Erin Ferguson examines the Scottish Information Commissioner’s special report…
Freedom of information (FOI) legislation has recently celebrated its tenth anniversary in the United Kingdom. Overall, the UK FOI regime has been deemed successful. 400,000 requests for information have been made in the past ten years, leading to some notable disclosures and helping to establish a greater culture of transparency in public services.
Nevertheless, the Scottish Information Commissioner Rosemary Agnew recently warned that the scope of FOI in Scotland (under the Freedom of Information (Scotland) Act 2002) has reduced and that people now have less access to information than they did a decade ago.
On 19 January Agnew published a special report entitled “FOI 10 Years On: Are the Right Organisations Covered?” The report is limited to the Scottish experience, but addresses a challenge faced throughout the UK. That is, how can FOI obligations be extended to cover the wide range of organisations that now have responsibility for public service delivery?
Agnew called the introduction and implementation of the FOI Act one of Scotland’s “major success stories,” but warned that changes in public service delivery are eroding information access rights. As functions are outsourced or transferred to arm’s-length organisations, they no longer fall within the scope of the FOI Act. The transfer of social housing, for example, from local authorities to housing associations means that 15,000 households in Scotland have now lost information access rights. This affects not only access to information, but also access to justice. The loss of appeal rights to the Scottish Information Commissioner means that the public are faced with the more costly option of appealing through the courts. It is clear that FOI plays an important role in encouraging transparency and promoting civic engagement, so how can this be preserved?
The report noted that the FOI Act was introduced with the intention of extending coverage to additional bodies. A Section 5 Order allows Ministers to designate additional organisations as public bodies, but Agnew reported that this mechanism has been ‘woefully underused.’ Ministers have only exercised these powers on a handful of occasions (e.g. on 1st April 2014), and whilst it is difficult to say why they have not made greater use of this mechanism, the report speculated that lack of political will and misunderstandings over what constitute a public function might be among the reasons. Therefore, Ministers will need support in order to make greater use of the Section 5 Order.
Whereas previous debates on whether to extend FOI coverage have focused too narrowly on the structure of institutions and how they are funded, greater consideration should be given to the nature of the functions performed. As it is ultimately up to the Ministers to decide what constitutes a function of a public nature, a factor based approach can help to determine whether an organisation should be designated a public body for FOI purposes. Factors would include whether the organisation is taking the place of a public authority in carrying out a particular function and whether the functions are derived from or underpinned by statute. (A full list of factors can be found on p.18 of the report.)
The factor based approach would make the designation of additional bodies more open and transparent, and might also help to alleviate some of the challenges that have arisen from extending FOI coverage. Academies and Free Schools, for example, were brought in under the UK FOI Act in 2010. Since then, there have been some notable releases of information, but also some well-known instances in which information has been withheld, leading to lengthy appeals. The Department for Education (DfE) has withheld information on free school applications, relying on exemptions under Section 35 (information related to formulation of government policy) and Section 43 (information likely to prejudice the commercial interests of any party) to withhold information. Although this is merely one example and should not be understood of evidence of a widespread phenomenon, it does demonstrate that a tension remains when balancing the public interest in disclosure against the public interest in withholding information. Will extending FOI coverage to additional bodies simply lead to greater use of exemptions? Or will the factor based approach help to clarify which functions should be covered and why?
There is no straightforward answer to these questions, but the report suggested that support for newly designated bodies can help to ensure smoother implementation. Likewise, the public will need support as the gaps and inconsistencies created by changing models of service delivery has led to some confusion over which rights they hold. After all, as page 9 of the report says, ‘the existence of a right is one thing; making it straightforward to use is something else entirely.’
Erin Ferguson is a PhD Researcher at University of Strathclyde Law School. She blogs (http://www.erincferguson.com) and tweets (https://twitter.com/fergusonerin).
Act Now Training runs the Practitioner Certificate in the Freedom of Information (Scotland) Act 2002 which is endorsed by the Centre for FOI (based at Dundee University). The course structure is designed to thoroughly examine the law as well as the practical aspects of dealing with FOISA (and EI(S)R) requests on a day-to-day level. Read what the tutor has to say and have a go at the FOISA test.