Why ‘changes in technology and society’ prompted a review of Scottish FOI laws
The Scottish Information Commissioner discusses the impact to date of freedom of information legislation and how he wants the law to operate in the future
Daren Fitzhenry has been Scotland’s Information Commissioner for a little over two years, a time during which freedom of information (FoI) has been an unusually hot topic.
Since his appointment in October 2017, the question of whether the Freedom of Information (Scotland) Act of 2002 (FOISA) works as well as it should has been the subject of debate, both in parliament and outwith it.
Journalists have raised concerns about the way the Scottish Government interprets and implements the law when responding to information requests. Meanwhile, local authorities have warned that an ever-increasing number of requests is becoming a strain on their resources.
As a result, the law is currently being reviewed, both through an ongoing committee process and through a Scottish Government consultation on expanding its coverage, which closed recently.
Fitzhenry’s role as Information Commissioner involves enforcing FOISA by providing an appeal process for requesters, and by monitoring and assessing how well public authorities meet their statutory requirements.
But the job also involves promoting FOISA; making the public aware of their right to access information and proselytising for a more transparent and open government – something he was doing at and FoI summit hosted this earlier this month by PublicTechnology sister publication Holyrood.
Sitting for an exclusive interview with Holyrood, Fitzhenry discussed the benefits and the shortcomings of freedom of information in Scotland.
“If you think back to where we were 15 years ago, essentially with regard to information, you got to take what you were given and be grateful for it,” Fitzhenry says, recalling what it was like before the act came into force in 2005.
[Removing the first minister’s power of veto] is something that I think would be an easy change, and the message sent out by removing it would be a very positive one
“There was no right to ask for information and certainly no right to be given information. If the authority decided it didn't want to give you it – that was it.”
Today the reality is quite different.
According to Fitzhenry’s most recent report, almost 84,000 requests for information were made to public authorities just last year. These were made by journalists and politicians but also by curious members of the public.
“It's difficult to state quite how much a sea change it was. But it's a huge sea change in people's rights and their ability to seek information from the authorities,” he says.
Even more profound than the impact of the act, though, has been the massive cultural change around information and technology that has come along with social media, search engines and smartphones, which makes a review of FOISA necessary.
“(Since) the act was drafted you've had changes in technology and you've had changes in society,” Fitzhenry says. “You've now got a public expectation that they should be able to get information on whatever they want at the tap of a few buttons, which I don't think you had back in 2002.”
Fitzhenry says his own appreciation for the benefits of freedom of information go back to his previous job, heading up the legal advisory team for the Royal Air Force’s legal branch.
“I'd seen it from its inception to its practice,” Fitzhenry says of the UK’s Freedom of Information Act 2000 (FOI), which is what applies to the armed forces.
In his view, the newly introduced act had actually improved decision-making.
“If people know that decisions can be looked at and pored over, I think it hones people's minds,” Fitzhenry says. “They would focus on making appropriate decisions on the basis of appropriate evidence.”
As he neared the end of his time with the RAF, he says, this positive experience with FOI lead him to apply for the six-year role as Information Commissioner.
“Coming out, I knew I wanted to have a public service role. That's sort of in my nature. I enjoy public service,” he says. “It appealed to my sense of actually going out and doing something positive and waking up and thinking, yeah, we're making a difference here.'"
Secrets and FOIs
The commissioner’s role is independent of government but Fitzhenry is careful not to weigh in too dramatically in topical controversies relating to FoI.
Stories in recent weeks centring on the Scottish first minister’s use of non-government email servers and her office’s practice of destroying handwritten instructions have sparked concern, with opposition parties claiming that these pose a risk to proper government scrutiny.
Scottish Lib Dem leader Willie Rennie reported the Scottish Government to Fitzhenry’s office in late November after his FOI requests and parliamentary questions on Police Scotland mental health staff were refused multiple times. Rennie accused the government of “secrecy”.
Following the private email revelations, Fitzhenry wrote to permanent secretary Leslie Evans seeking assurances that it was understood that government business would still be liable to FOISA no matter where information was stored. He also warned of the risk of “reputational harm” if it appears that scrutiny was being dodged.
Some campaigners and journalists would prefer Fitzhenry was more impassioned, sweeping and unequivocal in his public statements. But, perhaps in part because of his background in law, he is very careful with his words.
Fitzhenry believes acknowledging the successes of FOISA should make the starting point of any criticism.
“I think there are many areas where the act is actually quite sound as it currently stands,” he says.
Year in which FOISA came into effect
Number of FOI requests made to public authorities across Scotland last year
20 working days
Timeframe within which public authorities are expected to respond to FOI requests
Current success rate in responding to requests on time
Still, over the course of the Public Audit and Post-Legislative Scrutiny Committee’s review of FOISA, Fitzhenry has made suggestions for improvement of both the law and public authorities’ practice relating to it.
Some areas of the law are simply out of date, he says.
“The publication scheme duty. That's the key freedom of information duty that's probably aged least well.”
FOISA requires authorities to publish information as well as respond to requests. Although every council in Scotland has adopted the commissioner’s own model publication scheme – setting out what type of information should be proactively published – it is still the case that most authorities could publish a lot more without needing to be asked.
Fitzhenry thinks this aspect of the act could be simplified to place greater onus on the proactive publication of information.
“Better to have a system that focuses on bodies pushing out as much information as they can,” he says. “That creates something that more easily keeps up with technological and societal changes. It's something that can respond to new concerns that are raised in relation to practice. And if it's an enforceable code of practice then that also helps because it enables us as regulators to help push that agenda towards openness.”
Fitzhenry also argues it could make life easier for public authorities.
“If you're publishing more then you're less likely to get as many requests for information because, if people have found what they're looking for online, they’re less likely to have to ask,” he says.
During the scrutiny process, some representatives from local authorities have said that the increasing number of requests is becoming a strain and argued in favour of lowering the cost threshold and extending the 20-working-day response duty.
Fitzhenry disagrees with this reasoning.
“Is the answer to that simply to say, Oh, well, it's all too difficult, let's give them longer? I don't suggest that it is,” he says.
Besides, his report shows that public authorities are succeeding in meeting this deadline around 85% of the time.
As well as publishing more up front, he encourages authorities to see FoI as a mutually beneficial process.
“If an FoI request is showing that the authority is working on the basis of incorrect data, is it not better that that is seen to be the case? The authority can then say: ‘right, okay, we've made a mistake here. Let's work on the basis of the correct data. Let's improve things.’”
“It's not just a benefit to the users. It's also a benefit to the authorities,” he says.
In order to help along the process, Fitzhenry recommends his office’s enforcement powers in relation to interventions be extended.
“It would be good to have the ability to enforce good practice – or at least the directive elements of good practice, so that we're not purely relying on breaches of the act,” he says. “Ultimately, at the moment, if an authority is breaching good practice but it's not breaching the act, I'm very limited in what I can do.”
He adds: “While freedom of information, to be honest, is largely carrot, it's also necessary to have a bit of stick.”
One thing Fitzhenry thinks should go, which he dubbed “an anachronism”, is the first minister’s power of veto over FOISA.
While it has never been used, Fitzhenry thinks having it there isn’t quite in the “spirit of openness”.
“This is something which I think has had its day,” he says. “This is a provision essentially – if one wants to call it a ‘get out of jail free card’ – this was an ability in an untested regime when nobody was quite sure of what freedom of information would lead to.”
Getting rid of it would be “something that I think would be an easy change and the message sent out by removing it would be a very positive one,” Fitzhenry suggests.
Time for review
The process of reviewing FOISA was triggered after a controversy in 2017 involving the Scottish Government’s practice of involving special advisers in the process, allegedly to check for politically damaging details before deciding to release information.
After these concerns were raised by journalists, Fitzhenry launched an intervention. Does he think this behaviour is wrong? He is typically measured in his response.
“It's not wrong in and of itself to involve them in the process. And we've never stated that it is,” he says.
“What we have done in the report on the intervention is to focus on the importance of transparency and seeing – how are they involved? What are they saying and what's their advice? And is the decision changed as a result? So (it’s about) being transparent as to, well, what is their actual involvement? And we recommended that an improvement in records management of keeping these notes of what those involvements were and for the advice from the special advisors was.”
An update on the intervention into the Scottish Government is expected in 2020.
“So hopefully when we go back next summer and we look at these, we will hopefully be able to look up the files and see, well, ah, they have been involved - but this is what they said,” Fitzhenry says.
[Since] the act was drafted, you've had changes in technology and you've had changes in society. You've now got a public expectation that they should be able to get information on whatever they want at the tap of a few buttons.
What about the more recent controversies about the first minister’s office and handwritten notes?
“Freedom of information deals with information that the authority has at the time that the request is made,” he says. “So, if the authority holds the information – that's great. If it doesn't hold the information, my powers are limited. So, in terms of what records should be held or how they should be held - that's more an information management issue, which more appropriately lives with the Keeper of the Records rather than fair and square within my bailiwick.
“Freedom of information is about information. It's not necessarily concerned about the format in which that information is held.”
Looking ahead, what does Fitzhenry hope will come from the post-legislative scrutiny?
“I really hope that we will at the end of the process, see the committee's view on key aspects of things that they think should be done,” he says. “Hopefully they'll take all that, distill it, and come out with something that brings us that little step closer to an actual bill in due course down the line, ultimately leading to amendment to the act.”
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