Access to information rights in Scotland: consultation

2. Introduction

This consultation follows the work of the Public Audit and Post-legislative Scrutiny Committee (PAPLS) in the fifth session of the Scottish Parliament, to undertake post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002 (FOISA).

The Committee's report was published on 19 May 2020.[1] The Scottish Government provided its formal response to the Committee's report on 25 February 2021.[2] In that response the Government accepted the Committee's central recommendation that there should be a consultation to seek the views of a wider set of stakeholders on the need for future legislative change, taking the Committee's recommendations as its starting point.

The consultation is split into four sections, reflecting the themes of the Committee's report:

• Agility of the regime – maintaining and strengthening access to information rights in the context of varied models of service delivery (Q1 - Q13)
• Developments in Information Technology – ensuring access to information rights in the face of changing modes of information use (Q14 - Q16)
• Improving proactive publication – promoting openness as 'business as usual' in a digital age (Q17 - Q20)
• Technical and other issues – ensuring the Act remains fit for purpose (Q21 - Q31)

2.1 Background

FOISA came into force on 1 January 2005. The introduction of FOISA - together with its sister information rights regime, the Environmental Information (Scotland) Regulations 2004 (EIRs) - gave everyone in Scotland and beyond substantially increased rights to access information held by government and public services in Scotland. FOISA provides a statutory right for any person to request information from a Scottish public authority, and to be provided with that information. Scottish public authorities can only withhold information if one of a limited number of exemptions applies. A similar, but distinct regime relating specifically to environmental information, is provided by the EIRs.

Both FOISA and the EIRs provide rights of review and appeal to requesters so that where a requester is dissatisfied with the handling of their information request they can require the authority to carry out an internal review. If the requester remains dissatisfied following the conclusion of the review, they have the right to appeal to the Scottish Information Commissioner (the Commissioner). Both regimes also place expectations on public authorities in relation to the proactive publication of information about their work. The Commissioner plays a crucial role in overseeing and enforcing compliance with the legislation.

When considering possible future changes to FOISA it is necessary to be mindful of any impact on the operation of the EIRs. The EIRs are based on the provisions of the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation and Access to Justice in environmental matters (the Aarhus Convention) signed by the UK in 1998 and give effect to Aarhus-based EU Directive 2003/4/EC on public access to environmental information. The EIRs therefore are rooted in international agreements regarding public access to environmental information.

The Scottish Government fully supports such agreements, and recognises the importance of adhering to Europe-wide standards in respect to access to environmental information. We are keen also to learn from the experience of other jurisdictions in Europe and the wider world to inform the development of access to information rights in Scotland more widely.

The access to information rights provided by FOISA and the EIRs are broadly similar to those provided by the equivalent UK legislation - the Freedom of Information Act 2000 (the UK Act) and Environmental Information Regulations 2004 (the UK EIR regulations) - which apply to public authorities in England, Wales and Northern Ireland and to public authorities with reserved (i.e. non-devolved) functions in Scotland. Whilst there are some notable differences, which are generally considered to make the Scottish regime more rigorous in particular respects, discussions around the development of access to information rights in the rest of the UK nevertheless have some applicability to the Scottish context.

2.2 Post-legislative scrutiny

The PAPLS Committee took evidence from a number of stakeholders with an interest in the functioning of FOISA, over the course of 2019. These included journalists, activists, organisations representing civil society and the voluntary sector, and representatives of various public sector organisations. The Scottish Government submitted its own written evidence and the former Minister for Parliamentary Business and Veterans provided oral evidence to the Committee on 19 December 2019. The Commissioner also provided detailed written and oral evidence to the Committee.

The Committee's report was published on 19 May 2020.[3] The Scottish Government provided its formal response to the Committee's report on 25 February 2021.[4] In that response the Government accepted the Committee's central recommendation that there should be a consultation looking at the case for future legislative change, and taking the Committee's recommendations as its starting point.

With the exception of a number of specific technical changes suggested to the Committee in the Commissioner's evidence, the Committee made relatively few definitive recommendations for specific changes to the legislation. Rather, it highlighted a number of areas where it had concerns about the real-world operation of FOISA, and whether the legislation remained fit for purpose. The most fundamental of these related to the Committee's concern that the legislation had not, in the Committee's view, kept pace with changes in the nature of public service delivery. In that context the Committee was concerned that an insufficient range and number of bodies were subject to the legislation.

The Committee also considered whether the legislation had kept pace with developments in information technology, whether it had led to sufficiently robust approaches to proactive publication and whether other technical changes were required to ensure the Act remained fit for purpose.

2.3 Scottish Government position

The Scottish Government regards FOISA as a fundamentally robust and internationally well-regarded piece of legislation. It is the longstanding position of the Scottish Government that we seek to operate within FOISA, rather than proposing significant changes to it, but that we are open to adjusting the regime where it is necessary and sensible to do so.[5] We therefore approach this consultation with an open mind, but also with a clear view that the case for any new primary legislation must be thoroughly tested - and should only be considered where there are no satisfactory routes for improving the operation of the information rights regime within the current statutory framework.

This consultation is principally a vehicle for engagement with communities and interested stakeholders in Scotland about the future development of the access to information rights regime. It is aimed at gathering further views on a range of distinct areas highlighted by the Committee. We have therefore not completed detailed impact assessments to accompany this consultation. However, whether developing new policy within the current statutory framework or if bringing forward specific proposals for legislative change in the future, it will be necessary to consider fully the impact of change on people, communities and organisations in Scotland.

Given the significance of access to information rights for the realisation of wider human rights, we anticipate that assessing the impact of new policy on human rights will be a key consideration in taking forward any reform. Assessing the business and regulatory impact of any change will also be central to ensuring that approaches are proportionate and do not place unduly onerous burdens on public authorities or their partners. This is of particular importance in light of the current economic climate.

There are two areas in which the Committee's recommendations will not be considered as part of this consultation. The first is the Committee's recommendation to consider the introduction of a 'duty to record' certain categories of information. As the Committee's report recognises, any such duty would sit more naturally within public records legislation, rather than FOISA. The Scottish Government is currently exploring the Committee's recommendation to commission research into international approaches to 'duty to record'. We have undertaken to update the Committee's successor in the current Parliament (the Standards Procedures and Public Appointments Committee) on the progress of that work.

The second is the Committee's recommendation to consult on the Scottish Information Commissioner's proposal to amend section 74 of FOISA, to expressly allow that formal notices under FOISA may be transmitted by electronic means. Such a provision was subsequently made on a temporary basis by the Coronavirus (Scotland) Act 2020, to ensure that the Commissioner and Scottish public authorities could continue to discharge their FOI obligations while staff were required to work remotely. The change has now been made on a permanent basis by the Coronavirus (Recovery and Reform) (Scotland) Act 2022.

2.4 Responding to this consultation

We are inviting responses to this consultation by Tuesday 14 March 2023.

Please respond to this consultation using the Scottish Government's consultation hub, Citizen Space. Access and respond to this consultation online. You can save and return to your responses while the consultation is still open. Please ensure that consultation responses are submitted before the closing date of Tuesday 14 March 2023.

If you are unable to respond using our consultation hub, please send your response, including the completed Respondent Information Form to foiconsultation@gov.scot or by post to:

Handling your response

If you respond using the consultation hub, you will be directed to the About You page before submitting your response. Please indicate how you wish your response to be handled and, in particular, whether you are content for your response to published. If you ask for your response not to be published, we will regard it as confidential, and we will treat it accordingly.

All respondents should be aware that the Scottish Government is subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise.

If you are unable to respond via Citizen Space, please complete and return the Respondent Information Form included in this document.

To find out how we handle your personal data, please see our privacy policy.

Next steps in the process

Where respondents have given permission for their response to be made public, and after we have checked that they contain no potentially defamatory material, responses will be made available to the public at Scottish Government consultations. If you use the consultation hub to respond, you will receive a copy of your response via email.

Following the closing date, all responses will be analysed and considered along with any other available evidence to help us. Responses will be published where we have been given permission to do so. An analysis report will also be made available.

Comments and complaints

If you have any comments about how this consultation exercise has been conducted, please send them to the contact address above or to foiconsultation@gov.scot.

2.5 Scottish Government consultation process

Consultation is an essential part of the policy making process. It gives us the opportunity to consider your opinion and expertise on a proposed area of work.

You can find all our consultations online. Each consultation details the issues under consideration, as well as a way for you to give us your views, either online, by email or by post.

Responses will be analysed and used as part of the decision making process, along with a range of other available information and evidence. We will publish a report of this analysis for every consultation. Depending on the nature of the consultation exercise the responses received may:

• indicate the need for policy development or review
• inform the development of a particular policy
• help decisions to be made between alternative policy proposals
• be used to finalise legislation before it is implemented

While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.

The Respondent Information Form is available to download from the supporting files section. To place them in context, the questions from the form are also interspersed in the relevant sections throughout this document.