered in house - but now delivered under contract by an external provider - was not seen by these respondents as problematic.

"The definition of 'held' in FOISA and the narrow scope of the commercial interests exemption, properly balanced with the public interest test should ensure that the public are not in any way prevented from accessing relevant information about an ancillary service." (Renfrewshire Council response)

36. The 17 respondents indicating a degree of doubtfulness were more sceptical. The Campaign for Freedom of Information in Scotland commented that external providers of public services may not gather the information listed under the Model Publication Scheme and highlighted that voluntary compliance by external providers avoids regulation as there would be no right to apply to the Scottish Information Commissioner.

37. A number of responses, with differing overall viewpoints in this section of the consultation, expressed the opinion that whether or not the service was ancillary was immaterial.

3.2 Addressing concerns about agility of the regime and loss of information rights, within the current statutory framework

Question 3 (a)

Would you welcome further assurance about the future use of the Scottish Government's section 5 power to maintain and extend access to information rights in Scotland?

38. There were 58 responses to this question, with 43 respondents answering 'Yes', three respondents answering 'No' and 12 respondents advising they were 'not sure'.

39. Those answering 'yes' covered a wide range of organisations including the third sector, academia, regulators and the National Union of Journalists.

40. The three who answered 'No' included one individual and two organisations (UNISON Scotland, Glasgow City Council).

Question 3 (b)

What, if anything, would provide you with greater assurance that the power can be used consistently to ensure coverage of the Act can keep pace with any changes in the delivery of public services?

41. There were 46 responses to this open question, providing varied comments.

42. A number of respondents mentioned the Scottish Government's previously stated intention to bring forward a paper on the future use of the section 5 power and this was viewed as a positive step. A number of third sector organisations commented that they would wish to see further clarification on the future use of this power.

43. One organisation which responded advised they would like to see greater certainty with regards to the use of the section 5 power. Their response notes that the power has not often been used, therefore they argue, because there are few examples of consultation on the issue, it is difficult to understand the principles applied in deciding on new designations under FOISA.

44. Similarly, the National Union of Journalists thought the infrequent use of the section 5 power indicates it is not the correct mechanism to continue to use in the future.

45. The Centre for Freedom of Information, University of Dundee, also noted that while in theory there was scope for a constant refreshing of the schedule 1 list, in practice this has not happened. They suggest the granting of public contracts could in future be treated as a trigger for considering the use of the section 5 power.

46. NHS Forth Valley thought it could be helpful to implement a routine timetable for the government to review the bodies which are subject to FOISA.

47. The Campaign for Freedom of Information in Scotland set out in their response that they believe the section 5 power is not fit for purpose and highlight that the power is instigated by Scottish Ministers rather than the Scottish Parliament. UNISON Scotland, who answered 'no' at question 3(a) above also indicated a clear view that section 5 is outdated, and should be replaced.

48. The Scottish Information Commissioner was critical of how the section 5 power has been used to date:

"It is my view, therefore, that the section 5 mechanism, as it is currently utilised, is not acting as an effective and responsive mechanism through which FOI rights can keep pace with changing patterns in the delivery of public services." (Scottish Information Commissioner response)

49. The Commissioner indicated a desire for a 'publicly-stated, clearly timetabled and ongoing timeline' for future consideration of extension under section 5.

Question 4 (a)

Would stronger guidance for Scottish public authorities about the status of information held by contractors, give you greater confidence that information about outsourced services remains accessible under FOISA and the EIRs, where this relates to the provision of a public service? i.e. the direct provision of a service to members of the public, for which the authority itself is commonly regarded as having ultimate responsibility.

50. There were 62 responses to this question. Of these, 48 said 'yes' (that stronger guidance would be helpful), seven said 'no' (that stronger guidance would not be helpful) and a further seven were 'not sure'. There were 50 respondents who provided reasons for their answers.

51. Those indicating that stronger guidance would be helpful included a range of Scottish public authorities, third sector and civil society organisations.

52. Respondents with this viewpoint indicated stronger guidance would be helpful in assisting both public authorities and their contractors to understand their duties and to provide additional clarity. Some indicated this would be most effective via an update of the section 60 code of practice, however, other responses voiced the opinion that this should be legislative in nature rather than through guidance only.

53. Those who indicated that stronger guidance would not be helpful included the Scottish Information Commissioner, the National Union of Journalists, the Campaign for Freedom of Information in Scotland and UNISON Scotland. These respondents generally indicated the view that stronger guidance could not be a substitute for stronger legally enforceable rights.

Question 4 (b)

Would stronger guidance for Scottish public authorities about the status of information held by contractors, give you greater confidence that information about outsourced services remains accessible under FOISA and the EIRs where this relates to the provision of an ancillary service, previously delivered in house? i.e. an internal service provided to an authority which it has traditionally tasked its own directly employed officers or staff to deliver, but has now contracted to an external provider.

54. There were 58 responses to this question. The breakdown of responses was fairly similar to 4(a), with the majority (45 respondents) answering 'yes' (that stronger guidance would be helpful), 8 respondents answering 'no' (that stronger guidance would not be helpful) and five indicating they were 'not sure'. There were 41 respondents who provided reasons for their answer.

55. Views expressed by respondents were similar to those expressed in response to 4(a), with the majority favouring stronger guidance indicating this would be helpful to bring greater clarity for authorities and their contractors. Those indicating stronger guidance would not be helpful again expressed concern about any approach which would seek to substitute strengthening of guidance for the expansion and strengthening of legal rights.

Question 5

Do you agree that it is relevant to make a distinction in guidance between public services (i.e. those provided directly to members of the public, for which the authority itself is commonly regarded as having ultimate responsibility) and ancillary services (i.e. internal services provided to an authority which it has traditionally tasked its own directly employed officers or staff to deliver, but has now contracted to an external provider)?

56. There were 57 responses to this question. Of these, 23 agreed it was relevant to make a distinction between public services and ancillary services while 19 disagreed. There were 15 respondents who indicated they were not sure on this point. There were 49 respondents who provided further thoughts on the relevance, appropriateness and implications of such a distinction.

57. Those indicating agreement thought a distinction would provide welcome clarity especially as some service providers are unlikely to have FOI experience. Such a distinction could provide guidance to the ancillary service providers outlining their obligations and responsibilities under FOISA.

58. There were respondents such as Caledonian Maritime Assets Ltd (CMAL), Highlands and Islands Enterprise and South of Scotland Enterprise who believe the distinction can already be drawn from existing legislation including the Public Records (Scotland) Act 2011.^[4]

"The distinction can already be made in practice and in guidance within the existing statutory framework. The distinction is important because it avoids disproportionate oversight of non-public records held by service providers providing ancillary services" (CMAL response)

59. Highlands and Islands Enterprise also point to Element 15 of the Model Records Management Plan (public records created by third parties). Element 15 states: "An authority's plan must include reference as to what public records are being created and held by a third party carrying out a function of the authority and how these are being managed to the satisfaction of the authority".^[5]

60. South of Scotland Enterprise also suggest there may be an opportunity to create a stronger link between the Public Records (Scotland) Act and FOISA, strengthening rights of access to information accordingly.

61. As with question 4 (b), most local authority respondents disagreed that such a distinction was important, especially for requesters. However, there were those, such as East Dunbartonshire Council, who would welcome stronger guidance as a means of ensuring consistency, particularly in relation to what is expected of service providers. For Stirling Council, the distinction between public and ancillary services was less important than a potential consideration of contract value i.e higher value contracts fall under the scope of FOISA.

62. Others who thought a distinction was not helpful included those who were of the view that the distinction is artificial (SOLAR) and that the same principles apply in law under both public and ancillary services (Glasgow City Council).

63. There was a general view among those who disagreed with the relevance of the distinction that the method of delivering a public service should not have an impact upon transparency and access to information under FOISA. Additionally, the National Union of Journalists noted that to separate public and ancillary services may suggest less public interest in the provision of the latter and they argue this is not always the case.

64. The Campaign for Freedom of Information in Scotland (CFOIS) disagreed with the examples provided within the consultation:

"The delivery of health services by NHS Boards and education services by local authorities would be clear examples of public services. The delivery of cleaning andmaintenance services within the offices of a public authority might be an example of an ancillary service"^[6]

65. CFOIS use the example of cleaning services to illustrate where there may be different interpretations over what is a public or an ancillary service. Consequently, such a distinction could be seen to be confusing to requesters. CFOIS recommend that there should be a simple process under FOISA to identify designated service providers regardless of whether they are public or ancillary.

66. The principle of 'transparency following the public pound' was highlighted by UNISON Scotland in their response and the suggestion of making a distinction between public and ancillary services risks creating a two tier approach to information rights.

Stakeholder discussion – Agility of Access to Information Rights - overarching principles

Participants in the Stakeholder discussion on 'Agility of Access to Information Rights'were asked to consider the following principle advanced by the Committee:

"the overarching principle should be that information held by non-public sector bodies which relates to the delivery of public services and/or the spending of public funds should be accessible under freedom of information legislation."

Participants were asked to consider: whether this principle was correct; how well the current access to information rights regime delivers on the principle and whether there were any gaps between theory and practice; whether participants were aware of any direct examples where requesters have been frustrated in their efforts to obtain information about services due to the delivery model of that service and what scope there is to address issues satisfactorily within the current framework.

Discussion outcomes:

There was general agreement regarding the principle that information held by non-public sector bodies which relates to the delivery of public services and/or the spending of public funds should be accessible under freedom of information legislation.

Issue is how to implement taking on board complexities, nuances and potential exceptions

Participants generally agreed that there's a need to draw a distinction between 'public function' and the 'public pound', with the former being the relevant issue here generally speaking

There was also a shared sentiment across groups that the terms used need to be defined better than they are in the principle as set out by the Committee. This was of particular importance for 3^rd sector and new private service providers

Participants highlighted some examples of where access to information has been frustrated e.g. care homes during the coronavirus pandemic, in relation to PPI and PFI contracts, as well as potential impacts of the National Care Service legislation and implementation. However there was also recognition that the participants were not requesters of information by and large and therefore were not best placed to provide detailed examples

There was also a sentiment that just because they are not necessarily aware of lots of examples that doesn't imply there is a lack of evidence of this being an issue.

3.3 Assessing the need for primary legislation

Question 6 (a)

What are your views on the introduction of a Gateway clause as a means of making the Act more 'nimble'?

67. There were 65 responses to this question. Of these, 18 were in favour of the introduction of a Gateway clause, whilst 24 were opposed. A further 23 advised they were not sure/had no view. There were 55 respondents who provided further reasons for their views.

68. Respondents who were in favour of the introduction of a Gateway clause (5 individuals, 13 organisations), were from a variety of sectors and included the Care Inspectorate, the Scottish Public Services Ombudsman, Common Weal and SHEIP – a working group of Scottish Higher Education Information Practitioners.

69. Some, such as Common Weal, indicated they would be in favour of a gateway clause without reservation. Others expressed concerns around the potential impact upon resources but were supportive, with reservations.

70. Although in favour, the need for proportionality was highlighted by a number of these respondents, particularly third sector organisations, including the Environmental Rights Centre for Scotland, who suggest a 'proportionality test' should apply with greater clarity required around the definition of 'services of a public nature'. Other respondents, including Rape Crisis Scotland, proposed the need for a clear definition of both 'public services' and 'public funds' in order to protect smaller organisations from a disproportionate financial or administrative burden.

71. The Centre for Freedom of Information – University of Dundee also thought the creation of a gateway clause would be beneficial as it would create consistency between FOISA and the EIRs.

72. Respondents opposed to the introduction of a gateway clause (2 individuals, 22 organisations) included seven local authorities, a variety of third sector organisations and the Scottish Information Commissioner.

73. Concerns were raised about a potential 'broad brush' approach to implementing any gateway clause by respondents including Voluntary Health Scotland. Whilst in favour of measures to extend FOISA to non-public bodies that carry out public functions, the Scottish Information Commissioner expressed opposition to a "wide ranging, amorphous gateway clause". In his response to this question, the Commissioner outlined a number of potential problems with the implementation of a broad gateway clause including a lack of certainty, lack of manageability and lack of control.

74. The Commissioner's response expressed concern that that a wide-ranging gateway clause would, "require organisations to reach their own initial conclusions on whether or not FOI law applies to their organisation, with an associated likelihood that organisations which deliver similar services may reach very different conclusions".

75. His response also highlighted potential challenges for both individuals and the Commissioner, in terms of knowing with certainty which organisations are covered by the legislation and the potential for these to have a detrimental impact on the practical application of the law.

76. Others also thought a gateway clause would cause an unnecessary degree of uncertainty compared to the use of section 5 to extend coverage.

77. Some third sector respondents voiced concern that a gateway clause would place a significant strain on resources in a sector where bodies often have limited funding.

"the overwhelming message from the voluntary sector is that any potential gateway clause that extends FOI in a broad, one-size-fits all manner to voluntary organisations is not feasible or realistic, as it fails to deliver targeted and proportionate regulation across a unique sector." (SCVO response)

78. Similarly, Victim Support Scotland (VSS) suggest that, in the current challenging financial climate, it is unlikely that voluntary organisations would receive further funding to cope with the any additional financial or administrative burden if subject to FOISA. VSS would prefer to explore alternative means of extending coverage in order to reduce the potential impact on smaller voluntary organisations.

Question 6 (b)

If a Gateway clause were introduced into the legislation, what would your views be on a specific exclusion for small and medium-sized enterprises (SMEs)?

79. There were 62 responses to this question and there was an even split between those favouring and those opposing a specific exclusion for SMEs with 22 responses supporting such an exclusion and 22 opposing. A further 18 answered that they were not sure/had no view. There were 49 respondents who provided further reasons for their view.

80. Those who provided reasons for supporting an exclusion for SMEs generally expressed concern about the proportionality of extending FOISA to smaller organisations by this means of a gateway clause. Some of these respondents expressed concern that the administrative burden of becoming subject to FOISA might discourage SMEs from bidding for public contracts.

"In introducing duties on SMEs in relation to FOIs, there is a risk that some businesses with limited capacity will be reluctant to enter into contracts with public bodies. For this reason, we consider it appropriate for an exclusion for SMEs to be applied to any Gateway clause." (Visit Scotland response)

81. Most of those who provided reasons for opposing an exclusion for SMEs reflected the view that the accessibility of information about public services should not be determined by the size of the provider. A number highlighted that there are already a significant number of small-medium sized organisations which are designated as Scottish public authorities for the purposes of FOISA, including a number which would meet the definition of an SME.

"It is not clear why the size of the service delivery vehicle should be an issue. Some public services (e.g. primary care providers) would meet the criteria for an SME.

We would suggest that the need to provide for information rights is part of the tender and the resource for the outsourcing should include that this can be met. What may be needed to support this is access to support and guidance for SMEs who may not receive many requests for information." (Scottish Public Services Ombudsman)

82. Whilst opposed to a gateway clause, the Scottish Information Commissioner also expressed concern about the idea that organisations should be excluded from FOISA on the basis of their size – taking the view that organisations should be considered for designation under FOISA on the basis of the functions or services they deliver, and pointing out that there are already many small and medium-sized organisations subject to the legislation.

83. UNISON Scotland emphasised the need for a regulatory level playing field between organisations bidding for public contracts, and regarded a specific exclusion for SMEs as contrary to this,

84. Some opposing an exclusion recognised concerns about proportionality, but took the view that a specific exclusion for SMEs was not the best approach:

"It is understandable that the Scottish Government would want to ensure that SMEs are not disadvantaged compared to larger businesses when they are seeking to engage with public contracts. However, a specific exclusion of SMEs would infringe upon the overarching principles of transparency and accountability in public matters that FOI(S)A is seeking to achieve." (Centre for Freedom of Information in Scotland – University of Dundee response)

Question 6 (c)

If a Gateway clause were introduced into the legislation, what would your views be on a specific exclusion for third-sector organisations? Please provide more information about your views below, including your thoughts on whether a distinction should be made between large and small/medium sized third sector bodies (e.g. those employing fewer than 250 staff members).

85. There were 66 responses to this question. Again, there was a fairly even spread of responses with 26 answering that they would be in favour of a specific exclusion for third-sector organisations whilst 22 opposed this. A further 18 respondents answered that they were not sure or they had no view. There were 56 respondents who provided further reasons for their view.

86. Those supporting an exclusion for third sector organisations from any gateway clause generally cited similar concerns about proportionality and administrative burden to those advanced in relation to SMEs in responses to 6(b) (above). However, some additional considerations were advanced by a number of respondents representing a third sector perspective. A number of organisations (LGBT Youth Scotland, Scottish Women's Aid, Rape Crisis Scotland) raised concerns about the risk of FOI being used to harass or hinder the work of third sector organisations, by those hostile to their aims. Third sector respondents also emphasised the pressured resource context in which many third sector organisations operate.

"At present, most third sector organisations are operating under immense pressure following the pandemic and now the cost-of-living crisis. We continue to hear of voluntary organisations losing funding, struggling to keep the doors open and having to reduce services due to the operating environment. Many have limited resources, no access to legal support or data protection officers and will be unfamiliar with this legislation. Any clauses to include the third sector would need to be coupled with ongoing training and resources to ensure the sector is brought up to speed on the duties."(Voluntary Health Scotland response)

87. Some respondents favouring a specific exclusion for third sector organisations from any gateway clause qualified their response by suggesting this should perhaps apply only to organisations below a particular size, or delivering services on a short/medium term basis:

"We believe that organisations which could be considered for this exclusion would be those who employ less than 250 people and/or have an annual turnover of less than £500,000. We also believe that exemptions should be considered for third sector and voluntary organisations who are only contracted to provide outsourced public services for a limited period (24 months or less.)"(Victim Support Scotland response)

88. Those opposing a specific exclusion for third sector organisations generally made similar points to those made in relation to SMEs in response to question 6(b) i.e. that information rights should depend on the nature of the function or service being delivered, not on the type of organisation delivering them. However, some respondents (Aberdeenshire Council, National Union of Journalists) indicated that they could see merit in excluding smaller organisations/those with small contracts.

89. Some respondents opposing an exclusion for third sector organisations highlighted that some third sector organisations are large, and significant providers of public services:

90. Third sector organisations vary dramatically in income, staffing, purpose and in terms of whether they deliver public services.

"Historically Non-Governmental Organisations (NGOs) did not receive any or only a small proportion of their income from government or the public sector but the relationship in some cases is now blurred.

OSCR usefully provides a list of the top 300 income earners which are charities. Some are already covered by FoISA such as Universities, colleges, Culture and Sport Glasgow (Leisure ALEO), Historic Environment Scotland and Wheatley Homes Glasgow Limited (RSL). Income to charities can be tiny and immense such as £95,331,000 which is associated with one charity."(Campaign for Freedom of Information in Scotland response)

91. A number of respondents who either said they did not know/had no view or who did not directly address the question around a specific exclusion made wider points about the proportionality of extension of FOISA in the third sector.

92. The Scottish Council for Voluntary Organisations (SCVO) emphasised the need to avoid placing unnecessary burdens on charities:

"…the overwhelming message from the voluntary sector is that any potential gateway clause that extends FoI in a broad, one-size-fits-all manner to voluntary organisations is not feasible or realistic, as it fails to deliver targeted and proportionate regulation across a unique sector…Policymakers must develop tailored solutions that have a clear purpose to ensure that voluntary organisations continue to play their part in access to information rights".(SCVO response)

Question 7

What are your views on the desirability of broadening the section 5 power to enable Scottish Ministers to extend FOISA to a wider range of bodies? Please provide more information about your views, including any thoughts you have on how a broadened section 5 power might operate.

93. There were 65 responses to this question. Of these, 32 respondents answered that they supported broadening the section 5 power to enable Scottish Ministers to extend FOISA to a wider range of bodies, 10 indicated that they would be opposed to this while 23 stated they were not sure/had no view. There were 43 respondents who provided further information about their views.

94. Those who supported broadening the powers generally regarded this as having value in enabling the powers to be used somewhat more widely, noting the increase in the scope of access to information rights this could bring. A number of respondents (Scottish Information Commissioner, Campaign for Freedom of Information in Scotland, Centre for Freedom of Information – University of Dundee, National Union of Journalists) expressed a clear view that the section 5 powers have been underused to date. Some of these, whilst supporting broadening of the power nevertheless expressed scepticism about whether this would truly address the root issues:

"At the general level, broadening the section 5 powers would have a benefit in the Scottish Government's ability to denote a body as a public authority. However, as noted earlier, the problem encountered in the (lack of) use of section 5 powers is not their scope but rather the lack of political will to use these powers. Broadening the section 5 powers will not by itself address this issue." (Centre for Freedom of Information – University of Dundee response)

95. The Campaign for Freedom of Information in Scotland particularly highlighted its concern that the power to initiate section 5 designation sits only with Ministers, and not with the Scottish Parliament.

96. However, nine of the respondents supporting change, representing a range of public and third sector respondents, also expressed some degree of caution about broadening, emphasising the need to have due regard to proportionality in future use of the power:

"…it is possible that broadening the existing section 5 power to extend FoISA represents a more proportionate approach. This would introduce a degree of flexibility and discretion, where relevant circumstances can be considered in their own context, that wouldn't be available through the gateway clause proposal. We would again reiterate our consistent position that there must be careful consideration given to the capacity of third sector organisations to manage formal statutory duties under FoISA". (Health and Social Care Alliance Scotland response)

97. Most of those expressing opposition to the change cited concerns about proportionality and the potential impact on private and third sector partners of Scottish public authorities of becoming designated as Scottish public authorities in their own right under FOISA:

"being subject to FoISA would place an additional financial and administrative burden on third sector organisations, many of whom are already facing significant budget and resource constraints…the third sector is a hugely diverse sector with a range of organisations of varying sizes and so it would be inappropriate to treat it as a uniform entity". (Obesity Action Scotland and the Royal College of Physicians and Surgeons of Glasgow response)

98. A number of respondents who indicated they did not know/were not sure or who did not directly answer the question also made comments. A number of these (Children 1^st, SFHA, SCVO, Scottish Community Alliance) expressed concerns about proportionality and the potential impact of designation on third sector bodies. Others (Law Society of Scotland, SOLAR, Dumfries & Galloway Council) expressed doubt about whether such change would truly add any value to the existing breadth of the power. UNISON Scotland had doubts about the adequacy of the approach – preferring more fundamental change to the way bodies become subject to FOISA.

Question 8 (a)

What are your views on the necessity of amending legislation to provide a clearer legislative steer about when information held by contractors about the delivery of public services (i.e. any service provided directly to members of the public, for which the authority itself is regarded as having ultimate responsibility) is to be considered 'held' by the contracting authority for the purposes of FOISA and the EIRs? Please provide more information about your view, including any thoughts you have on how any such approach might work.

99. There were 61 responses to this question, with an approximately equal split between those who do consider it necessary to amend the legislation (21 responses), those who do not (19 responses) and those who answered the were 'not sure/had no view' (21 responses). There were 44 respondents who provided further comment on their views.

100. From those in favour of amending the legislation, the view that this would provide greater clarity and increase transparency around the use of public funds, came across strongly in the responses. Others, such as East Dunbartonshire Council, thought amending the legislation would provide a useful 'safety net' in addition to guidance provided to contractors. UNISON Scotland noted they would be keen to see a broader definition of 'public authorities' under section 3 of FOISA to cover publicly funded services, in order to provide what they described as 'a consistency in designation'.

101. The majority of those holding the opposite view, that it is not necessary to amend the legislation, mentioned that they thought the current legislation was sufficient (12 of 19 responses) although some noted that improved guidance would be welcome. Clarity in contracts regarding FOISA again emerged as a preferred option for this group over amending legislation.

102. Those who believed it is not necessary to amend the legislation included the majority of local authority respondents, Community Pharmacy Scotland, Scottish Enterprise, Public Health Scotland and Homes for Scotland and SOLAR.

Question 8 (b)

What are your views on the necessity of amending legislation to provide a clearer legislative steer about when information held by contractors about the delivery of ancillary services previously delivered in house (i.e. any internal service within an authority which it has traditionally tasked its own directly employed officers or staff to deliver, but has now contracted to an external provider) is to be considered 'held' by the contracting authority for the purposes of FOISA and the EIRs? Please provide more information about your view, including any thoughts you have on how any such approach might work.

103. There were 58 responses to this question. As with question 8 (a), there was an approximately even split between those who considered it necessary to amend the legislation (20 respondents), those who did not consider it necessary (17 respondents) and those who stated they were 'not sure/had no view' (21 respondents). There were 38 respondents who provided further comment on their views.

104. On the whole, respondents provided answers which were similar to those they submitted for question 8 part (a), with many referring to the previous question for this answer.

105. Some of those respondents who considered it necessary to amend the legislation commented on whether a distinction between public facing and ancillary services was helpful.

"…the artificial distinction between public facing and ancillary services goes against the principles of Freedom of Information. We support a gateway principle of transparency following the public pound. We agree with the PAPLS committee view that "that the overarching principle should be that information held by non-public sector bodies which relates to the delivery of public services and/or the spending of public funds should be accessible under freedom of information legislation." This is not the case under FOISA and we believe that it is both appropriate and urgent to amend the legislation accordingly". (UNISON Scotland response)

106. Of the 17 who responded saying they do not consider it necessary to amend the legislation, six specifically noted that more explicit guidance could be helpful.

Question 9

Do you have other thoughts on how the Committee's general concern about the agility of the legislation, in terms of its ability to keep pace with developments in the way public services are delivered, might be addressed?

107. There were 43 respondents who provided some form of comment in response to this question. There were a variety of views, including those who believed there was sufficient flexibility within the current legislation.

108. The need for greater proactive publication was commonly raised in responses. Another theme was the need for the Scottish Government to give due consideration to proportionality and the unintended impact upon the third sector and front line services if a broad approach is taken to amending FOISA.

109. For example, the Health and Social Care Alliance warned of a potential 'chilling effect' where policy development is hampered by a fear that discussions will be made public. Others thought a greater focus should be on the potential effects of any change in legislation on FOI practitioners and smaller organisations and whether additional funding would be available to cope with the administrative burden.

110. Taking a different view is the Campaign for Freedom of Information in Scotland, who argue radical reform is needed and point to the former Scottish Information Commissioner's 2015 report, 'FOI Ten Years On -Are the Right Organisations Covered?' to suggest this has been a long standing issue.^[7]

111. The Scottish Information Commissioner outlined his proposal for a greater role for the Scottish Parliament in the extension of FOISA, which he envisages as, supplementing and complimenting the current powers that Ministers have under section 4 and section 5.

"An appropriate Bill could be introduced to enable the Scottish Parliament to make revisions to Schedule 1 to FOISA. The combination of this and section 5 would enable both Ministers and the Scottish Parliament to play a key role in this important area. Such a Bill could also consider introducing a requirement for a review of the legislation allowing the Scottish Parliament to consider further updates to Schedule 1 on a periodic basis – e.g. every five years. Such a measure would enable the Parliament not only to ensure that FOISA is 'fit-for-purpose' for today's society, but also that it can be 'future-proofed' to meet the challenges of tomorrow." (Scottish Information Commissioner response)

Stakeholder discussion – Agility of Access to Information Rights – possible legislative change

Participants in the Stakeholder discussion on 'Agility of Access to Information Rights'were asked to consider whether there is a need for changes in primary legislation to address concerns about the agility of access to information rights. They were asked what they saw as the opportunities and challenges associated with each of the broad approaches (instituting 'gateway clause', broadening section 5 power, or providing clearer legislative steer on information 'held on behalf') considered in the consultation and which of these was the most promising/least problematic overall.

Discussion outcomes:

There was disagreement among participants regarding the need for legislative changes with some arguing strongly in favour of this and others against, instead arguing for strengthening current arrangements or using secondary legislation

Nonetheless all agreed that there should be the same level of transparency expected irrespective of which type of organisation is delivering a public function

Some participants noted that the existing legislation was rather old in the face of advances in technology

There was some concern around the breadth of any proposed "gateway clause", particularly on burden to identify, support and prepare organisations in advance of the change. Targeted support showed real benefit when e.g. registered social landlords were brought under FOI. It was felt that change could create a lot of work for the

Scottish Information Commissioner (in terms of the need to support authorities) but that it may be possible to scope out the need for this, using existing information on contracts for public services.

Participants reflected on how private sector organisations would fund new FOI obligations. It was noted that when FOISA had been introduced, FOI was intended to be incorporated into business as usual costs rather than being funded separately. However, doing this with private sector organisations doesn't avoid there being costs - if FOI makes it more costly to deliver public services then contracts will become more expensive, or suppliers will not bid.

There were differing views on whether organisations generally receive requests in proportion to their size

There was a broad discussion about possible alternative approaches. However, participants felt that to understand the correct solution would require a much better understanding of the scale of the problem, i.e. how many public services are contracted out to how many non-public body organisations.

3.4 Additional issues concerning agility of FOISA in the context of varied models of public service delivery (1) (confidentiality clauses)

112. Questions 10 and 11 considered the Committee's recommendation that the Scottish Government consult on amending FOISA to prevent reliance on confidentiality clauses between public authorities and contractors providing public services. The consultation paper explained that this issue – about the effect of Scottish public authorities entering legally binding confidentiality agreements with contractors - was distinct from the wider provisions within FOISA intended to allow authorities to take account of the legitimate commercial interests of third parties.

Question 10

Do you have any experience of a confidentiality clause agreed between a Scottish public authority and its contractor - as opposed to a wider concern to respect commercial interests - acting as a barrier to the release of information under FOISA?

113. There were 55 responses to this question with a majority (34 responses) indicating that they were not aware of any instances where such a confidentiality clause acted as a barrier to the release of information under FOISA. Eight respondents indicated they were aware of at least one instance while a further 13 answered that they 'did not know/prefer not to say'. There were 28 respondents who provided further reflections on this question.

114. Local authority respondents tended to emphasise how, in their experience, confidentiality clauses in contracts did not impact upon the release of information under FOISA. They were not treated as a justifiable means for withholding information, as opposed to valid exemptions in relation to commercial confidentiality.

115. In particular, North Ayrshire Council points to section 36 of FOISA (confidentiality) as a means of striking the correct balance between the duty to release and competing rights to confidentiality.

116. The smaller number of respondents who answered that they were aware of an instance of a confidentiality clause included the Scottish Information Commissioner, the Scottish Public Services Ombudsman and one local authority.

117. There was a view among many respondents that awareness should be raised in relation to the current legislation if it is felt confidentiality clauses are being mis-used to withhold information under FOISA.

Question 11

Do you favour amending FOISA to prevent Scottish public authorities from relying on confidentiality clauses with contractors as a basis for withholding information? Please explain your reasons for either supporting or opposing such a change or your reasons for being unsure.

118. There were 61 responses to this question. There was an approximately even split of views with 22 respondents advising they were in favour of making this amendment while 21 indicated they were not in favour and 18 answered they 'did not know/had no view'. There were 44 respondents who provided comments explaining their reasons further.

119. Those in favour of the amendment were from a mix of sectors and comprised seven individuals and 15 organisations. The organisations included Highlands and Islands Airports Ltd, the National Union of Journalists a housing association and a local authority.

120. The Scottish Information Commissioner is in favour of making such an amendment noting the following exemptions which would capture genuinely sensitive information shared between a contractor and a public authority:

Section 30(c) – which enables information to be withheld where disclosure would be likely to substantially prejudice the effective conduct of public affairs

Section 33(1)(a) – which enables information to be withheld if it constitutes a trade secret

Section 33(1)(b) – which enables information to be withheld where is disclosure would be likely to substantially prejudice a commercial interest

Section 38(1)(b) – which protects personal information

Section 39(1) – which enables information to be withheld where disclosure would be likely to endanger the health or safety of any individual.

121. The Commissioner also highlighted the fact the public authorities are already discouraged from entering into confidentiality agreements under the section 60 Code of Practice, although they are not expressly prohibited.

122. Those not in favour of making the amendment were comprised of the majority of local authority responders and legal representatives including Shepherd and Wedderburn LLP, Kennedys Scotland LLP and SOLAR.

123. Of those not in favour, reasons included: the section 60 guidance is clear in discouraging the use of confidentiality clauses and that it does not appear that public authorities are relying on such clauses to withhold information.

Stakeholder discussion – Agility of Access to Information Rights – Transparency, confidentiality and legitimate commercial interests

Participants in the Stakeholder discussion on 'Agility of Access to Information Rights'were asked to consider how well the current access to information rights regime balances the need for openness with the protection of legitimate commercial interests. In that context they were asked about the experiences of requesters of information, Scottish public authorities and their partners/suppliers in this regard, the salience of the particular issue about use of confidentiality clauses and whether a prohibition on such clauses– along the lines of the Irish model – would be proportionate and desirable.

Discussion outcomes:

Participants discussed some examples where greater transparency around contracting might have bought benefits. The collapse of construction and facilities management company Carillion and the Campaign for Freedom of Information in Scotland's difficulties in obtaining a list of publicly owned companies were both discussed in this regard.

There was agreement that use of confidentiality clauses was not the norm, but there was divergence of views as to whether they could ever justifiably be used

Participants expressed keenness to understand more about the practical implications of the approach in Ireland and what learning could be drawn from this.

3.5 Additional issues concerning agility of FOISA in the context of varied models of public service delivery (2) (publicly-owned companies)

124. Questions 12 and 13 related to the Committee's recommendation that the Scottish Government should consult on amending FOISA to ensure that companies wholly owned by a combination of authorities are subject to FOISA. The consultation paper set out the Scottish Government's understanding that companies wholly-owned by a combination of authorities are regarded as 'publicly-owned companies' in terms of section 6 FOISA – and are therefore have the obligations of Scottish public authorities in their own right, under the law. However, this would not appear to apply where one of the co-owners is the Scottish Ministers.

125. The Scottish Government has accepted in principle that this is anomalous, and an unintended consequence of the structure of section 6.

Question 12

Are you aware of any specific instances where access to information through FOISA has been frustrated as a consequence of the current structure of the section 6 provisions?

126. This question received a total of 52 responses. Five respondents answered that they were aware of such an instance (where access to information has been frustrated) and 38 not aware of any instances. A further nine respondents answered the 'did not know/would prefer not to say'. There were 14 respondents who expanded on their answer in detail.

127. Those who were aware of such an instance where access to information through FOISA has been frustrated as a consequence of the current structure of the section 6 provisions comprised: a local authority, the Scottish Information Commissioner, Common Weal, the Campaign for Freedom of Information in Scotland and UNISON Scotland.

128. The Campaign pointed to their briefing on this subject and explained the difficulties they have faced in finding the names of companies wholly owned by designated bodies.

129. The Scottish Information Commissioner suggested there should be a duty to notify his office when a new publicly-owned company is established:

"…it may be appropriate to consider an amendment to section 6 to include a duty to notify the Commissioner whenever a wholly publicly-owned company is established, liquidated or dissolved, or where the ownership status of a publicly-owned company changes, bringing it outside (or inside) the scope of FOISA." (Scottish Information Commissioner response)

130. There were a variety of organisations (30 responses) and eight individuals who answered that they were unaware of any such instances of access to information being frustrated as a consequence of the current structure of the section 6 provisions. The organisations included legal bodies, local authorities, civil society and the third sector. Further details or comment on this answer was limited from this group.

Question 13

Do you agree that the wording of section 6 of FOISA should be amended so as to ensure all companies wholly-owned by any combination of schedule 1 authorities, including the Scottish Ministers, fall within the definition of a 'publicly-owned company'? Please explain your reasons for either supporting or opposing such a change or your reasons for being unsure.

131. There were 56 responses to this question. Most respondents were clearly in favour of making this change with 38 respondents answering 'yes'. Only two respondents answered that they would not be in favour of making this change. 16 respondents answered 'I don't know/have no view'. There were 29 respondents who explained their reasons in greater detail.

132. Those in favour represented a range of organisations. Those who provided reasons for their view generally expressed the opinion that the change would be a sensible measure to ensure there are no unintended gaps within coverage of FOISA. Seven respondents specifically referred to the benefit of change in producing greater legal clarity. Those opposed to the change did not set out any reasons in support of their views.