Access to information rights in Scotland: consultation

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

The Committee raised concerns about whether developments in information technology, and the use of new methods of information storage and communication within public authorities may be undermining the access to information rights provided by FOISA. Central to this was the Committee's concern about the use of '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.

The Committee suggested that further guidance for authorities, from both the Scottish Government and the Commissioner, on this matter may be helpful. However, the Committee also suggested that it may be helpful to amend FOISA to incorporate a specific definition of the term 'information', in order to make the meaning of the term more explicit, "the Committee considers that there may be merit in the legislation being amended to make explicit what is meant by the term "information."[24]

The Scottish Government recognises that the use of unofficial platforms for the conduct of official business does pose risks in relation to FOISA compliance as well as in relation to sound information governance practices generally. It would not be our expectation that the use of unofficial platforms would be commonplace for conducting the core business of any Scottish public authority. Nevertheless we recognise that from time to time there will be instances where the staff or officers of an authority will find it convenient to use unofficial platforms to communicate on work related matters.

Where this occurs, the law is already clear that such information is to be considered 'held' by the authority for the purposes of FOISA. The Section 60 Code of Practice published by the Scottish Ministers advises authorities to of the need to think beyond conventional places where information may be held, when conducting searches:

Searches should be proportionate and focus on systems (whether paper-based or electronic) where staff with a working knowledge of the records relating to the information request consider what information might be held. Reference to "systems" do not relate only to IT systems but may include any other system, including paper records, informal systems such as officers' notes, and temporary records. Authorities should think beyond conventional places where information might be held to satisfy themselves that full and robust searches have been undertaken. (Section 60 Code of Practice, para 6.2.2)

We also recognise the concerns expressed to the Committee by witnesses including the former Scottish Information Commissioner Kevin Dunion that the legal position regarding information held off official systems may not be universally understood, and that there is a risk of staff members and officers of Scottish public authorities inadvertently committing offences under section 65 of FOISA as a result.

In the Scottish Government's response to the report we undertook to consider whether the advice in the Section 60 Code could be strengthened further, when we next revise the Code. It seems to the Scottish Government that stronger guidance for, and within, authorities is the only approach likely to provide greater assurance around this issue - since the statutory position would appear already to be unambiguous: all recorded information held by an authority, its officers or staff members for business purposes is subject to FOISA.

We would propose that a revised Section 60 Code should contain a dedicated section, explicitly setting out the position regarding information held on unofficial platforms, and providing guidance for authorities around how the compliance risks associated with the use of such platforms can be mitigated.

4.1 Definition of 'Information'

The Scottish Government remains to be convinced that amendments to FOISA itself can have value in addressing issues around information held on unofficial platforms. Nevertheless, we would welcome the views of stakeholders on this matter. The Committee's suggestion is that a clearer definition of the term 'information' on the face of the legislation may help to promote better understanding of authorities' obligations.

It seems clear to us that any definition in legislation must remain broad, capturing all recorded information regardless of the platform or format used to record it. Any closed list of possible platforms or formats would be unlikely to be comprehensive and, even if satisfactory at the time of enactment, would require constant updating as technologies develop.

One option in principle could be to adopt a definition which mirrors the definition of 'environmental information' in the Environmental Information (Scotland) Regulations 2004 (EIRs). The EIRs define environmental information as, "any information in written, visual, aural, electronic or any other material form" (on environmental matters, as defined in parts (a)-(f) of the definition).

A similar definition of 'information' incorporated into FOISA could perhaps have some value in underlining the principle that information may be held in a number of different material forms.

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 obligations in relation to information held on unofficial platforms?

• Yes
• No
• I don't know/have no view

Please give any reasons for your answer:

Question 15

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

• Yes, I would be in favour of such a change
• No, I would not be in favour of such a change
• I don't know/have no view

Please give any reasons for your answer:

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? [Please specify]: