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Minutes of SPIF Meeting Friday 12th May 2017

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.

Campaign Calls for Speedy Reform at the Scottish Parliament

The Campaign for Freedom of Information in Scotland (CFoIS) today welcomed the report of the Scottish Commission for Parliamentary Reform [1] 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 [2] 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) [3], 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.”

[1] CFoIS submitted evidence to the Commission which is acknowledged on page 97 ref no: CPR095. The Commissions’ report is available here.
[2] Required by the Freedom of Information (Amendment) Scotland Act 2013 available at http://www.legislation.gov.uk/asp/2013/2/2013-05-31
[3] 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’.

Further information:
Carole Ewart, Convener CFoIS, 07768 794 689 or cfoiscot@gmail.com

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 both at UK and Scottish levels. 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/

Challenge to security bodies’ exclusion from FOI

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).

Scottish Public Information Forum meeting 12 May 2017

The Campaign for Freedom of Information in Scotland (CFoIS) is convening a ‘Scottish Public Information Forum’ (SPIF) meeting on Friday 12th May in Edinburgh. The meeting is supported by UNISON Scotland. The purpose is to understand the ‘access to information’ right as it operates now in Scotland, hear the views of the providers of information as well as serve as an opportunity to hear the practical experiences of those who ask for information.

Further details in the attached flyer.

Whistleblowers and journalists face prison for revealing information that could be obtained under FOI






New proposals by the Law Commission to reform the 1989 Official Secrets Act (OSA) could lead to the imprisonment of civil servants and journalists for disclosing information that would be available to anyone asking for it under the Freedom of Information Act, say the Campaign for Freedom of Information (CFOI) and ARTICLE 19.

The Law Commission is proposing to make it easier to secure convictions under the 1989 OSA by weakening the test for proving an offence. But the proposed weaker test would catch information that would have to be disclosed under the Freedom of Information (FOI) Act, say the CFOI and ARTICLE 19.

In a joint response to the Law Commission proposals, ARTICLE 19 and the CFOI are concerned that:

  • Whistleblowers and journalists could be convicted for revealing information about defence, international relations or law enforcement that is unlikely to cause harm
  • Leaking information that anyone could obtain by making an FOI request could be an offence
  • It would not be a defence to show that the information had already lawfully been made public under the FOI Act or otherwise – unless the information had also been ‘widely disseminated’
  • Someone revealing danger to the public, abuse of power or serious misconduct would not be able to argue that they acted in the public interest
  • Maximum prison sentences on conviction, currently 2 years, would be increased.

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Government FOI forum recalled by Campaign

A Forum set up by the Scottish Government, but which hasn’t met for over six years is to be reconvened in Edinburgh this Friday by the Campaign for Freedom of Information in Scotland (CFoIS) it was announced today. The recall meeting is supported by UNISONScotland, and features contributions from the Acting Scottish Information Commissioner, Margaret Keyse, and Alison Mackinnon, Information manager from SEPA who will discuss experiences of the Freedom of Information (Scotland) Act 2002 (FoISA)

Carole Ewart, Convener of CFoIS said“The CFoIS wants to recall the SPIF to discuss threats and developments to Scotland’s FOI landscape. We’ve managed to recreate the unique character of the SPIF, bringing together regulators, providers and requesters and acting as a sounding board, sharing experiences, good practice and discussing progress.”

The Scottish Public Information Forum (SPIF), which has gone through several incarnations since originally formed to discuss the implementation of FoISA, was meant to ‘enable the long-term effectiveness of FoISA and the Environmental Information (Scotland) Regulations 2004. It’s papers are still listed on the Scottish Government website, although the home page for the forum has been deleted. Intended to continue as a ‘virtual’ forum’, it is still listed in the Scottish Government’s Six FoI Principles. It last met in 2010.

Dave Watson, UNISON’s Scottish Head of Policy and Public Affairs said: “As a major user of FoI to ensure we have the information we need to defend services and the members who provide them, and as a union representing many of the workers who provide that information, means we are uniquely qualified to speak up about our concerns. Public services are increasingly being run by the private sector, voluntary bodies and arms-length companies most of whom are not covered by the Act.”

The Forum will also discuss the increasing focus on proactive publication of information – does this pose an advance or a threat to information rights? European Court of Human Rights decisions may also impact on people’s right to information, and recent cases will be discussed.

Further information:

Registration for the SPIF meeting on Friday 12th May is free, via Eventbrite. The agenda and further organisational details are listed there too.

Inquiry needed to check if Parliament’s ‘openness’ principle still applies

The Campaign for Freedom of Information in Scotland (CFoIS) has called for an inquiry into the delivery of information rights in Scotland.

In a submission to the Scottish Parliament’s Independent Commission on Parliamentary Reform,
CFoIS says the inquiry should focus on delivering openness across the public services, as well as the practical delivery of the Freedom of Information (Scotland) Act 2002 (FoISA) and the Environmental Information (Scotland) Regulations 2004. Evidence should be sought from those with experience of trying to access information to make a realistic assessment of what changes are needed in culture, law and practice.

Carole Ewart, Convener of the CFoIS said:
“The Scottish Parliament passed freedom of information legislation 15 years ago, so it is timely to have a review of whether the right remains robust or has been diminished. Case decisions and anecdotal evidence suggest there are problems with levels of organisational openness, failures to respond within deadlines, and the increasing number of organisations that deliver public services but which operate outside the scrutiny afforded by FoISA.”

CFoIS recognises that the drive for openness in the Parliament and across the 10,000 organisations that it funds and scrutinises, comes from founding principles, especially that the Parliament should be ‘open, accessible and accountable’. As access to information is a human right, we need an audit of whether our legislation is fit for purpose. This should include, recent jurisprudence of the European Court of Human Rights, interpreting the International Covenant on Civil and Political Rights to fit Scotland and learning from the work of the UN Special Rapporteur on Access to Information.

Given the popularity of enforceable access to information rights with the public in Scotland, it is right that the Scottish Parliament listens and ensures that the right remains robust.

The CFoIS is currently carrying out its own research into access to information and further findings will be made to the Independent Commission and the public as they become available.

For further information, please contact:
Chris Bartter 07715 583 729 or Carole Ewart.

Using the FOI Act training course

Photo by Dương Trần Quốc

Photo by Dương Trần Quốc

When: Monday 22nd May 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.
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Response to consultation on extending FOISA to registered social landlords

Campaign for Freedom of Information in Scotland response to the Scottish Government consultation ‘Extending Coverage of the Freedom of Information (Scotland) Act 2002 to Registered Social Landlords’.

Proposal would lead to indiscriminate secrecy about NHS safety investigations

A new legal block on the disclosure of information about NHS safety investigations will fuel public suspicion of cover-ups and protect poor quality inquiries from scrutiny, says the Campaign for Freedom of Information.

The Department of Health has proposed new arrangements for investigating serious hospital safety incidents. The aim is to encourage staff to speak frankly to investigators about mistakes they may have made without fear of being victimised. As a result, only the investigation report could be published. A new legal prohibition on disclosure would prevent the actual evidence obtained by investigators from being released under the Freedom of Information (FOI) Act. A hospital would not be able to release it voluntarily even if it wanted to and Parliament would not be able to obtain it either.
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