11 June 2025
On 2 June MSP Katy Clark laid a bill to reform Scotland’s FOI law in the Scottish Parliament. The bill, which follows on from a 2022 consultation and is informed by the views of almost 100 respondents, contains a number of provisions which aim to refresh and reform key elements of Scotland’s FOI Act.
Scottish Information Commissioner David Hamilton has welcomed the reform bill, noting that “after twenty years, it’s undoubtedly time for a refresh…by taking action to protect and update FOI now, we can ensure that our vital right to hold public bodies to account remains fit-for-purpose for the future”.
The full text of the bill and its accompanying documentation is available on the Scottish Parliament’s website.
Below, we provide a brief summary of the key provisions contained in the substantive clauses of the bill.
- Section 1 – General entitlement
Section 1 of the reform bill introduces a presumption in favour of disclosure when public authorities are considering whether an exemption applies. This would apply to all exemptions, apart from the small number of ‘absolute’ exemptions (that is, the exemptions which are not subject to a ‘public interest’ test).
- Section 2 – Further powers to designate Scottish public authorities
This section requires that the Scottish Ministers consider any proposals for designation under FOI that have been made by the Scottish Information Commissioner when deciding to bring forward a designation order. It also gives the Scottish Parliament the power to designate organisations under FOI, if those organisations are exercising public functions or delivering public services under contract to a public body. This would be done through a parliamentary resolution, after the Parliament had first consulted on that resolution.
- Section 3 – Publicly-owned companies
Addresses an anomaly in the current legislation to ensure that companies which are jointly and wholly owned by the Scottish Ministers and another public authority are covered by FOI law.
- Section 4 – Public authorities to which the Act has limited application
Sets out that any organisation which is designated through a Parliamentary resolution is only designated in relation to the functions or services covered by that resolution.
- Section 5 – Reports on section 5 power
Requires that the Scottish Ministers consider the exercise of their own power to designate prior to laying a report on the use of this power, while also requiring that the Scottish Parliament debate a related report and decide whether to approve it.
- Section 6 – Requesting information
Clarifies that an information request can include an electronic address for correspondence.
- Section 7 – Time for compliance
Amends FOI so that the 20-working day response time is paused, rather than reset, when clarification is requested and received. It also removes the timescale extension which is currently available to grant-aided and independent special schools during holiday periods.
- Section 8 – Publication schemes and Model publication schemes
Repeals the FOI Act's publication scheme provisions to enable this to be replaced with a new approach (see section 15 below).
- Section 9 – Information provided to the Commissioner
Creates a new exemption covering information supplied to the Commissioner for the purpose of the investigation of appeals.
- Section 10 – General functions of the Commissioner
Gives the Commissioner the power to require individuals’ representing public authorities to provide him with information where this is necessary for the exercise of his functions.
- Section 11 – When application excluded
Enables the Commissioner to receive appeals in relation to the handling of an FOI request by his own office (this is currently not possible).
- Section 12 – Enforcement notices
Gives the Commissioner the power to issue enforcement notices in relation to failures to comply with the FOI Act’s codes of practice.
- Section 13 – Exception from duty to comply with certain notices
Removes the First Minister’s power to veto decisions of the Scottish Information Commissioner in some circumstances (a power which has never been used).
- Section 14 – Failure to comply with notice
Gives the Commissioner the power to refer a decision notice to the Court of Session if a public authority has failed to comply with the timescale for action set out in the decision notice.
- Section 15 – Proactive publication duty and publication code
Reforms the FOI approach to proactive publication, requiring that an authority proactively publishes up-to-date information relating to its functions in an accessible way. Section 15 also, gives the Commissioner the power to issue a publication code of practice, and requires that public authorities comply with that code.
- Section 16 – Freedom of information officer
Creates a statutory requirement to appoint an FOI Officer within public authorities. The FOI Officer would be responsible for ensuring the fulfilment of a number of duties, including staff training, advising on compliance with FOI law and the codes of practice, and reporting to senior management.
- Section 17 – Disclosure of information to Scottish Public Services Ombudsman, Information Commissioner or to Audit Scotland
Adds Audit Scotland to the list of public bodies to which the Scottish Information Commissioner can disclose certain information.
- Section 18 – Offence of altering, etc. records with intent to prevent disclosure
Enables prosecutions to be taken forward in circumstances where information has been destroyed prevent disclosure under FOI, without requiring that an information request for the information has been made.
- Section 19 – Time limit for proceedings
Changes the time limit for bringing a prosecution for the deliberate destruction or concealment of records to three years from the beginning of a criminal investigation, rather than three years from the date of the offence.
Read the full text of the FOI reform bill and its accompanying documentation on the Scottish Parliament's website.
