Freedom of Information International Review: scope of bodies included

Introduction

Context

The number of international jurisdictions that have adopted freedom of information laws has expanded greatly since the mid-1990s. In the same time period, many countries have seen a transformation in the role of the state and the way public services are delivered. Countries with older FOI legislation have found that their laws, in terms of the bodies that are required to provide access to information, are often lagging behind the laws of countries that have recently adopted legislation.

Scotland enacted its freedom of information legislation in 2002, although it wouldn't be until the beginning of 2005 that the Act came into force. At the time of enactment, it was never imagined that the bodies required to comply with the Act's obligations would remain constant^[1]. Indeed, the Act included provisions that explicitly empowered the Scottish Ministers to expand the scope as required^[2]. Despite this, during its first eight years, the Act underwent little change. The first extension of the Act came in 2013, when arms-length organisations, set up by local authorities to perform recreational, cultural, sporting and social activities on the authorities' behalf, were designated as public authorities^[3]. The second came in 2015, when grant-aided schools, independent special schools, Scottish Health Innovations Ltd, those providing a 'secure accommodation service' for children whose liberty is restricted, and private prisons were made subject to the Act's requirements^[4]. An Order for a third extension, designating registered social landlords, was laid in February 2019. In addition, the Public Audit and Post-Legislative Scrutiny Committee of the Scottish Parliament has committed to an inquiry into the Act itself^[5], under which scope will surely be considered.

At the beginning of her first term of Office, the First Minister of Scotland committed to leading 'the most open and accessible government^[6]' in the history of Scotland. The Scottish Government is a member of the Open Government Partnership, and in 2016, was selected to be a 'pioneer government' of that particular programme. There is therefore a responsibility on the Scottish Government to ensure that its freedom of information legislation is amongst the most open in the world. In the 2018-19 Programme for Government, the Scottish Government committed to consulting on proposals to extend coverage of the Freedom of Information (Scotland) Act 2002, specifically mentioning companies providing services on behalf of the public sector^[7].

It is in this context, that a review of international laws concerning the inclusion of private and non-core public bodies was considered helpful. There may be lessons for Scotland by considering both how laws in other countries determine which bodies should be subject to the legislation and, of course, which bodies are required to comply with the law(s).

This report is split into two parts. The main report contains a discussion of the findings of the review and illustrates these findings with a number of examples. However, most of the detail is included in the annex to the report. Here, the scope of bodies included in the FOI laws of each of the jurisdictions is considered in detail, by asking the same questions of each. Scotland has also been included to aid comparison. Finally, from the insight gained, suggestions are made as to how the Scottish Government and Parliament may update the law, so that it is at the vanguard of international standards.

Aims and Objectives

• To gain an understanding of international freedom of information laws, particularly those that construe scope widely to include bodies outwith the core public sector.
• To compare freedom of information laws internationally with the law in Scotland.
• To identify potential areas of alteration for Scotland's FOI legislation in relation to the possible method and substance of any future extension of the scope of the Freedom of Information (Scotland) Act 2002.

Methodology and limitations

When selecting the jurisdictions for examination, there were two main considerations. First, jurisdictions were considered that had a relatively expansive approach to making bodies subject to FOI. Second, states with disparate legal and political cultures were considered. Geographically, there is wide range of states represented, with a number of different languages, in an attempt to sufficiently reflect the diversity of the laws. Six states that were previously subject to British colonial control and who thus share a common constitutional heritage with Scotland were also included. This meant that states with a similar legal culture to Scotland as well as states where the legal culture is distinct were considered. Right2Info.org, a project of the Open Society Justice Initiative, that compares the FOI laws of several jurisdictions was particularly helpful in determining which bodies merited further examination.

The following jurisdictions were therefore selected:

• Brazil
• Estonia
• India
• Ireland
• Kenya
• Mexico
• The Netherlands
• New Zealand
• Nigeria
• South Africa
• Sweden

For most of the jurisdictions examined, academic articles or book chapters were first consulted to get a sense of the states' FOI Law(s) and how they operated. When a basic understanding of the relevant laws was gained, the legislation was directly consulted. Most of the laws were available in English. Where they were not, eg Sweden and the Netherlands, translations were made with Google Translate. The Swedish and Dutch Laws therefore may not be perfectly translated, although the translation was cross-referenced with English-language commentary to ensure that they were broadly the same. From there, webpages of the relevant supervisory bodies/government departments were browsed for reports/guidance to determine whether the scope of the Act had been considered in more detail.

Where possible, case law was also consulted, although this was limited to English-speaking jurisdictions. It is therefore possible that further clarification of scope has been missed in jurisdictions where case law could not be accessed. Further, Freedom.org, an NGO specialising in international FOI laws was browsed for relevant news related to scope and keyword searches on google were also made to determine whether there were news stories reported that concerned the scope of the relevant legislation. Finally, where the legislation requires pro-active disclosure or the appointment and publication of details of an Officer in charge of FOI duties, the webpages of some bodies subject to the Act were browsed to determine whether the bodies were complying with their duties.

Research questions

In order to aid comparison between the Freedom of Information (Scotland) Act 2002 and the laws of the other jurisdictions, two main questions were asked:

1) How do other jurisdictions determine which bodies are subject to their FOI law(s)?

2) Which bodies are subject to FOI law(s) in other jurisdictions?

The first question was selected in order to illustrate that different jurisdictions have different processes for ensuring that sufficient bodies are subject to FOI requirements. This, of course, means that legislation is considered, but also any other methods of including bodies for example by granting a Minister or an oversight body the power to designate bodies. By discussing the way different laws determine which bodies should be required to comply with the FOI law it is hoped that the advantages and disadvantages of the different approaches can be observed, and their relevance, when considered in a Scottish context.

The second question, which is divided further into sub-questions, aims to directly compare the bodies that tend to be covered by the legislation. This allows for comparison between the scope of bodies covered in the FOI laws of different countries. By locating the particular bodies that are required to comply with FOI laws in the jurisdictions; the extent to which those bodies are required to comply with FOI obligations; why those bodies have been included; and how successful such bodies have been in complying with their obligations, it may inform consideration of extending FOISA to include other bodies.

The report will therefore explore both questions (and their sub-questions) in detail and highlight any illustrative examples from the jurisdictions examined.