Access to information rights consultation: response

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

35. This section of the consultation considered the Committee's concerns about the potential for changing modes of information use and developments in information technology to undermine access to information rights, and compliance with FOISA and the EIRs. In particular, the Committee raised concern about the use of 'unofficial' platforms such as private email and messaging services (such as WhatsApp) for matters relating to the business of Scottish public authorities and the risk this may undermine compliance with FOISA.

Views of respondents

36. Respondents were asked specifically to consider whether updating the Section 60 Code of Practice to provide clearer guidance on these issues was the best approach. They were also asked for their views on the Committee's proposal to introduce a fuller definition of the term 'information' within the primary legislation.

37. There was recognition by respondents of all types of the compliance risks which may be posed by the use of so called 'unofficial platforms' for conducting business in Scottish public authorities. There were a range of views advanced about how to mitigate these risks. However, most respondents tended to the view that answers to these questions were likely to lie in stronger guidance and organisational approaches rather than changes in the law.

38. Opinions on the desirability of introducing a fuller definition of 'information' into the legislation were divided. Most respondents agreed that if such a definition were to be introduced, it should mirror that provided in the EIRs i.e.: 'any information in written, visual, aural, electronic or any other material form'.

Scottish Government response

39. The applicability of FOISA to material held in a range of formats and platforms is already clear. The Section 60 Code, sets out that searches carried out to answer a request should focus on systems (whether paper-based or electronic, corporate or non-corporate) where staff with a working knowledge of the relevant records consider that information may be held. The guidance specifically advises that Scottish public authorities should think beyond the usual places where information might be held to satisfy themselves that searches are robust.

40. The Scottish Government does not consider that legislative change is the solution to the issues considered in this section of the consultation. Rather, we consider clear guidance and strong organisational approaches to be the best way to address these issues.

41. The Scottish Government considers that the revision of the Section 60 Code may also provide a valuable opportunity to consider the impact of wider challenges associated with developments in information technology – such as the issues which may be raised by the development of artificial intelligence.

Scottish Government commitment

42. As a key component of the wider revision of the Section 60 Code – working in partnership with the Scottish Information Commissioner and drawing also on the views of partners across civil society, the third, private and public sectors – the Scottish Government will set out fuller guidance on the responsibility of Scottish public authorities to identify, locate and provide business-related information that may be held on non-corporate or informal systems where such information falls within the scope of any information request.

43. Consideration will also be given to whether other updates to the Code are required to take account of wider issues associated with developments in technology.