We need to strengthen Freedom of Information to stop policymakers retreating to WhatsApp

In my desk drawer at home I have an assortment of ancient cables, business cards and old phones of varying usefulness that I am reluctant to throw out in case, at some point, there’s an emergency in which only some obscure connection can somehow save the day. Until that day, they sit silently in the dark gathering dust as a time capsule of how the world worked twenty or so year ago. A reminder that things have changed.

Scotland’s Freedom of Information legislation – FOISA - is about the same age as the contents of my drawer. In that time it’s become a vital part of our democratic structure, and a free and enforceable tool used daily by journalists, MSPs, researchers, campaigners, and members of the public who just want to know what has happened and what is happening.

Those principles of transparency and accountability stand true today. But just as everything I hoarded twenty years ago seemed an inevitable part of the future at some point, some have met the test of time more than others. The way we go about business has changed in a way not predicted by politicians and legislators more than twenty years ago. This law is now out of date.

The National Union of Journalists (NUJ) doesn’t just defend our members in their workplaces. It campaigns for media freedom, and lobbies for the public’s right to know. If the talk around your watercooler, or in your café, or on a Slack channel, or at your dinner table is of the costs of the trams inquiry, the running of CalMac, the 1,700 items which Glasgow’s museums appear to have mislaid, the most dangerous parts of the A9, the cost of the policing of Donald Trump’s Scotland visits, or the costs of the Edinburgh trams inquiry,  or any of a multitude of stories in the news agenda in any given day, then that is because of the work of our members around Scotland – and the invisible hand of FOISA that helps them keep you informed.

Invisible, that is, to most of those who read, listen to or watch the news. To the journalists putting in those requests, as well as the officials handling them – and the NUJ’s membership contains both – the benefits and flaws and frustrations of FOISA are felt on a daily basis. The requests handled differently because they come from a journalist. Political advisors instructing officials on how to handle a request. The spurious grounds for denial of reasonable requests that will inevitably be overturned on appeal, simply because if you can’t deny, you can always delay.

And delay they do. When one identical FOISA request made to 32 local authorities was made, over half did not reply within the 20 day deadline, and three did not reply at all. When a journalist asked 30 separate public bodies for their response to the declaration of a climate emergency, only one - NHS National Services Scotland - insisted on treating it as an FOI request, bringing it into the allowable 20 day statutory time period for responses.

Our laws define our lives, our communities, and our institutions. They set down a clear vision of the society we want to live in. But however well drafted or well intentioned, legislation falls down when the world it was intended for, and the world in which it operates drift apart.

Take the list of bodies covered by the legislation, as one example. This was designed for periodic review and redesignation, so the law could continue to be relevant to public life. However, the promised agility has been elusive. In 2002 there was the first understanding that registered social landlords should be included to the list of bodies covered by FOISA. It finally happened in 2019.

An even clearer omission is when public services are outsourced to private companies – something that is often invisible at the point of delivery to the public.

FOISA shines a torch into the darkness of public institutions, bringing decision-making and public spending into the bright glare of public accountability. Many organisations have spoken of the positive change the legislation had brought about, from improved record-keeping to a better culture of information sharing. But for every bit of information illuminated, other policy decisions retreat back into the shadowy corners of WhatsApp and private emails.

It's been over three years since the legislation was reviewed by the Public Audit and Post Legislative Scrutiny Committee held extensive consultation on FOISA and called on the Scottish Government to strengthen and update the legislation. They knew what needed to be done, we know what needs to be done, and the public knows what needs to be done. It’s frustrating that the position of the Scottish Government is to hold further consultation about whether anything needs to be done.

This isn’t just about journalism. It’s not some obscure and dusty legislation that matters only to policy twonks and parliamentary clerks. The effectiveness or otherwise of our Freedom of Information laws send the strongest statement about the democracy we live in and how we hold accountable those who make decisions on our behalf, and in so doing, shape the way those decisions are made.

Nick McGowan-Lowe is national organiser for Scotland at the National Union of Journalist (NUJ). He is speaking at Holyrood's Freedom of Information 2023 event.