FoI experts debated whether the Act should be strengthened or a more open culture be allowed to evolve naturally, reports William Peakin

Minister for Parliamentary Business Bruce Crawford has pledged the Scottish Government to lead a culture change in the public’s right to information.

Crawford, speaking at the 5th annual Freedom of Information Conference, organised by Holyrood magazine, said: “This government is in a position to lead on that culture change, not least because of the considerable advantage we have - having been on both sides of the FoI process.

“It is certainly no secret that we made significant use of the rights provided for by FoI while in opposition. However, many of us who made FoI requests previously are now the ones having to answer them.

“From my perspective this gives us a key strength. We have the benefit of having first-hand experience of both positions. And I believe we can build on this unique standpoint to drive forward the culture change that a successful FoI regime requires and indeed deserves.”

Crawford said the Government had identified six guiding principles (available on its website), but he said he regarded the most important as being: ‘…to make as much information available as possible without having to be asked.’ He said there are already rule-based publication schemes, “but the indications are that these are not always fulfilling their potential. The ultimate goal is surely making the most amount of information available to the widest possible audience.”

Over the next six months, the Government will work on improving and expanding the information made publicly available and increase its accessibility to the public.

Crawford said the culture change was required not only within public authorities but also among those making requests. “I am not talking about a particular ‘type’ or occupation of requester. It’s just about learning from requests and from the way they are made generally. I want to ensure that FoI has continuing credibility, and that there is confidence in the process for both the public and public authorities.”

The Government has published a guide to assist requesters and the minister urged public authorities to adapt or develop its approach in a way that best suits their own organisations.

Crawford addressed the issue of extending the coverage of the Act: “I understand fully the concerns about accountability and access to information held by organisations not covered. When you scratch the surface of these concerns, however, the issues immediately become more complex than at first sight they might seem.

“We need to consider the specific and unique circumstances of various organisations, and also balance a number of competing arguments. While it would appear in some circumstances that the ability to access information has been lost, we need to be clear that this is in fact the case. Is the aim to broaden the rules or deepen the culture? I believe it should be the latter.”

Kevin Dunion, the Scottish Information Commissioner, said it had been clear that the experience in Scotland would be different from the rest of the UK and the numbers of requests and decisions north of the Border bore this out. There have been a number of highly significant decisions; publication of surgical mortality rates (now adopted proactively south of the Border and the subject of a ruling in the US), for example, and publication data on sex offenders at a local level. Dunion said the dire consequences he had been warned about had not materialised.

In Scotland, unlike Westminster, there had been no attempt to limit the scope of the Act or restrict the amount of information provided. The FoI legislation in Scotland was strong when presented to Parliament, he said, and it had benefited from parliamentary scrutiny and had not been the subject of attempts by legislators to tinker. If the latter had occurred then the losers would not be journalists or lawyers, but the general public who generate the majority of requests.

Dunion said that although the public is using the Act, there are still sections – immigrants and the young, for example – who are losing out: “We need to expand awareness.”

He was also concerned about the possibility of existing rights being lost as the nature of public service delivery changes. A housing association tenant can still apply for information, he said, but they have lost the right of appeal to the commissioner. A prisoner transferred to the privately-run Kilmarnock prison cannot use the Act. Although Glasgow City Council has attempted to ensure that services transferred to trusts still operate within the spirit of the Act, this approach could not be guaranteed across Scotland.

Dunion referred to recent rulings on PFI/PPP contracts: “I’ve made it clear that blanket claims of confidentiality are unlikely to succeed.” But he said because of the sheer size of some of the contracts, there was a role for Audit Scotland and the Government to shape them in a way that would allow transparency while retaining commercial confidentiality where justified.

Research has shown that public authorities are positive about the legislation and have made improvements in record-keeping and transparency. But it is still reactive, said Dunion. It needed to be proactive and he pointed to Scottish Natural Heritage’s new SNHi site as a positive example of an organisation spending public money making information transparent. “SNH’s new portal starts from the premise that all of the research commissioned and information gathered by SNH has been done with public money and should therefore be publicly available – improving knowledge of Scotland’s environment and also, by the way, avoiding wasteful duplication where the same type of research is commissioned by others unaware of what SNH currently holds,” he said.

A good FoI Act is now the badge of a modern progressive democracy,” said Dunion, “Countries are beating a path to my door to hear of the Scottish experience. However, the right to information is one thing; arranging our affairs to create and make available that information without seeing what exemption can be applied is quite another.

“People in authorities baulk at talk of a culture of secrecy although in mitigation, I would point out it has been explicitly used by Jim Wallace the keynote speaker last year. And the need for such a change has been forcefully made by our current minister who has a strong track record of FoI advocacy. In Scotland we have had tolerant co-existence between FoI and business as usual. I would like to see FoI become part of the transformative agenda of a modern Scotland where it becomes clear that the privilege of working for or in partnership with the public sector is transparency.”

Extending the Act
In considering how the changing shape of the public sector landscape is affecting the right to know, Fiona Kordiak, director of audit services with Audit Scotland, outlined the work of the organisation and the means that exist outwith the FoI Act to ensure that public money is properly spent and accounted for. Kordiak said that public auditing was delivered in Scotland through three bodies: the Auditor General for Scotland, the Accounts Commission and Audit Scotland, and she cited some of the recent cases where these had investigated public authority performance.

Audit Scotland follows the ‘public pound’, said Kordiak, from policy formulation in central government to service delivery, which could be local government, the NHS, Scottish Water and so on. “We believe we’re uniquely placed to consider and comment on issues that span traditional organisational boundaries and this is becoming increasingly important as the shape of public service delivery evolves,” she said.

The landscape was dynamic, she said, with an increasing number of ‘arm’s length’ organisations delivering public services and there was a need to ensure best value. “It is important to remember that it is the public bodies themselves that remain accountable for how the money is spent.” The audit process had evolved with the changing landscape and increased public expectation, she added.

The principles of audit are based on independence, scope – covering financial regularity and probity, value for money and corporate governance – and crucially, said Kordiak, reporting in public. reports are numerous and well-publicised. “We believe our audit process provides assurance to the public that their money is being wellspent.” She said that under FoI, the public could only ask for information they know exists: “We see our work in adding to their awareness of where their money goes.”

Kordiak concluded that new arrangements should not get in the way of good governance or access to information; reporting in public was key to their work; the public is interested in the new funding arrangements; and the quest for information mirrors following the public pound.

David Goldberg, co-convener for the Campaign for the Freedom of Information in Scotland, said designation was a visionary part of the FoI Act in Scotland; the changing public sector landscape was not a significant factor then. “However, it’s not working,” he said, “ministers are not designating bodies; this is turning into a conversation about a conversation – we need to move to an alternative strategy.” He said there were precedents in law for including other bodies, internationally but also in terms of the Environmental Information regulations; the notion that private bodies are intrinsically covered by the scope of the law is built into the regulations.

Goldberg also said that in terms of the balance between law and culture, he did not think that the development of FoI should rest at the door of culture change: “We live in a parliamentary representative democracy; the rules of the game are set by parliament, therefore it seems to me that when it is necessary to amend the law, it should indeed be. Implementation, monitoring compliance, these things are important but I believe it is now time to revisit the law.”

A full report of this conference in PDF format is available for download here 

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