Access to information rights: consultation analysis

4. Developments in Information Technology - ensuring access to information rights in the face of changing modes of information use

133. This section of the consultation considered the Committee's concerns that developments in information technology, and the use of new methods of information storage and communication within public authorities may be undermining access to information rights. Central to this was the Committee's concern about the use of so called 'unofficial' platforms such as private email accounts or WhatsApp groups for the communication of information related to the work of public authorities and the possibility that use of such platforms by staff members or officers of public authorities may result in such information being overlooked by authorities when locating, retrieving and providing information in response to requests.

134. Respondents were asked to consider the following questions:

Question 14

Do you agree that updating the Section 60 Code of Practice, to provide explicit guidance on mitigating the risks associated with any use of unofficial platforms, would be the best way to provide greater assurance that authorities are fully appraised of their obligation in relation to information held on unofficial platforms?

135. There were 60 responses to this question, with 45 respondents indicating that they did agree, six indicating that the did not agree and nine indicating that they did not know/had no view. In total, 41 respondents provided reasons for their answer.

136. Respondents indicating reasons for agreement generally referred to the value clearer guidance could have in ensuring organisations are fully aware of their obligations. Some respondents saw the value of such guidance as being to discourage the use of 'unofficial' platforms whilst other respondents explained their support in terms of the value of clearer guidance about managing their use in the context of organisations' discharge of their obligations under FOISA.

137. One local authority respondent (East Renfrewshire Council) highlighted that the Code of Practice on Records Management by Scottish Public Authorities, issued by the Scottish Ministers under section 61 of FOISA could be an alternative vehicle for guidance on this issue. Another local authority (Stirling Council) also qualified its support for clearer guidance, by highlighting that any detailed guidance may become obsolete quickly due to further developments in technology. Guidance therefore needed to remain broad in nature.

138. Among those expressing disagreement, most felt that existing guidance was sufficient or that it should be up to organisations to develop their own approach in line with their business needs. One respondent (Public Health Scotland) expressed concerned that providing clearer guidance about managing the use of 'unofficial platforms' might further encourage their use. The Campaign for Freedom of Information in Scotland indicated that further guidance in the section 60 code would be insufficient and that all authorities require a 'use your own device' policy to mitigate concerns about the use of unofficial platforms.

139. Respondents who provided reasons for expressing no view generally recognised that there may be some value in providing additional guidance but also expressed reservations about how much value this would add in practice. Others felt that other vehicles might be just as appropriate, or more appropriate for providing additional guidance for public authorities and their staff. One trade union respondent (UNISON Scotland) considered that a more general effort to ensure staff members in public bodies are aware of their FOI obligations is needed, and requires to be resourced.

Question 15

Do you believe there would be value in amending FOISA to incorporate a fuller definition of the term 'information' within the legislation?

140. There were 59 responses to this question, with 27 respondents indicating they would see value in such a change, 24 indicating that they would not see value in such a change and 8 indicating that they did not know/had no view. There were 43 respondents who provided reasons for their answer.

141. Opinion on this question was therefore quite evenly split. Of those opposing change, most indicated that they considered the existing definition of information to already be sufficiently clear. This was the basic view of the Scottish Information Commissioner who expressed concern that "introducing further detail to this definition may risk creating unnecessary and unwelcome complications, potentially leading to unintended gaps where exceptions to the definition may slip through".

142. Those who indicated that they would see value in such a change generally saw this in terms of providing greater clarity to authorities and their staff. Alzheimer Scotland reflected that the adoption of a fuller definition might help to clarify for authorities that FOISA does not only apply to written information, but also to information held in other formats such as audio and video recordings. Some of those supporting change emphasised that any new definition should not narrow the scope of the definition in any way.

143. Those who provided reasons for expressing no view generally expressed uncertainty as to the value and impact of any change to the definition.

Question 16

If a definition of information were incorporated within FOISA should this definition be: 'any information in written, visual, aural, electronic or any other material form' or something else?

144. There were 43 responses to this question, of which 37 indicated their support for 'any information in written, visual, aural, electronic or any other material form' as their preferred definition, in order to mirror the existing wording of the EIRs. This included a number of respondents whose basic preference in response to the previous question was not to change the definition at all. Some of the respondents provided further comment – explaining either that they saw intrinsic value in aligning the definition with that provided in the EIRs or that they considered the suggested definition to be the widest possible.

145. Only two respondents provided detailed thoughts on how an alternative definition might be constructed. Moray Council suggested defining information as "captured data that can be read, heard or viewed; it covers all mediums whether that is electronic or hard copy (inc. paper, photographs, microform, art, historical archives etc). Data that can be interpreted is information". Scottish Enterprise suggested any revised definition may seek to move beyond describing the formats in which information may be held, to specifying what constitutes information substantively 'e.g. data, facts'.

Stakeholder discussion – Keeping Rights Fit for Purpose - Use of 'unofficial platforms'

Participants in the 'Keeping Rights Fit for Purpose' stakeholder discussion were asked to consider issues around the use of so-called 'unofficial platforms'. Specifically, participants were asked to consider the potential impact on the capacity of public authorities to locate, retrieve, and provide information in compliance with FOISA and the EIRs, and what they considered the best approach to tacking any concerns in this area.

Discussion outcomes:

There was wide agreement that "Unofficial platforms" either shouldn't be used or should only be used with caution, and that information held on them should be regarded as within scope of FOISA. However, practice is complicated by a number of circumstances, e.g. when staff leave, small charity organisations that don't have 'official platforms', i.e. where staff have to use their own personal devices for work.

Particular issues noted around 'grey areas'– e.g. at what point should a personal conversation between colleagues be considered to become a work conversation? Developments in IT functionality, such as availability of chat functions in Microsoft Teams and similar packages add to the salience of such issues.

There was a divergence of views the extent to which this issue is amenable to being dealt with by legislation. Some participants felt it could be tackled through better corporate cultures (push for integrity, clear guidance on official record, duty of candour). Some participants felt a change in the law may be excessive to tackle the issue.

There was general agreement around the need for clearer definitions.