Ten Years of FOISA

A speech given to mark the tenth anniversary of the Freedom of Information (Scotland) Act’s implementation on 1st January, 2005.

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

The Rt Hon Lord Wallace of Tankerness QC

I should begin by, once again, thanking Holyrood Communications for inviting me to address this Freedom of Information conference. It is the fourth time I’ve had this privilege, and each occasion marked a significant milestone in the progress of this ground-breaking legislation. Last time, in 2011, we marked the tenth anniversary of the Freedom of Information (Scotland) Act being passed by the Scottish Parliament. Today, we mark the tenth anniversary of the Act’s implementation on 1st January, 2005. That, in itself, was something of an achievement. The Act provided for implementation no later than 31st December 2005. That it came into force ahead of time –not a phrase government ministers use very often –was a tribute to all those involved.

Not surprisingly, as the Minister who took the Bill through all its Parliamentary stages, I have a paternal interest in its application and development. And obviously I have watched how the present administration has discharged its responsibilities under the Act.

On the day I spoke at the 2011 conference, the Minister for Parliamentary Business, the late and much respected, Brian Adam, used the occasion to announce the Scottish Government’s proposals for a Bill amending the 2002 Act. At that time, although the SNP administration had been in office since 2007, it had only fairly recently won an overall majority in Holyrood.

Now we are able to assess both the amending legislation, and the approach of the SNP government to FOI during its period as a majority government.

And as this is the first public speech I’ve made since she became First Minister, it is an opportunity to congratulate Nicola Sturgeon on her appointment. I hope it won’t be considered contentious or controversial for me to say that I hope Nicola will present a new and fresh style of government, and even in the relatively short period since she took office I possibly detect some difference in tone.

But as well as congratulate her, I’d like to offer encouragement in her commitment to open government. I say this because, before her appointment, the First Minister is on record as having made some very positive noises about freedom of information and open government. Sure, it can sometimes be difficult to hold to those aspirations once real power is wielded but if she stands by what she has said in the past, she should be a friend to those of us, from all parties and none, who believe that governments and public authorities should aim for a culture of openness; and that in doing so, the business of government and administration is improved.

In her introduction to the Scottish Government’s Annual Report for 2013 on Information Request Handling, as Deputy First Minister, Nicola reported an increase in the proportion of cases where the Scottish Government had released information, which, she said, “reflects our commitment to openness and transparency”. Her choice of words echoed her introduction to the 2012 report, where she referred to the Scottish Government’s “on-going commitment to openness and transparency”.

Shortly after her nomination to lead the SNP, she said “I am determined to lead an outward-looking government, which is open and accessible to members of the public…”, and when she delivered her “programme for government” to the Scottish Parliament on 26 November, she said “I intend that we will be an open and accessible government.”

I certainly welcome such public commitments to openness. It is something on which her government can and will be held to account.

However, the Scottish Government’s record has not always lived up to this high aspiration. To look at one example, the Scottish Information Commissioner recently (22 September 2014) published her Decision in the case of a journalist, Mr Andrew Picken and the Scottish Ministers, and she included a pretty damning indictment of the approach taken by the Scottish Ministers to a request for details of the (former) First Minister’s travel and subsistence expenses. The Scottish Information Commissioner said in that case that

“The Ministers’ handling of this request cannot be considered to reflect what the Commissioner would regard as good (or even remotely acceptable) practice in responding to an information request. This is all the more unacceptable given there is a reasonable expectation that information of this type (expenses incurred by the First Minister in the course of his official duties) would be requested and scrutinised.”

The Commissioner has not pulled her punches there, and one can understand her frustration in that particular case. What is the great secret about which hotel abroad the First Minister stays in on public business and the cost of that accommodation? Now, Nicola’s predecessor has many qualities, but a shrinking violet he is not. It is hard to imagine that when staying in a hotel, he does so incognito.

Nor does is seem likely that any great effort is required to find the necessary information to comply with this request –owe would be surprised at any administration which did not keep accurate, and readily accessible, records of its First Minister’s travel arrangements and expenditure. I have also been struck by the number of times I read in summaries of Commissioner’s decisions:

“Ministers failed to respond to the request within the timescale allowed by FOISA. The decision also finds that Ministers failed to comply with the applicant’s requirement for a review within the timescale set down by FOISA”

A decision on 21st November in respect of a request from Shetland Line (1984) Ltd. is one recent example. Aware of the relative frequency of such findings, the MSP for the Orkney Islands, Liam McArthur, recently asked a Parliamentary Question:

How many times, since the beginning of 2008, has the Scottish Government been advised by the Freedom of Information Commissioner that Scottish Ministers had failed to provide a response to, or comply with a request for review, of an FOI request within the statutory 20 day period.

Not, note, how many times have they failed, but how many times had The Commissioner found that they had failed. No, replied Nicola Sturgeon – the requested information could only be obtained at “disproportionate cost as we do not have this data in the format requested”.

Need I say more? It does not seem to be a hugely time consuming task to find out how many times to Commissioner has informed the Scottish Government of a failure to meet the requirements of freedom of information legislation – unless it happens far more often that I imagine.

That reply was given by Nicola Sturgeon just a few days before she took office as First Minister. And, as I said, it is to be hoped that, given the chance to make her own mark on the office of First Minister, she will live up to her – I think sincere – aspirations for open government.

She will doubtless remember that when the Freedom of Information (Scotland) Bill was being taken through the Parliament there was an aspiration then that we would not only match the UK legislation –the Freedom of Information Act 2000 –but we would better it.

I was able to introduce the Bill as part of a Coalition Agreement in the Scottish Parliament, and took it through all its stages. Its underlying principles were accountability, and holding authority to account. It aimed at the structured and responsible release of information in the public interest – a move away from the world of leaked or accidentally disclosed information – but to public information being disclosed and private information being protected.

And we thought we could go further than the 2000 UK Act. I think the perception is that we succeeded and that we produced what is widely seen as the stronger FOI regime.

Both the FOI Acts, one for UK, reserved, matters, and one for the devolved sphere, came into force in January 2005. The UK was not an “early adopter” of freedom of information –countries such as the USA, New Zealand, Australia and Canada already had some form of statutory FOI. However, we took a more advanced approach than many other countries by establishing an “any person” right to access information. There would be no citizenship or residence requirement and no personal interest test. The system we have is, in effect, blind to the characteristics of the applicant.

There were, and are, some important differences between the 2000 Act (the Freedom of Information Act) and FOISA in 2002 – differences which I believe evidenced a stronger commitment to FOI in Scotland.

For example, in the UK Act, a request for information is valid if it is “in writing”. However, in FOISA the provisions of the Act will apply to a request which is in writing or in another form which has sufficient permanence to be used for reference. It is not the form which is important but the fact that a request has been made, and the details of that request are sufficiently clear that they can be referred to at a later date.

Another example relates to costs. In both regimes, applicants may be charged for information and the fees are set out in subordinate legislation. The first step is to determine whether the information requested is held by the public authority. Under FOISA, that initial search is free. A public authority therefore knows that if it keeps its records in such a condition that this initial search will be time consuming, then it cannot recover the cost from applicants. By contrast, under the 2000 Act, the initial search is chargeable if the staff time taken to find out if the information is held exceeds a prescribed time.

There are also differences in the method used for calculating fees for supplying the information – staff time is capped at £15 an hour under FOISA, but the UK legislation prescribes a flat rate for staff time of £25 per hour. It is not clear if there is, in practice, a great difference in the costs actually charged to applicants. However, it is clear from Scottish Information Commission Decisions that the Commissioner keeps a close eye on the question of costs.

There are also contrasting provisions on the time allowed to the public authority to comply with a request for information held. A Scottish public authority must comply with a request under FOISA within 20 working days, a timescale which I think many authorities find challenging, depending on their record keeping. The 2000 Act applies a “reasonableness” test, but only requires a response within 20 working days – that response may fall short of actually complying with the applicant’s request. There is also provision for a time limit to be lifted in the UK regime. For example, schools, for perhaps obvious reasons, do not have to respond during school holidays. (It might seem equally obvious, however, that it is precisely during the school summer break, for example, that parents might need information about a school).

We should also take some pride in the appeals process in FOISA –which is fairly brisk. The first step is an internal review by the public authority, which is mandatory. The applicant may then, if not satisfied with the review, seek a decision from the Scottish Information Commissioner. That decision is final, although applicants can seek judicial review, on a point of law, in the Court of Session with, ultimately, appeal to the Supreme Court. By contrast, appeals under the 2000 Act have attracted criticism for being over-elaborate. The system has been described as an “assault course” and the decision and appeal mechanism, which can drag out for years, is not for the faint hearted.

The other issue which attracts comment is exemptions –that is, the occasions when information or persons are exempt from the requirement to disclose information, and the question of whether, and when, a public interest test applies. A different approach to drafting was taken in the Scottish Act, where a number of specific exemptions were set out in the legislation, each quite tightly drawn up. This makes it, I think, harder for an authority to argue, on a broad brush approach, that a particular exemption applies. And a crucial difference between the schemes is that under the 2000 Act, for a qualified exemption, an authority must demonstrate simply “prejudice” in contrast, a Scottish public authority arguing for a qualified exemption under FOISA must show “substantial prejudice”.

The success of the legislation is not so much that individuals can demand information from public authorities, but that there are an increasing number of occasions when no demand is necessary – the material is readily available. I have always maintained that legislation could only take us so far. Legislation had to go hand in hand with a change of culture. The culture of secrecy had pervaded officialdom for too long. By contrast, a culture of open government is one which should grow and be nourished by legislation such as FOISA – it lies in the many decisions which officials make on a day to day basis, to put information in the public domain, or to answer a simple request without further prompting, because they know that there is an underlying legal right to that information.

So, after ten years, I take some satisfaction in FOISA and I hope you will allow me some pride in its success.

And I welcome the improvements which the present Scottish Government has made to the legislation with the 2013 Act. The power in section 5 to designate a body as one to which the Act applied had not then been used since the Act was passed. A new requirement was added, for the Scottish Ministers to report to the Parliament on their use of those of those powers. In addition, there is a requirement for more extensive consultation than provided for in the original legislation. That is welcome. So too is the first exercise of the section 5 power to apply the FOI regime to bodies which supply culture and leisure services to local authorities.

But welcome though it may be, it falls far short of legitimate expectation.

On every 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. 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 was disappointing therefore that the Scottish Government subsequently rowed back from designating a broader range of 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

Too often, I fear, 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.

If we are going to follow the public £, we should be thinking in terms of bringing the larger housing associations and private prisons within the scope of FOISA. I very much hope this is a further area where the new First Minister’s commitment to greater openness will show results.

But reflecting on ten years of FOISA, I would like to think that its main value has been in the way it has empowered ordinary citizens. Of course, it is cases like ministerial accommodation or advice on EU membership (or the lack of it) which make headlines. But at the opening of the Centre for Freedom of Information at Dundee University almost six years ago, I recall hearing of individual case studies which made the passage of the Act seem so worthwhile. I particularly recall hearing from the father of a pupil at a rural school which had been threatened with closure. This parent 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.

In recent weeks, we have had the report on the tragic deaths of patients at Vale of Leven Hospital. As I understand it, it was effective use of FOISA by some family members and their assiduous MSP, Jackie Baillie, which uncovered that the extent of the tragedies was much greater than originally imagined.

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.

And before concluding, I should wish to acknowledge the role played by the two Information Commissioners over ten years. Kevin Dunion and Rosemary Agnew have both ensured a robust but fair approach to the implementation and exercise of the legislation; and the extent to which it has worked well for the public good, in no small way, is due to their effective oversight.

As we look ahead I hope that with a fresh administration in Holyrood, we will see a renewed impetus to develop and broaden a culture of open government and transparency in Scotland.

Published 19 December 2014