Report by Chris Bartter of the Campaign for Freedom of Information in Scotland summarising the discussions which took place at the International Conference of Information Commissioners in Manchester, 19-21 September 2017. The report was presented to the Scottish Public Information Forum on 28 September 2017.
A second meeting of the newly revived Scottish Public Information Forum (SPIF) takes place in Glasgow on International Right to Know Day (28 September) and will discuss concerns about the way Scotland’s political leaders are likely to interpret calls for inquiries and reviews of the FOI regime.
The SPIF, revived by the Campaign for information in Scotland (CFoIS) is joining forces with the Glasgow Council for the Voluntary Sector (GCVS) to host this event, aiming to raise awareness amongst community organisations, services and individuals of their ¨Right to Know”.
Photo: Campaign for Freedom of Information
When: 1 and 8 November 2017
Where: Free Word Centre, 60 Farringdon Road, London EC1R 3GA
Time: 1:30 – 5:00 pm
The Information Commissioner has issued over 10,000 decision notices under the Freedom of Information Act and Environmental Information Regulations – while the Information Rights Tribunal has published over 1,800 decisions. A significant number of appeals to the Upper Tribunal and courts have also been decided. These complex decisions are essential materials for anyone trying to understand what public authorities must do to comply with the legislation.
This course, now in its 12th year, is aimed at experienced FOI practitioners and others with a good working knowledge of the legislation. It highlights the latest developments in the way the exemptions, public interest test and the legislation’s procedural requirements are being interpreted.
Photo by Sanwal Deen on Unsplash
When: Wednesday 4 October 2017
Where: Free Word Centre, 60 Farringdon Road, London EC1R 3GA
Time: Registration 9:45 am, course 10 am – 5:00 pm
Do you want to learn how to use the Freedom of Information Act? Are you already using the Act, but want to know more about how key provisions are being interpreted?
Making a FOI request is straightforward but making an effective request can be more difficult. Requests that ask for too much information can be refused – and some information may be exempt. But a well thought-out request can have a powerful impact, revealing that a policy isn’t working, an authority isn’t doing its job or generating key information for your research.
This practical course is designed to help campaigners, researchers, journalists and others make the most of the Act and the parallel Environmental Information Regulations. It explains the legislation, shows how to draft clear and effective requests, describes how to challenge unjustified refusals and highlights critical decisions of the Information Commissioner and Tribunal. The course’s interactive sessions will encourage you to work out how best to apply the Act in a variety of situations. The course is aimed at both beginners and those who are already using the Act but want to do so more effectively.
The Campaign for Freedom of Information has drafted a bill which would bring both housing associations and private contractors providing public services under the Freedom of Information Act.
Housing associations are not subject to the FOI Act and can refuse to answer requests about fire risks, safety problems, eviction policies, waiting lists and other matters.
Since 2015, the Campaign for Freedom of Information in Scotland (CFoIS) has called for an inquiry into the operation of the Freedom of Information (Scotland) Act 2002 (FoISA) as we are concerned that it has become weaker in practice and has failed to keep up with international best practice.
This report focuses on informing the post legislative scrutiny of FoISA and sets out what additional measures are required to ensure the right is robust and effective in enabling people to get the information they want when they need it.
A draft Bill set out in today’s Queen’s Speech will lead to an unnecessary layer of secrecy about investigations into patient deaths and injuries, says the Campaign for Freedom of Information.
The draft Patient Safety Bill will put the work of the newly formed Healthcare Safety Investigation Branch (HSIB), which investigates selected NHS safety incidents, on a statutory basis. The HSIB will be required to publish reports of its investigations, but will be prohibited by law from revealing any other information obtained during its investigations. FOI requests for such information will automatically be refused.
The minutes of the Scottish Public Information Forum Meeting on Friday 12th May are available here. The next meeting will be held on 28th September 2017 in Glasgow.
The Campaign for Freedom of Information in Scotland (CFoIS) today welcomed the report of the Scottish Commission for Parliamentary Reform  but urged prompt action to require the Parliament to become more open, accessible and accountable in line with its founding principles.
CFoIS submitted evidence to the Commission and made FoI requests to check out how the parliament is operating. CFoIS has drawn up five areas for targeted action following the Commission’s report underpinned by the conclusion that the Freedom of Information (Scotland) Act 2002 (FoISA) requires reform to enable the public, NGOs, journalists and bloggers to find out how they are being governed and to effectively hold politicians to account.
- Monitoring and Evaluating the Parliament – In response to a CFoIS FoI request asking for a breakdown of how often individual committees have met in private since 1999, we were advised that comparative statistical information is not gathered. Instead we were directed to visit the National Library of Scotland for statistics before 2009 and examine online reports after that. Therefore, CFoIS agrees with the Commission’s recommendation that ‘More effective monitoring and evaluation of the work of the Parliament’ is essential and we are perplexed that this culture and practice was allowed to develop.
- Need for Post Legislative Scrutiny – FoISA was passed in 2002 but its effectiveness has been diminished because it increasingly covers fewer bodies that are delivering public services or services of a public nature eg those which are delivered by the Third Sector in health and social care. Promises made in 2002, for example that housing associations would be covered, have still not been honoured with the latest prediction being April 2018 but the absence of a firm announcement is causing suspicion about yet further delays. Therefore, CFoIS welcomes the Commission’s recommendation for ‘An enhanced legislative scrutiny process with mandatory pre- and post-legislative scrutiny’ so that legislation is regularly reviewed for impact and effectiveness.
- Holding Government to account – The Scottish Government must report on its use of Section 5 powers of FoISA on or before Tuesday 31st October 2017  and that report will include an indication of any intention to exercise the power to designate bodies for coverage in the future. The Scottish Government’s report must result in concrete, progressive action. Additionally, the Scottish Parliament must have its own ideas about what categories or named bodies it believes should be added to FoISA eg RSLs and their 148 subsidiaries, all arms-length external organisations (ALEOs) , professional associations undertaking a regulatory function eg the Law Society of Scotland, a strategic function such as CoSLA, and many private companies delivering services of a public nature eg health and social care and road maintenance. Therefore CFoIS welcomes the Commission’s recommendation for ‘More flexibility and spontaneity in the business of the chamber, improving opportunities for participation in debates and increasing ministerial accountability.’
- Stronger information access rights for MSPs – CFoIS believes that MSPs need to have access to better information to make informed decisions. For example, currently MSPs are not permitted to see the Scottish Parliament’s full legal advice on the impact of Bills on the European Convention on Human Rights (ECHR) yet MSPs can only pass Bills which are ECHR compliant. Currently they receive only an edited version that confirms the Bill is compliant despite the subsequent parliamentary process often involving submissions from civil society organisations claiming ECHR issues have not been addressed. CFoIS knows from FoI requests that there is no routine system to update and brief MSPs on cases decided at the European Court of Human Rights that may impact on the business of the Scottish Parliament. This gap in information and the consequent silencing of debate is unhelpful. Therefore, CFoIS welcomes the Commission’s proposal for ‘An enhanced role for individual MSPs to influence, and contribute to, parliamentary business and encouraged to be parliamentarians first.’ However, for this recommendation to be effective requires increased information rights for MSPs.
- Shortage of money stifles effective engagement and creates conflicts of interest – At a recent Scottish Public Information Forum meeting it was reported that there is some evidence that civil society organisations who receive the public pound through contracts or grant funding are discouraged from making FoI requests because ‘don’t bite the hand that feeds you’. CFoIS acknowledges that it is very important for the Parliament to engage with people however the Third Sector needs to be funded to be independent and to exercise their independent voice without fear of retribution from the public services that fund them. For the Commission’s recommendations to be realised requires a variety of reforms for Scotland to ‘become a leader in public engagement, experimenting with new ways to gather views and evidence and opening more opportunities for people to become involved, where they want and how they want’, as well as the ‘creation of a Committee Engagement Unit.’
Carole Ewart, Convener of the Campaign for Freedom of Information, said:
“The Commission makes important recommendations that need to be delivered soon. Fundamental to the reform are the updating of our information access rights so that MSPs, journalists, civil society organisation and the public in general can hold the Parliament to account. At a time when fake news has been exposed as skewing decisions and misleading people, there has never been a greater need for the publication of information so that better decisions are made about public spending, delivery of public services and crafting policy. Whether you are an MSP, a charity or a member of the public, you need to be able to access and rely on good quality information so that you can do your job, serve your community and participate in public affairs.”
 CFoIS submitted evidence to the Commission which is acknowledged on page 97 ref no: CPR095. The Commissions’ report is available here.
 Required by the Freedom of Information (Amendment) Scotland Act 2013 available at http://www.legislation.gov.uk/asp/2013/2/2013-05-31
 The Scottish Charity Regulator reported there are 68 ALEOs that are also charities. Some ALEOs are already covered voluntarily such as Glasgow Life, or via legislation such as ‘Culture and Leisure Trusts’.
Carole Ewart, Convener CFoIS, firstname.lastname@example.org
The Campaign for Freedom of Information in Scotland (CFoIS) was established in 1984 to secure a legal right of access to information so that people could find out about how they are governed and how their services are delivered. We have been involved in all the major developments of the legislation at the Scottish level. CFoIS is independent of government and relies on donations and income generated through training. For more information on our work go to https://www.cfoi.org.uk/scotland/
The Campaign has joined ARTICLE 19 and the Access to Information Programme (Bulgaria) in a joint intervention in a European Court of Human Rights (ECtHR) case involving GCHQ. GCHQ, like other security bodies, is not covered by the UK FOI Act. Information which public authorities hold about, or which has been supplied by, security bodies is protected by an absolute exemption.
The case has been brought by Privacy International and follows a recent decision of the Grand Chamber of the ECtHR that Article 10 of the European Convention on Human Rights provides a right to information from public authorities. The right applies to information requested by someone acting in a ‘social watchdog’ role seeking to contribute to public debate on a matter of public interest. The joint intervention argues that the UK’s blanket ban on any FOI disclosure of any kind about the security services in all circumstances is disproportionate and so breaches Article 10. It includes an analysis by the Campaign of the position of security services under the FOI laws of 44 Council of Europe states (paragraphs 41-58).