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Comment: Is COVID-19 crushing freedom of information rights?

Carole Ewart, convener of the Campaign for Freedom of Information in Scotland

Comment: Is COVID-19 crushing freedom of information rights?

FOI rights have been restricted by emergency legislation designed to help the public sector focus on responding to the health emergency in Scotland. Requests for information to Scotland’s 10,000 public bodies, however routine and basic, can now take up to 60, instead of 20, working days to answer. Internal reviews on decisions to refuse disclosure can also take up to 60 instead of 20 working days.

Those new timelines delay appeals to the Scottish Information Commissioner (SIC) so significantly that any subsequent information published may be redundant or useless. Those that argue ‘now is not the time’ to complain miss the point about enabling scrutiny and accountability of real time events.

Transparency can be delivered by public bodies in tandem with responding well to our national emergency.

The Scottish Government considered restrictions on freedom of information rights as early as 4 March 2020. We know this due to the answer to an FOI request from Neil Findlay MSP, published on the website of the SIC, who was consulted at various points during that month.

Clearly the emergency legislation had taken some time to germinate but the Coronavirus (Scotland) Act 2020 was delivered at speed, which effectively disabled informed and thoughtful debate. It was published on 31 March and passed on 1 April. Advance warning would have given stakeholders more than 24 hours to organise written briefings and contact MSPs to propose a practical, proportionate approach. 
Stifling debate is not a good way to build public trust.

The result of the drafting and legislative process is that FOI law now focuses on the needs of designated bodies at the expense of the rights of requestors, with no public interest test to speed up the process of disclosure. Although FOI requests should still be answered ‘promptly’, the new timelines delay the information flow. There is real concern that all information requests will be subject to delay as a matter of routine, especially if public bodies are moving staff away from the management and storage of information to other tasks.

The result may be precious few records are created and kept of key decisions, who made them and when. Moving staff prevents the proactive disclosure of information which FOI law encourages. That is manufacturing as well as storing up problems.

Undoubtedly, answering some FOI requests will be impossible, as staff are working from home and buildings are closed, but the solution has to be proportionate and reasonable in all the circumstances. Alternatives to the chosen legislative path were available. There is a suspicion that the purpose of weakening FOI rights and duties is to limit criticism of poor decision-making, but complaints will happen anyway, and it is better to have it led by facts rather than fake news and supposition.

Many people have questions about COVID-19 and they need the Freedom of Information (Scotland) Act 2002 (FOISA) to get answers. FOISA has served the public for 15 years and forced the disclosure of information that can be damaging to a public authority, but it also provides evidence to help public services do better. People play their part in controlling the pandemic by staying home to protect the NHS and save lives, and those same people have questions about what could have been done differently. 

Anecdotally, it appears that requests using the Environmental Information (Scotland) Regulations 2004 are on the increase given the nature of COVID-19. Heightened awareness of them is a good development. Recent events amplify existing concerns about culture in some public bodies and evidence of growing bad practice exacerbated by staff shortages in underfunded departments.

The SIC reported in 2019 that his office carried out 251 formal ‘interventions’ in public bodies, an increase of 17 in one year, due to practice issues. Appeals to the SIC rose by 0.7 per cent in 2018-19. 

Alarmingly, the Scottish Government still remains subject to formal intervention by the SIC to improve its compliance with FOISA. A remedy is in sight as FOISA is currently under scrutiny at the Scottish Parliament, prompted by a critical motion on 21 June 2017, which was passed unanimously by MSPs. 

Written and oral evidence confirmed the need for reform. The emergency legislation expires on 30 September 2020 but can be renewed. The Campaign for Freedom of Information in Scotland (CFoIS) wants the FOI provisions to end then or earlier and wants FOISA to be updated as a matter of urgency.

In the meantime, MSPs have been asked to boost scrutiny of current practice, such as requiring reports from ministers on FOI backlogs accumulating in the public bodies for which they are responsible. Looking ahead, extending FOISA to publicly funded services such as care homes run by the charitable and private sectors can happen quickly if the Scottish Government chooses to act on its recent consultation. After this health emergency, it must and pronto.

  • Carole Ewart has worked on human rights, social justice and public policy issues in Scotland for over 35 years, and for the last 22 years she has served as an independent consultant. Ewart has worked with over 130 organisations to build capacity, share knowledge, empower people and influence public policy decisions. Fundamental to all of this work is the right to access information which enables people to scrutinise decisions and helps individuals and communities to make an informed opinion – a human right contained in Article 10 of the European Convention on Human Rights.
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