Information is still not free enough
An extended version of Craig’s article in this week’s In Common column in The National, he looks at the Freedom of Information Reform (Scotland) Bill, how it improves your right to Freedom of Information and where it could go further.
Image Credit: Egor Komarov, Unsplash
Long time followers will know of my personal conviction that democracy cannot exist without transparency. There is a long list of issues that this impacts. If we can’t see what Government is talking about. Who is talking to them. What money is being spent where. Where that money is coming from. How policies are being formed. How their impact is being measured. If any of these things are happening only behind closed doors, then we cannot properly hold Government to account or ensure that they are meeting their promises.
The current legislation around Freedom of Information in Scotland is decent but it is also out of date and needs reform and expansion. It was one of the first Bills passed by the recommenced Scottish Parliament, but it has been creaking at the seams for some time.
In 2019, the Post-Legislative Scrutiny Committee in the Scottish Parliament picked up the Freedom of Information (Scotland) Act – known in shorthand as FOISA – and decided to see where it could be updated. We were keen supporters of this process and you can see me give evidence to the committee here. Several areas of reform were identified including a major one where the increasing use of private companies and ‘arms-length’ bodies to deliver public services may be weakening the effect of our Freedom of Information.
One prominent and oft-cited example is that if a Local Authority owns a care home, then you have the ability to submit an FOI request to get information about the care home. However, if the Local Authority sells off that care home to a private company and then hires them to provide care services then you might find that you can’t submit the same kinds of FOI requests. You might also not be able to submit certain requests to the Local Authority such as a request to see the terms of the contract they signed to ensure that they’re not overpaying the private company for care as an FOI request of that kind can be blocked due to ‘commercial sensitivity’.
In this way, privatisation could well be used as a shield against freedom of information. If a corrupt or ill-willed public body wished to conceal something it was doing from view, then they could simply privatise it. The committee determined that there was therefore merit in the idea that the transparency should follow the public money, not the public bodies. That is, if a private company is using public money to deliver a service then it should be just as subject to Freedom of Information as if that service was being delivered ‘in house’ by a public body.
Unfortunately, the Scottish Government decided in the end to not do anything with the Committee’s recommendation to rectify this problem which prompted Labour backbench MSP Katy Clark to submit a Members’ Bill calling for reform of the legislation to strengthen FOI powers in this area. You can listen to my interview with her on the Bill in Episode 138 of the Common Weal Policy Podcast when she was just at the start of the process of introducing the Bill.
A consultation into her Bill has just concluded but we have submitted our response to it largely agreeing with its aims but calling for it to go further in a few areas.
One of these areas is in the concept of ‘proactive disclosure’. Right now, there is a great deal of information being held by Government that you could have put out into the public domain if you submitted an FOI request for it but, until someone does, it will remain secret. This is a problem. Public information should be public and not subject to the whim of someone, somewhere coming up with the appropriate question.
For example, perhaps you want to check to see if someone in particular has been lobbying the Scottish Government and might be doing it in a way that it doesn’t appear on the Lobbying Register. Emails are not Registered Lobbying in the same way that a face-to-face conversation is.
If an organisation doesn’t want you to know that they’ve been lobbying Government Minsters then keeping the conversations to email and phone calls is a decent way of doing it because you need to have some idea that they ARE lobbying Government before you can submit an FOI. Under the current Lobbying Register legislation, even if an organisation would WANT to disclose that information, they are not allowed to.
But let’s say you do have that idea and you decide that you do want to find out what Dr Craig Dalzell, Head of Policy & Research at Common Weal has been saying in email communications with Angus Robertson about the Scottish Government’s Independence White Papers, for example. That’s a perfect valid FOI request and those emails will be released. [I have no idea who submitted that FOI by the way, but it was a good one! Especially as it confirmed that Robertson knocked back Common Weal’s offer to advise on said White Papers given that we had already done the work for them]
“This is a topic that I, personally, shall continue to push for to its maximum limit – even when I become the subject of FOI requests! – because I truly believe that without freedom of information we really don’t have a true democracy.”
But if those emails can be released upon an FOI request and many other emails to and from Ministers can be released then why not simply release them all already rather than waiting for the question?
This is the principle of proactive disclosure and it says that any information that could be released due to an appropriately worded FOI request should simply be published by the Government as a matter of course. This is what we call a ‘Glass Wall’ level of Government transparency – we, the public, should be able to just look in and see almost everything that Government is doing without having to ask.
The current FOISA legislation does lay down that proactive disclosure is “best practice” but it is rarely followed by Government who can safely counter that not doing so still meets the letter of the law. The new Bill would make such disclosure an active and statutory duty. It would also make it an offence to delete public information in order to prevent such disclosure.
This is where we think the Bill could go a bit further as having to prove that a deletion took place in order to prevent disclosure means trying to prove a motive behind the action. We believe that all public information – no matter how trivial or out of date – remains public property and must be protected as such. This even goes for cases of updating Government websites with, for example, new advice or regulations for organisations. The old pages must remain accessible so that people can see what has been changed, when and by whom. This is the principle behind wiki-style websites like Wikipedia and should be adopted by the Government and other public bodies.
This is a topic that I, personally, shall continue to push for to its maximum limit – even when I become the subject of FOI requests! – because I truly believe that without freedom of information we really don’t have a true democracy.
The consultation for this Bill has now closed but with the end of the Parliamentary session looming in just a few months there is very little time left to get this Bill scrutinised and passed. If it doesn’t pass by late March when Parliament winds up for the election, then it will automatically fail and someone will have to reintroduce it from the start in the next session.
With quite a lot of legislation in the same position and very limited Parliamentary time left there is the fear that important bits of legislation will be lost in the crush. If you support government transparency then please write to your MSPs and ask them if they support this Bill and to do what they can to help get it over the line before the election. Maybe you’d like to remind them that your vote for them in May may well depend on their response.
