How Far Has FOI Come?

Freedom of Information in Scotland. Have we met our objectives?

This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government

The Rt Hon Lord Wallace of Tankerness QC

I must firstly thank Holyrood Communications for inviting me - for the third time – to address this annual Holyrood Freedom of Information Conference. This event has long since established itself as an important fixture in the calendar of those who have an interest in FOI in Scotland. And it is particularly appropriate that we take stock of how FOI in Scotland has fared as we approach the 10th anniversary of the passing of the Freedom of Information (Scotland) Act; as the first Information Commissioner, Kevin Dunion, is about to demit office and as we mark, though probably not celebrate, the centenary of the Official Secrets Act 1911.

[Note with interest the points made by Brian Adam (Minister for Parliamentary Business, the first speaker in the Session)…. ] And I look forward to further discussion with Kevin, Brian and also Zoe Mochrie from the Scottish Government’s FOI Unit It is always a privilege to share a platform with Kevin Dunion. As the Minister responsible for the legislation, ten years ago, I had some idea of the kind of person whom I’d hope to see as Commissioner – robustly independent of government and public authorities, but at the same time fair; well attuned to the need to apply the legislation, not simply by the letter, but in the spirit of fostering a greater spirit of openness in government. I believe Kevin Dunion has fitted that role in an exemplary fashion.

And whilst he is retiring the publication, in October, of the first comprehensive handbook for practitioners on Freedom of Information in Scotland, Kevin’s book, “Freedom of Information in Scotland in Practice”, will ensure that he continues to exert a positive influence on this important aspect of Scotland’s public law and civic life. It may be counted as a landmark in the sphere of freedom of information because it demonstrates that we have now reached a point where FOI is so ingrained in our public life that a book such as that is a necessary addition to any practitioner’s library. Indeed, as Kevin himself noted in the preface, its publication is, if anything, long overdue.

I would like to think that the Act itself, which I took through the Scottish Parliament ten years ago, is a model of clarity. But if the question is “how far has FOI come”, then part of the answer, as far as Scotland is concerned is that is has come to the point where a book such as Kevin’s is welcomed by the legal profession and others. And of course it reflects the fact that, as well as the Act itself, we now have a formidable body of work in the shape of the decisions of the Scottish Information Commissioner.

As Advocate General, I am supplied every working day with a brief digest of cases and legal news. I am always struck by the number of reported decisions of the Scottish Information Commissioner. The volume of that output, and the range of issues which the decisions cover, provide me with regular reassurance that the Freedom of Information legislation, is alive and kicking. And in turn it nurtures my hope that a culture of freedom of information is being promoted.

The book also provides guidance on some of the key issues which have concerned practitioners over these years – or at least ought to have attracted their attention. For example, readers of the Commissioner’s decisions will note a recurring theme – the finding that an application for information should have been dealt with under the Environmental Information Regulations rather than the Freedom of Information (Scotland) Act – the Regulations run parallel to the Act, but it is important to understand the differences between the two systems. You will find a thorough and useful analysis in the book. Another example which practitioners should bear in mind (including government Ministers) is the difference between class-based and content-based exemptions – and reading Kevin’s book reminds one how crucial this distinction is. Those examples might sound very technical – and I mention them partly to illustrate how technical, from a lawyer’s perspective, the FOI scheme now seems. What began as a modest proposal allow ordinary citizens access to the information which affects their lives or which allows them to make informed choices about their participation in a democratic society, can now appear like an opaque body of law. To some extent that process is inevitable, because FOI is a legal structure, that is its strength. It provides a structure for the release of information which not only gives the citizen greater access to information to which he or she ought to have access; it also protects the citizen from unwarranted disclosure. That is, in a system where access to information is overly restrictive, it will nevertheless seep out. Information, it is often said, wishes to be free – and if it does ‘escape’ into the wild, perhaps as a result of accident or even a deliberate leak, it does so without any concern for the privacy or safety of individuals and third parties. By being encouraged to release information, governments and public authorities are able to do so in a way which is considerate of the interests of other people – and can redact names and passages where no public interest arises.

And I stress the word “encouraged” – because what has been created is not only a legal structure but also a public commitment that the proper release of information is a Good Thing and even where the letter of law does not require release, there are occasions where documents should be, nevertheless, in the public domain. The best example in recent years was the decision the former Lord Advocate, Colin Boyd, to release documentation on the Dunblane Inquiry, which, technically, could have remained locked away for one hundred years. That they were released shows that the spirit of FOI is as important as the letter of the law, and that they were appropriately redacted (to avoid individual identification and unnecessary distress) shows a degree of sophistication in the way information is released which is itself a consequence of the FOI system.

And what might appear as legal complexity from reading the Commissioner’s decisions in difficult cases, should not blind us to the basic simplicity of the legislation. The Act says “a person who requests information from a Scottish public authority which holds it is entitled to be given it by that authority.” That citizen does not need to cite legal authority – needn’t refer to the Act, might not even have heard of the Act – but is entitled to the information. That right is being exercised on a daily basis throughout the land, for the most part without controversy (and without recourse to lawyers).

Another important development in the last ten years has been the establishment of the Centre for Freedom of Information at Dundee University. Those of us who attended the opening in January 2009 heard from the father of a pupil at a rural school. The school had been threatened with closure and this man was able to explain how the use of the Act had given him access to information which he could use to challenge spurious claims made by the local authority. That, to my mind, was how the legislation was intended to work for the citizen. The culture of secrecy, where secrecy is the default setting in official minds and processes is by no means vanquished forever, but it has been considerably eroded in the course of the last decade. Now that ordinary people have had a taste of this freedom – a sense of what a truly open society might be like – my feeling is that we can look forward to greater freedom and transparency.

I should acknowledge the Information Commissioner’s achievement in promoting that cultural change. During his period in office, his efforts have been directed not only towards the letter and spirit of this legislation but also in promoting the general principle of wider public access to information. He has assisted public authorities in the development of good practice; and encouraged them to develop publication schemes – schemes which allow for information to be proactively released without anyone have resort to the legislation. The development of the Model Publication Scheme 2011 (available on the Information Commission’s website) is but one example of his efforts in this area.

Of course, what we have at present remains a work in progress. There are many public bodies whose decisions and activities have as much impact on the lives of ordinary citizens as government departments, but who are not subject to FOI. On each previous occasion when I have spoken at this conference, I have reflected on the use - or rather non-use – of the powers available under section 5 of the Act to bring new bodies within the scope of the Act.

When the Bill was going through Parliament, I made it very clear that the intention was that it should be used sooner rather than later. And when I spoke in 2009, I was able to welcome Bruce Crawford’s announcement that the Scottish Government was launching a consultation on the exercise of the power. It is disappointing therefore that the Scottish Government has subsequently rowed back from designating new bodies to be subject to FOISA under s 5 of the Act. That the extension was not favoured by the majority of the bodies proposed for coverage is possibly as predictable as it is concerning. Clearly, for many bodies, the openness which FOISA seeks to promote is still viewed in a negative light.

My current employment has led to an increasing familiarity with the UK Freedom of Information legislation; legislation which governs access to information on reserved areas in Scotland. From the perspective of the UK Government there have been recent moves to extend the regime.

By virtue of an order made under section 5 of the FOI Act, last month, three new bodies were brought within the scope of the Act: the Association of Chief Police Officers, UCAS (the Universities and Colleges Admissions Service), and the Financial Ombudsman Service. MoJ will also be consulting of the inclusion, in future, of bodies as diverse as the Advertising Standards Authority and the Panel on Takeovers and Mergers. The Protection of Freedoms Bill (currently in the House of Lords and expected to gain Royal Assent next year) contains an amendment to the FOI Act, which should bring more than 100 UK bodies within the scope of the Act. The Conference will hear later about some of these developments from Oliver Lendrum, from the Information Policy Unit in the Ministry of Justice.

These developments are part of a the Coalition Government’s wider Transparency Agenda. The aim is not only to build a more open society and empower the citizen, but to promote economic growth. Too often, FOI is viewed in terms of cost – the cost of time to answer enquiries and track down information – when in fact it opens up opportunities for social and commercial developments. It should, by giving those who use public services more access to information about those service, drive up the quality of service to the public. It was as part of an earlier Coalition Agreement that I was able to introduce the Freedom of Information (Scotland) Bill in the Scottish Parliament. For me, that was the achievement of a long held political ambition. My hope then was that we would see the end, or the beginning of the end, of the ‘culture of secrecy’, which had been so persuasive following the 1911 Official Secrets Act. I hoped our democracy would improve with a better-informed electorate. As I’ve reflected in the past I knew that some journalists would use the legislation to focus on usage of ministerial cars or the dinner guests lists at Bute House. I reckoned that a price worth paying.

But many other journalists have used Freedom of Information to uncover information which properly ought to be in the public domain. MPs and MSPs have used the Acts, as have campaigning organisations. I had hoped that some voluntary organisations would make greater use of the Acts to promote their aims, and that is perhaps a development which we will see in the years ahead. And above all, ordinary citizens have used it to hold government, councils or other public bodies to account; and to find out things about their community which they had a right to know.

That FOI is accepted as part of our constitutional furniture is indicative of how far we’ve travelled. But there can never be room for complacency. If Kevin’s successor is as vigilant as Kevin has been and embraces the law and the spirit of the law, that will be a good check against such complacency and ensure that FOI can be ever more effective in the campaign for openness and transparency in government.

Published 10 June 2013