A consultation has opened on a Bill proposal by Katy Clark MSP in relation to a potential Scottish Parliament Member's Bill to reform the existing Freedom of Information regime.
The consultation seeks views from everyone with an interest in access to information, particularly members of the public, MSPs, Ministers, civil society, trade unions and designated bodies, asking consultees to assist in "highlighting potential problems, suggesting improvements, and generally refining and developing the policy".
The existing regime is set out in the Freedom of Information (Scotland) Act 2002 (FOISA). Although FOISA has been subject to modifications and extensions since being passed, it has not been subject to the wholesale review and modernisation that this Bill proposal is now seeking.
The key changes in the Member's Bill, which key stakeholders may wish to consider when deciding whether and how to respond to the consultation, are:
The definition of "information"
- The consultation seeks views on whether the current definition of what constitutes "information" for FOI purposes needs to be amended to accommodate changes in technology, ways of working and holding and processing information, e.g. to ensure access to the detail of decision making algorithms is clearly part of the regime.
A broader definition of "public authorities"
- The consultation seeks views on how to effectively and efficiently broaden the organisations to whom FOISA applies, e.g.:
- to accommodate the significant changes in how public services are being delivered, it is proposed to widen the scope to cover joint venture ALEOs and private sector entities to whom certain public sector services contracts are awarded; and
- bodies that have mixed functions or no reserved functions (as that term is defined in the Scotland Act 1998) would also be covered automatically, rather than being covered only if designated by the Scottish Ministers. The example given in the consultation document of a body that would be covered by FOISA as a result of this change is the Convention of Scottish Local Authorities (CoSLA)
What does "information held" mean
- Just before Christmas last year, we published an article about the updated guidance from the Information Commissioner's Office reminding public bodies that information contained in private correspondence is subject to the Freedom of Information regime where it relates to the work of public bodies. Against that background, it is perhaps not too surprising to find in the Member's Bill a proposal to change FOISA to reflect that guidance, and to ensure that information about the work of public authorities is covered by FOISA by virtue of its nature, rather than where or how it is held or ownership of devices. Linked to this is the proposed establishment of a new offence of concealment of information on private devices.
Freedom of Information Officer
- A newly created requirement for organisations to have an identifiable Freedom of Information Officer, similar to the role under the GDPR and Data Protection Act 2018 of a Data Protection Officer.
Exemptions
- A reduction in the number of exemptions to the general obligation to release information, including removal of the national security exemption and limits on the commercial interests exemption, and the application of the public interest test to all exemptions which remain.
Appeals
- Potentially introducing a more accessible means of appealing decisions of the Scottish Information Commissioner.
Crown Office and Procurator Fiscal Service
- Making the Crown Office and Procurator Fiscal Service subject to decisions of the Commissioner, as the CPS is under the equivalent regime in England and Wales.
The consultation is open until 2 February 2023.
Our government, regulation and competition colleagues will be delighted to provide support and advice on responding to this consultation. If we can help, please get in touch.
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