Freedom of information reform plans ‘not workable’

Proposed reforms to freedom of information (FoI) laws are “not workable”, a cross-party committee of MSPs has concluded.

The plans, brought forward by Labour MSP Katy Clark, attempt to update the 2002 legislation and increase transparency.

The parliament’s standards committee, which has been scrutinising the member's bill, agreed there was a “clear need” to update the law.

However, it expressed several concerns over these proposals, and further work would be needed to deliver its objectives.

With the end of this session of parliament looming, the committee has encouraged the next Scottish Government to bring forward FoI reforms.

Convener Martin Whitfield said: “Freedom of information is a fundamental part of how our public services in Scotland are delivered. The work done by Katy Clark MSP establishes a clear need to update the law that underpins it.  

“However, our committee is not convinced that this bill is the right approach in its current form.

“The Scottish Government should be taking action to develop an updated and forward-looking FOI regime for Scotland. If not, a committee bill may be the most appropriate legislative means to deliver this complex and important reform.”

Clark’s proposal included the introduction of a presumption in favour of disclosure and new duties to encourage proactive publication of information.

The committee was not persuaded by the arguments for either measure, instead suggesting more effort should be put into improving culture and practice within organisations. 

The bill also seeks to widen the number of bodies covered by FoI laws and remove the first minister’s veto power on some decisions of the Scottish Information Commissioner.

The committee said it was “unconvinced” that these proposals were “workable”, also noting significant uncertainty around financial and resource implications of any changes.

It comes as the Scotland’s information commissioner begins legal proceedings against the Scottish Government in over the failure to release materials related to the James Hamilton report into the conduct of former first minister Nicola Sturgeon.

Clark said: "There's a general acceptance from the committee that new legislation is required to strengthen the law. In its report, the committee supports the main thrust of my bill to create a proactive publication duty and to strengthen the powers of the information commissioner.

"Critically, it supports scrapping the first minister's veto over freedom of information, something that John Swinney has shamefully refused to rule out using to prevent the release of the Salmond papers.

"While it's disappointing that the committee has not backed criminalising the act of deliberately erasing public records, there's a clear recognition that the existing laws are outdated.

"The SNP has spent almost the entire parliament resisting and obstructing attempts to work across party lines to extend freedom of information laws. In light of the committee's findings and public outrage over the Salmond papers, John Swinney must do the decent thing and abandon the government's disastrous approach.

"There's still time for the First Minister to back robust changes to our freedom of information laws before the end of this parliament. Anything less would be a betrayal of the public's right to know about the work of government and public bodies." 

The Freedom of Information (Scotland) Act was introduced in 2002, one of the first acts of the devolved parliament. 

It put an obligation on Scottish public bodies to disclose information, and established the Scottish Information Commissioner office to oversee the law.

Commissioner David Hamilton has previously voiced his support for reforms, stating: “By acting to protect and update FoI now, MSPs can ensure that the public’s right to hold public bodies to account remains fit for purpose for the future.”

The Scottish Government has also been consulting on extending FoI laws to care providers. Advocates of this argue that care services provided by local authorities and health boards are covered by the law, but private or third sector providers are not.