Access to information rights in Scotland: consultation

5. Improving proactive publication – promoting openness as 'business as usual' in a digital age

A key original aim of FOISA was to bring about a more robust approach to proactive publication of information by Scottish public authorities. Section 23 of FOISA currently requires each authority to adopt and maintain a publication scheme setting out information to be published by that authority. Publication schemes must be approved by the Commissioner, and authorities thereafter have a duty to publish the information in accordance with the scheme. To make the process of adopting and approving schemes more workable, section 24 of FOISA gives the Commissioner powers to produce a model publication scheme, which authorities may adopt.

In practice, the Commissioner strongly recommends that Scottish public authorities adopt the model publication scheme, and all invariably do so. The Model Publication Scheme requires authorities to publish information in nine classes, if such information is held by the authority:

Class 1: About the authority: Information about the authority, who we are, where to find us, how to contact us, how we are managed and our external relations.

Class 2: How we deliver our functions and services: Information about our work, our strategies and policies for delivering our functions and services and information for our service users.

Class 3: How we take decisions: and what we have decided Information about the decisions we take, how we make decisions and how we involve others.

Class 4: What we spend and how we spend it: Information about our strategy for, and management of, financial resources (in sufficient detail to explain how we plan to spend public money and what has actually been spent).

Class 5: How we manage our human, physical and information resources: Information about how we manage our human, physical and information resources.

Class 6: How we procure goods and services from external providers: Information about how we procure goods and services and our contracts with external providers.

Class 7: How we are performing: Information about how we perform as an organisation and how well we deliver our functions and services.

Class 8: Our commercial publications: Information packaged and made available for sale on a commercial basis and sold at market value through a retail outlet e.g., bookshop, museum or research journal.

Class 9: Our open data: The open data we make available as described by the Scottish Government's Open Data Strategy and Resource Pack, available under an open licence

Authorities have some discretion about exactly what to publish under each category but they have an obligation to consider the public interest. The Commissioner produces a Guide for authorities on the model scheme. The full Model Publication Scheme and the Commissioner's Guide for authorities are available on the Commissioner's website.[25]

The current system has some clear advantages:

• It sets a clear statutory obligation to proactively publish information
• It gives a clear role to the Commissioner in setting out the broad expectation for authorities, in terms of the categories of information they ought to publish
• It provides a clear framework within which the Commissioner can provide oversight to this aspect of authorities' FOISA compliance.

Nevertheless, in evidence to the Committee both the Scottish Government and the Commissioner suggested the requirement to maintain a publication scheme may reflect a somewhat outmoded conception of how the public wish to access information about the work of public authorities.

The Committee recommended that the Scottish Government should consult on a specific proposal made in the Commissioner's written evidence to the Committee for the current statutory publication scheme obligations to be replaced with a simple statutory duty to publish information, supported by a new 'legally enforceable Code of Practice on Publication':

5.1 Replacing current statutory duty to maintain a publication scheme with a statutory duty to publish information, supported by a new legally enforceable Code of Practice on Publication

The Commissioner proposes that such a Code would set out certain key requirements and principles for all authorities such as:

• what must be published (if held by the authority);
• how the published information must be made available and searchable;
• how long it should be available for.

The Commissioner considers that such an approach, based on a legally enforceable Code of Practice would be more flexible than the current 'publication scheme' requirements and better future-proofed, since the Code could be updated in light of developments in Scottish public authorities' use of information, developments in technology etc.

The Commissioner proposes that his own office may be best placed to prepare the Code, but that the content should also be subject to approval in the Scottish Parliament through negative procedure (i.e. where no vote is required unless one is called for).

The Scottish Government is open in principle to the broad approach proposed by the Commissioner. We are inclined to agree that if a statutory code of practice on proactive publication were adopted, responsibility for preparing the code should rest with the Commissioner, rather than the Scottish Ministers. This would represent a natural evolution of the Commissioner's current responsibility for producing a model publication scheme, and in providing guidance and oversight to authorities in terms of their compliance.

However, it must be acknowledged that the content of any code of practice, albeit set under statute, cannot itself rise to the status of legislation. It is unlikely therefore that the content of such a code could be 'legally enforceable' in its own right. If taking forward future primary legislation in this area in the future we would therefore wish to work with the Commissioner to develop an approach which gives the Commissioner levers to require proactive publication which are at least equivalent to those provided by the current regime.

Question 17

Do you agree that the current provisions of sections 23 and 24 of FOISA, in regard to publication schemes, require to be updated?

• Yes, I agree there is a need to update the provisions
• No, I do not agree there is a need to update the provisions
• I don't know/have no view

Please explain the reasons for your answer:

Question 18

Do you agree with the Commissioner's proposal that the requirement to adopt and maintain a publication scheme should be replaced by a simple duty to publish information, supported by a Code of Practice on publication, set by the Commissioner subject to Parliamentary approval?

• 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 explain your reasons for either supporting or opposing such a change or your reasons for being unsure:

Question 19

Is there any other alternative, that you see as preferable to the Commissioner's proposed approach?

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

If 'yes', please elaborate:

5.2 Improving approaches to proactive publication within the existing statutory framework

The Scottish Government is clear about the importance and value of government and public services in Scotland proactively sharing and disseminating information about their work. The Open Government National Action Plan 2021-2025 includes commitments to improving the accessibility and usability of official information, including in relation to public finances and to improving access to open data.[26]

There is clearly scope across the public sector in Scotland to further develop and improve approaches to the proactive publication of information - making it easier for members of the public to seek out and use information about the services they use and decisions which affect their lives.

All public authorities in Scotland should give consideration to how they can most effectively provide the public with access to information about their work. Whilst it is not for the Scottish Government to direct other public authorities in their fulfilment of their proactive publication obligations, this consultation exercise does provide an opportunity to gather views on how well proactive publication is working across the public sector in Scotland.

Question 20(a)

How satisfied are you with the availability of information about the work of government and public services in Scotland in the public domain?

• Very satisfied
• Somewhat satisfied
• Neither satisfied nor dissatisfied
• Somewhat dissatisfied
• Very dissatisfied

Please provide reasons for your answer:

Question 20(b)

Specifically, what types of information regarding the work of government and public services in Scotland do you consider should be made available proactively?

Question 20(c)

How would you prefer to access information about government and public services in Scotland?