Carole Ewart

On April 1, politicians voted to change freedom of information (FOI) law in Scotland. Thankfully, seven weeks later, a united opposition restored our rights. Why extending FOI response times from 20 to 60 working days had ever seemed like a good idea remains a mystery, as history teaches us that whenever there is a health crisis the public’s interest in transparency and accountability soars. Few would have been put off making an FOI request by “temporary” legal changes that tripled response times and delayed appeals to the Scottish Information Commissioner, but a climate of suspicion would have been allowed to fester and would have and nurtured questions of “what are you hiding?”

It’s 15 years since the Freedom of Information (Scotland) Act 2002 (FoISA) became operational. FoISA defines in law what information a public body can decide to refuse and how long it can delay disclosing information. Seventeen exemptions exist which an authority can select to justify a refusal to disclose and only some of them are subject to a “public interest” test – that is, the information is exempt but the public interest in disclosure trumps. FoISA’s biggest asset is enforceability, giving requesters the free right to complain to the Scottish Information Commissioner.

The public interest is a key factor in motivation and impact under Article 10 of the European Convention on Human Rights. The right to access information to form an opinion is met through four tests: the purpose of the information request; the nature of the information sought; the particular role of the seeker of the information in “receiving and imparting” it to the public; and whether the information was ready and available. However, the emergency changes at the Scottish Parliament took no account of the public interest when deciding how quickly the information should be disclosed. The focus seems to have been on the needs of duty bearers, who wanted their staff to focus on managing its response to the health emergency. That is what the public wants too, but ensuring the FoI regime operates as smoothly as possible is part of that response. Transparency and accountability depend on sound records management so guidance, minutes and email trails of who said what to whom can be retrieved. FoI is not a luxury or a privilege but a critical component of good government.

The commissioner reported in 2019 that his office carried out 251 formal “interventions” with public bodies, an increase of 17 in one year, due to poor practice issues and his enforcement action on the Scottish Government’s poor performance is ongoing from 2018. FoISA needs reformed and last week that became official. The Inquiry Report by a Committee of the Scottish Parliament cites numerous practice, procedural and legal problems and recommends increasing the range of publicly funded bodies covered.

Our shared concern to save lives, protect the NHS and learn from the past to do better in the future is made easier as MSPs now require the Commissioner to apply the “public interest” in appeals relating to COVID-19 and requires regular reports from Scottish ministers on FoI performance. Despite the last seven weeks, FoI rights have emerged stronger and we can look forward to prompt, positive legislative reform.

Carole Ewart is the convener of the Campaign for Freedom of Information in Scotland. This article first appeared in The Herald.