Last month we published an article about the consultation on a Bill proposal by Katy Clark MSP in respect of potential reform of the Scottish Freedom of Information regime. Since then, a second consultation has opened on changes to the FOI regime, this time issued by the Scottish Government.

As is the case with the consultation on a Bill proposal by Ms Clark MSP, it will be a worthwhile exercise for stakeholders across the public, private and third sectors - particularly where private and third sector organisations are engaged in delivering services on behalf of the public sector - to consider the consultation document, and whether they wish to submit a response.

The themes addressed in the Scottish Government's newly published consultation document can be summarised as follows:

  • The agility of the existing freedom of information regime

This section focuses on the changing ways in which public sector bodies deliver services and ensuring adequate access to information where services are outsourced to providers that are not themselves public bodies.

In particular, the Scottish Government highlights that it wishes to avoid significantly increasing the administrative burden on SMEs and third sector entities and seeks views on managing this. At the same time the consultation acknowledges that the Scottish Information Commissioner has suggested using existing legal powers to extend FOI to third party providers of health and social care services, PFI/PPP/NPD contractors and HubCos, and third-party transport providers, in the same way that the regime was most recently extended to registered social landlords.

There is also a suggestion that the section 60 code issued by the Scottish Ministers might effectively compel public bodies to ensure contractual rights of access to information held by third party providers, so that it would be "held on behalf of" the public body in question, and thereby covered by the FOI regime without the third party providers needing to be designated as FOI-able bodies more generally.

An alternative approach, used in Ireland, specifies that information held by a third party that relates to the provision of a service to a public body, is held by the public body for FOI purposes.

  • Accommodating developments in Information Technology

This relates to the definition of "information", and, in particular, whether it is clear enough to those who are tasked with responding to FOI requests that they need to search for requested information on unofficial channels used by employees in their organisation (such as WhatsApp groups) as well as official channels.

The Scottish Government notes that the law already requires this, and it is not persuaded that a change to the current legislation to broaden this definition is the appropriate solution to the matter of shifting use of technology (and specifying that WhatsApp exchanges are included, for example, could have the unintended consequence of suggesting that other new, or future, means of communication are not). It therefore also seeks stakeholder views on a possible update of the Section 60 Code of Practice to make it as clear as possible that all information that relates to the work of a public body is covered, whether on official channels or otherwise.

  • Improving proactive publication

This section focuses on the current obligation to adopt and maintain a publication scheme and seeks views on whether this is sufficient. In particular, the Scottish Government seeks views on whether an obligation to publish should be put in place (supported by a Code of Practice on publication) or whether there might be an alternative to this.

  • Technical and other issues

This section addresses and seeks views on a variety of possible changes to the law that have been suggested by others, including:

  • changing how bodies should estimate costs of complying with requests so that this is purely time-based rather than based on the cost of staff time (recognising that the £600 cost limit combined with the £15 per hour cap has, due to inflation, effectively meant that the cap will always be 40 hours);
  • allowing requests to be transferred to another Scottish public authority;
  • pausing rather than resetting the 20-working day response time where further information is needed from the requester, to discourage inappropriate use of this to "buy time";
  • allowing the Scottish Information Commissioner to consider appeals concerning decisions by procurators fiscal or the Lord Advocate (although the Scottish Government appears to remain of the view, previously stated when FOISA was originally introduced, that the Scottish Parliament does not have the power to subject the Lord Advocate to such a restriction of her independence); and
  • removing the First Minister's power to overrule the Scottish Information Commissioner in certain circumstances (the Scottish Government's view is that this is an "important safeguard", and the First Minister is democratically accountable for its use).

The Scottish Government's consultation closes on 14 March 2023 and 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.


Jamie Dunne

Senior Associate