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FOI Amendment: Consultation Responses

Commissioner sets out his view on the reform of FOI in Scotland

14 March 2023

Scottish Information Commissioner Daren Fitzhenry has today submitted responses to two important consultations seeking views on the reform of Scotland’s twenty-year-old freedom of information (FOI) law.

In his responses the Commissioner welcomes measures to extend freedom of information rights to cover third-party organisations - including charities and commercial organisations - that deliver important public services on behalf of the public sector. However, the Commissioner also cautions that the extension of FOI should be targeted, manageable and proportionate, in order to ensure that public confidence in the reliability and effectiveness of Scotland’s FOI regime can be maintained.

Daren Fitzhenry said:

“It is essential that Scotland’s FOI regime is updated to keep pace with the changes that have taken place in the way that public services are delivered over the past twenty years. Failure to update FOI leads directly to people losing access to information about the quality, cost and performance of the public services delivered on their behalf; including vital services responsible for the provision of child care, social services and health care.

“However, it’s equally important to ensure that FOI extension is done in a way that’s clear for organisations, understandable for the public and enforceable by the Commissioner, ensuring that effective action can be taken should things go wrong.

“As a result, my responses to these consultations propose a targeted and timetabled approach to FOI extension, designed to address current gaps in coverage while also enabling organisations to be supported as they prepare to meet FOI duties. Such an approach would also ensure that service-users and the wider public can be appropriately informed about the changes that are made.

“I look forward to discussing the proposals further as these two important consultation processes move into their next phase.”

The two consultations to reform FOI law have been separately launched by the Scottish Government and by Katy Clark MSP, the latter in the form of a proposal for a Scottish Parliament Private Member’s Bill.

In addition to setting out his view on the route through which FOI law might most effectively be extended, the Commissioner’s responses also set out his views on a range of other proposals intended to reform FOI law. These include:

  • Support for the introduction of a new Code of Practice to improve the proactive publication of information.
  • Support for the removal of the FOI ‘ministerial veto’, which enables the Scottish Administration to refuse to comply with decisions and enforcement action of the Commissioner in some circumstances, without having to appeal the case to the courts.
  • Support for proposals to enable appeals to the Commissioner to be made in relation to FOI responses issued by the Lord Advocate, the Crown Office and Procurator Fiscal Service, and the Commissioner’s own office.
  • Support for measures to prevent the use of confidentiality clauses when withholding information in response to FOI requests.
  • Support for the further exploration of proposals to create a statutory FOI Officer role within organisations.

In addition, the Commissioner also expressed a degree of caution about some of the proposals contained across the two consultations, and their impact on the effective operation of FOI law in Scotland. These included:

  • Concern around the practical impact of proposals which would enable fully anonymised FOI requests to be made to organisations.
  • Concern around potential impact of amendments to definitions which are currently widely understood, including the definition of ‘information’ in FOI law. The Commissioner’s concerns related to unintended consequences that might arise from such proposals.
  • Concern around the exclusion of organisations which deliver public services from FOI law based solely on considerations relating to the type or size of the organisation, rather than the nature of the public service provided and the public interest in extension to that service.

The Commissioner's responses to the two consultations can be read in full below.