3 December 2026
A version of this article was first published in the November 2025 edition of PDP's Freedom of Information journal.
2025 has been a landmark year for FOI, with supporters of both the Scottish and UK-wide FOI law’s celebrating the 20th anniversary of their enactment.
While responding to FOI requests is now very much ‘business as usual’ for most public bodies, those of us who were around in January 2005 may recall a degree of uncertainty about the impact that these new rights would have.
Would the new ‘right to information’ capture the public’s attention? Would people make use of it? What would they ask for?
And how would public authorities respond? Would they meet their new duties openly, or would there be some resistance, with disclosable information having to be ‘dragged out’ of some authorities, rather than willingly released?
And would the legislation achieve its goals of supporting public engagement, facilitating a more equal relationship between individuals and organisations and driving greater transparency and a change of culture in public bodies?
Twenty years on, we now have clear answers to many of these questions, while others remain an ongoing work-in-progress.
The impact of FOI
In Scotland, the impact of FOI can be seen from the data that the Scottish Information Commissioner collects from public bodies. This enables us to estimate that more than 1.4 million FOI requests have been made in Scotland since 2005 – a sizeable amount from a population of just 5.5 million. Across the UK the data tells a similar story, with MySociety research from 2022 finding that one in ten adults had made an FOI request (with this figure rising to around one in seven when including those who requested information as part of their work).
Polling also tells us that the public value their information rights. In Scotland, 97% of respondents to a 2024 poll said it was important for the public to be able to access the information held by public bodies, while only 6% felt that FOI was a waste of public money. Indeed, public support for FOI might even be said to be growing, with this latter figure having reduced steadily in recent years, down from an already fairly low 14% when the question was first asked in 2011.
We also know that the range of information that people use FOI to ask for is huge and covers almost every aspect of an organisation’s work. This is clear through the appeals to the Commissioner, or through the requests made using WhatDoTheyKnow.com, where subject matter ranges right across the alphabet: from Ambulance cover, Building standards and Carbon emissions to Xmas lights, Youth employment and Zoo inspections.
If information is recorded and held by a public body, there’s a very good chance that someone, somewhere, will have used their FOI rights to ask for it.
The public authority response
And what of the public authority response? Well, for the most part, organisations continue to respond well to FOI. Our data shows, for example, that, over the last 12 years, 86% of the requests made in Scotland were answered within the FOI Act’s 20-working day timescale, while 75% of requests resulted in the disclosure of either some or all of the information sought.
All of this is indicative of a regime that is generally working well. FOI rights in Scotland are both known about and used, while public bodies are, on the whole, responding on time and disclosing information. This, then, is the typical FOI experience.
But what of the other objectives of the legislation? Has it served to increase transparency? Or drive culture change inside organisations?
With regard to transparency, organisations are, overall, far more open than they were twenty years ago. A huge range of information is disclosed every day under FOI, either in response to direct requests or through proactive publication. This impact is also felt within organisations, with a 2022 survey of Scottish FOI practitioners finding that 77% felt that FOI had made their organisations more open and accountable, while 83% agreed that FOI was an important public right.
Organisational responses will, however, vary. While our experience is that the majority take their responsibilities seriously, we do, from time to time, encounter those where FOI compliance is viewed as less of a priority – resulting in timescales often being missed, information being inappropriately withheld or, in some cases, those exercising their rights typically viewed as ‘troublemakers’.
In such cases, we often see that a poor compliance culture is set from the top down, with a lack of support for FOI principles and a lack of positive FOI messaging from senior management resulting in poorer practice across the organisation.
The importance of senior management support for FOI cannot be overstated. While passionate and committed practitioners will often make an individual difference, senior level commitment and support is a key enabler in embedding a positive and effective FOI compliance culture across an organisation, ensuring the whole system works better for all.
This is true in every sector, for every organisation.
We see this repeatedly in our public authority interventions to support improvement. Here, senior staff typically hold the key to turning around performance – whether it be through more resource, internal messaging, careful monitoring, or targeted engagement. In our intervention to improve FOI practice in the Scottish Government, for example, we have seen positive engagement from the leadership team help drive FOI on-time performance to 96% over the last 12 months, with 83% of requests resulting in either full or partial disclosure (58% full disclosure).
The importance of senior level support was also highlighted by Birkbeck College’s Dr Ben Worthy at a recent Institute for Government event reflecting on 20 years of the UK FOI Act. Here it was reported that the likelihood of a full response from UK central government had fallen to 39% - down from 50% in 2015 and 75% in 2005. Dr Worthy noted that, of the eight Prime Ministers since 2005, three of them – Tony Blair, David Cameron and Liz Truss - have explicitly criticised FOI, while only one – Gordon Brown - has publicly praised it. Dr Worthy concluded by reflecting that it is important for politicians to “praise, not bury, freedom of information”.
This will, of course, apply equally to senior managers.
Where next for FOI in Scotland?
After twenty years, however, there areas where our FOI laws are beginning to show cracks. The ‘publication scheme’ approach to proactive publication is a concept from a pre-digital age, and both the ways in which information is published and our expectations of how it should be accessed have changed dramatically over the last two decades.
Likewise, the routes through which public sector services are delivered have also seen huge changes, with far more essential services now provided by third parties – and often beyond the full glare of FOI accountability.
The potential for an FOI refresh was recognised in 2023, when not one, but two consultations on FOI reform were launched in Scotland – one by the Scottish Government itself, and one by the opposition MSP Katy Clark.
The Scottish Government approach
Following consultation, the Scottish Government concluded that the law itself remains fit for purpose, while noting that FOI would benefit from being strengthened and improved through other routes. This includes a commitment to take a more structured and consistent approach to the designation of new bodies, and revising and updating the Section 60 code of practice.
This work is currently underway, with the Scottish Government due to launch a consultation on the extension of FOI to providers of Scottish care home and ‘care at home’ services. This extension, which follows on from the very successful designation of housing associations in 2019, would bring an estimated 2,000 additional service providers under the scope of FOI – ten times more than the housing extension.
While a designation of this scale would undoubtedly create challenges, the Commissioner is fully supportive of the proposal - not least due to the significant ‘rights gap’ that exists between the vulnerable people being cared for by local authorities and those looked after by third parties. The need for greater openness in this vital sector was also, of course, brought into stark relief during the pandemic, while we have been contacted directly by those who have been left frustrated after attempts to access information from these services were denied or ignored.
The discussion around extending rights to this vitally important public service is, therefore, both welcome and overdue, and we would urge all those with an interest to take part in the forthcoming consultation.
Regarding the updating of the Section 60 Code, we have provided detailed comments on areas where the current code would benefit from a refresh to the Scottish Government, and it is now in the process of preparing its own updated draft.
We anticipate that the consultation on the revised draft Code will be launched in the not-too-distant future.
The Private Member’s Bill
While the Scottish Government decided not to proceed with any amendments to primary legislation, Katy Clark MSP concluded her own consultation by deciding to launch a Private Member’s Bill to reform Scottish FOI law, reporting that 75% of respondents expressed their support for statutory reform.
The FOI (Reform) (Scotland) Bill was subsequently laid in the Scottish Parliament on 2 June 2025 – another milestone in this anniversary year.
The Reform Bill proposes to refresh Scotland’s FOI Act across several key areas. These include:
- Measures to support the extension of FOI to third parties providing public services
This includes giving the Scottish Parliament power to designate bodies under FOI; reinforcing the Scottish Government’s duty to consider designation; and requiring that the Scottish Parliament debate and decide on the approval of reports on the Scottish Government’s use (or otherwise) of its designation powers.
Each of these measures is designed to accelerate the process of designation, ensuring that bodies appropriate for extension can be brought under the scope of FOI in a timely and efficient way.
- Reform of the FOI Act’s ‘duty to publish’
Replacing the ‘publication scheme’ approach with a Code of Practice on Publication to be developed and enforced by the Commissioner. This would allow the publication approach to be updated in response to technological changes and / or developments in best practice.
- A statutory requirement to appoint an FOI Officer
The FOI Officer would be responsible for a number of duties - including staff training, advising on compliance with the law, and reporting on FOI performance to senior management.
- Removal of the First Minister’s power of veto
This power - which enables the Commissioner’s decisions to be vetoed in some circumstances - has never been used.
- Pausing, rather than resetting, the 20-working-day response time when clarification is required
Avoiding ‘late-stage’ clarifications which then require a full reset of timescales – which can be extremely frustrating for requesters. It is anticipated that the measure would encourage and incentivise early clarification, where required.
- New enforcement powers for the Commissioner
Including the ability to issue an enforcement notice in relation to the FOI codes of practice.
- Strengthening the ability to bring prosecutions if information is deliberately destroyed to prevent its disclosure under FOI
Including enabling prosecutions to be taken forward where a request has not yet been made, but destruction was carried out to prevent disclosure in response to a future request.
The Scottish Parliament’s Standards, Procedures and Public Appointments Committee issued a call for views on the Bill - which the Commissioner has, of course, responded to - and subsequently took evidence on the Bill in November. The Committee will publish its report to Parliament shortly.
Timescales for the Bill are, however, tight, with the next Scottish Parliamentary elections due to be held by 7 May 2026.
While this timescale is undoubtedly challenging, Scottish Information Commissioner David Hamilton has voiced his clear support, noting the need for key parts of the law to be updated after twenty years. “By acting to protect and update FOI now,” he says, “MSPs can ensure that the public’s right to hold public bodies to account remains fit for purpose for the future.”
The progression of a Bill to reform this vitally important right would also, of course, be a fitting end to FOI’s twentieth anniversary year - ensuring that the legislation continues to bring benefits for the public and drive positive change in public bodies for the next two decades, and beyond.
Paul Mutch
Deputy Head of Policy and Information
