FOI brings transparency and honesty

As part of our platinum anniversary blog series, Mark Conroy, senior solicitor at Renfrewshire Council and member of our Privacy Law Sub-committee, argues that freedom of information legislation has changed the landscape in Scotland and brought about more transparency and honesty.

The Freedom of Information (Scotland) Act 2002 has led to a major improvement in government transparency and has set strong standards for openness and accountability.

Freedom of Information came into full force across the UK through the Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002 on 1 January 2005, off the back of the UK Government’s published proposals in the 1997 White Paper, Your Right to Know.

It introduced an enforceable right to have access to the information held by Government departments and public bodies, regardless of the reason for wanting the information (with the exception of environmental information, where the right of access is governed by the Environmental Information Regulations 2004).

The Freedom of Information (Scotland) Act 2002, changed the landscape in Scotland in the following ways:

any information held by a public body should only be kept private only when there is a very good reason to do so and it is permitted by the Act i.e. exempt information

an individual does not need to provide a reason for wanting information. On the contrary, the public body needs to justify any occasion when a decision is made to refuse providing the information

all requests for information are equal and determined on their own merits

the information an individual can get under Freedom of Information should not be affected by who they are, whether they are journalists, local residents, public authority employees, or foreign researchers

In some circumstances, even exempt information may have to be disclosed if the balance of public interest favours openness.

Applicants who are dissatisfied with how their request has been dealt with can complain to an independent body, the Scottish Information Commissioner, who has a broad range of powers, including ordering the public body to disclose the information.

The legislation can extend beyond public bodies to organisations that deliver public services and benefit from public funds. In fact, this has long been the intention. The Freedom of Information (Scotland) Act (Designation of Persons as Scottish Public Authorities) Order 2019 is due to come into effect in November 2019. While Registered Social Landlords (RSLs) have been subject to disclosing environmental information for a number of years, RSLs are due to come into scope of the Freedom of Information (Scotland) Act 2002 for the first time.

The scope of Freedom of Information on private companies could change and expand quickly. Elizabeth Denham, the UK’s Information Commissioner, brought a spotlight on the debate of private companies which provide public services being brought under the remit of Freedom of Information legislation.

Even with all the success of Freedom of Information in Scotland it would be foolish to say challenges don’t remain, particularly as information and data becomes more and more valuable.

Public trust in politics probably hasn’t been lower than it is today. It is then hard then to argue that Freedom of Information was entirely successful in what it set out to achieve back in the White Paper. Was it a watershed moment in the relationship between the people of the UK and the institutions that govern them? Probably not. Do the public feel that Freedom of Information brought in a new age of openness, transparency and accountability? A new age of trust in their government? Unlikely.

Has it laid a framework for honesty in government? Making meaningful public participation and informed discussion possible?

Yes, it has.

If you would like to contribute a blog on the biggest change or the most significant piece of legislation you have seen during your career or your prediction for the future, please email your 300 word blog in a Word document to comms@lawscot.org.uk