Freedom of Information in Scotland - update

(Carole Ewart) #10

Dear All,

The Campaign for Freedom of Information in Scotland
(CFoIS) believes that the enforceable right to access information should follow the service rather than the body that delivers it. Therefore we believe that public services, and services of a public nature, which are delivered by the Third Sector and by the private sector should be covered by FoISA. I think it is important for me to state clearly the CFoIS policy position so that the network understands the variance in opinions. I know this is view is opposed by some but we are working collaboratively with a range of organisations to ensure our vision is delivered in Scotland.

Yes due to the sustained campaign of CFoIS, RSLs and their subsidiaries will soon be covered by FoISA - the Freedom of Information (Scotland) Act 2002.The date for implementation has been repeatedly delayed but I have received a letter from the Government today saying the Order should be effective by the end of 2019, which is 17 years later than first promised.

Best wishes

Carole Ewart

Convener CFoIS

(Bruce Ryan) #11

Der all

Would the revised Order cover community councils?

They are not statutory service-providers but some, principally in Orkney and Shetland, do. Also, if CCs take on any responsibilities under the Community Empowerment Act, then (following CFoIS’ argument), such matters should be FOISA-able.

Thanks all round


(Ruchir Shah) #12

Hi Carole
I agree that FOI should follow public services and functions of a public nature regardless of who is delivering it rather a public sector body per se. However, I don’t think FOISA was designed for that. I think FOISA was designed for specific public sector bodies in mind.

Consequently I’m not convinced that FOISA is fit to be applied to all delivering public services in its current form.

Please therefore convince me.

(Sarah Hutchison) #13

Hello Bruce

The order Ruchir refers to at the beginning of this topic is under section 5 of FOISA. Section 5 gives Ministers power to designate new bodies as Scottish public authorities for FOI. Following a consultation, the Scottish Government announced its intention to lay an order before the Scottish Parliament to extend coverage of FOISA to registered social landlords.

So the short answer to your question is that this order will not extend coverage of FOISA to community councils.

I recall that there was some discussion of community councils and FOI in the early days of our legislation, but unfortunately I can’t find the reference to it. From memory, the discussion concerned why parish councils as subject to UK FOI law, but community councils are not subject to Scottish FOI law - I think the answer was something to do with different functions.

However, anyone can, at any time, make suggestions to the Scottish Government that it consider additional bodies for extension of FOISA. I’m sure it would be helpful to set out your reasons why you think the bodies should be considered - as you have done here. Factors such as changes in statutory responsibilities can suggest a fresh look.

Best wishes


(Bruce Ryan) #14

Many thanks Sarah

I will ponder…


(Ruchir Shah) #15

Another update from Scotparl. So we’re on…

"Dear Ruchir

I wanted to let you know that following the evidence session this morning with the Scottish Information Commissioner, the Committee has formally agreed to undertake post-legislative scrutiny of FOISA and a call for evidence will be issued in due course.

Kind regards


(Matthew Rice) #16

Thanks Ruchir - good way to start the new year. I see 2 options off the back of this:

1- Organise an open meeting to discuss collaboration

2- Set up a collaborative document to collate evidence in line with the call from the Committee.

Would others on the Network be interested in meeting before the end of January and beginning to collaborate?



(Alex Stobart) #17

Hello Matt

Happy New Year

Yes, happy to join a collaborative document and when are you planning time of a meeting ?


(Matthew Rice) #18

Hi Alex,

Great to hear. Will circulate once we see the call for evidence. No firm timing for planning meeting yet was looking to see if there was interest on the Forum first before setting up a Doodle, will circulate a set of dates this week to guage interest.


(Sarah Hutchison) #19

Hello All
It’s great news that the forum is considering submitting evidence. I’d especially welcome something on the publication duty - how to ensure authorities publish the information that should be accessible without having to make a request for it. I know there’s a lot of expertise on this subject in the forum.
If you have any questions about the current FOI law, there’s a lot of information on our website you might find useful, particularly our briefings and guidance and Your Rights pages. You are also welcome to contact us - we provide an enquiries service during business hours.
Best wishes

(Carole Ewart) #20

Dear All,

There is an opportunity to reform FoISA, including increasing the number and type of bodies designated for coverage such as community councils. On 10th January 2019, the Public Audit and Post Legislative Scrutiny Committee agreed to scrutinise FoISA and we now wait for the terms of reference and the call for evidence.

Best wishes


(Ruchir Shah) #21

Hi all - see launch of call for evidence from Scottish Parliament into FOI:

Dear Ruchir,

I am contacting you in your capacity as a member of the Open Government Network to bring to your attention that the Public Audit and Post-Legislative Scrutiny Committee has today launched a call for written views to inform its post-legislative scrutiny of the Freedom of Information Act (Scotland) 2002. The Committee is keen to examine how FOI works in practice and whether the Act can be modernised or otherwise improved to increase transparency in our public services.

The Call for Views can be accessed here:

I’d be grateful if you would circulate this link to other members of the Open Government Network. Please do not hesitate to contact me if you have any queries.

Kind regards,


Alan Hunter
Assistant Clerk
The Scottish Parliament

(Ruchir Shah) #22

Hi all - just a reminder:

The Public Audit and Post-legislative Scrutiny Committee has issued a call for written evidence on the Freedom of Information (Scotland) Act 2002 with a closing date of Friday 10 May 2019.

The call for written evidence can be accessed here:

  1. In your view, what effects has the Freedom of Information (Scotland) Act 2002 (FOISA) had, both positive and negative?
  2. Have the policy intentions of FOISA been met and are they being delivered? If not, please give reasons for your response.
  3. Are there any issues in relation to the implementation of and practice in relation to FOISA? If so, how should they be addressed?
  4. Could the legislation be strengthened or otherwise improved in any way? Please specify why and in what way.
  5. Are there any other issues you would like to raise in connection with the operation of FOISA?
(Ruchir Shah) #23

Hi All,

I’ve set up a collaborative analysis page here:

I really need your help with this - I’m struggling to do this myself and will not be submitting by May 10th without your input. Please reply here or add directly to the wiki page above.
Thanks in advance, Ruchir.

(Carole Ewart) #24

Dear All,

Yes we are working on our response and will be submitted by the end of this week. CFoIS will draw on its 19 years of working on this issue and will be calling for FoISA to be extended to those delivering public services and services of a public nature. We believe the right should follow the public money. Of course that will mean that some voluntary organisations will be affected such as SCVO.

FYI, there is a very useful SPICe briefing on FoI Acts

Best wishes,


Carole Ewart

Convener, Campaign for Freedom of Information in

Tel: 0141 222 5975

Mob: 07768 794689

(Ruchir Shah) #25

Thanks Carole,

Are you okay to share with us your draft response, so we can pick up useful info from it to restate it in our own responses.

(Matthew Rice) #26

Thanks for putting this together Ruchir.

I’ve submitted a short analysis on the scope of coverage FOISA based on the definition and list of “public authorities”, the need to consider how the levers for allowing other bodies to fall under FOISA (ministerial order) have been used, and reflecting on who is involved in delivering public services.

The proposal is that the different types of actors that local and central government use to deliver public services (ALEOs, private third parties, community planning partnerships, etc.) may need to be considered in the post-legislative scrutiny process if FOISA is to meet its purpose.

(Ruchir Shah) #27

Hi All.
I really appreciate the input above.
However, I do not have enough here to submit something myself by Friday.

I’ve therefore tried to bring some of the existing openly shared info over the past year at

I hope it’s been useful and am glad I’ve been able to work with all of you in getting the FOISA review on the cards, to this stage.

If the ScotParl committee wants to explore impact on third sector, we will of course review that in more detail. But for now, I’m not planning to submit an SCVO response to the committee.

Happy to discuss if required.

(Sarah Hutchison) #28

A final plug for information on our website you might find useful for any submissions.

The full range of our briefings on the key concepts in FOI law, issues and exemptions: here
Commissioner’s role and functions: here
Appeal rights: here
Fees and charges for information: here
Which bodies are subject to FOI: here
Timescales for responses:here

Feel free to beg steal and borrow!
If you’re stuck with any detail about how FOI works, you are welcome to contact us

(Sarah Hutchison) #29

Me again!

The Commissioner’s submitted his views on the post-legislative scrutiny - you can read them here [it’s the first item under the heading 2019].

The main suggestions:

Increased emphasis on regulatory intervention into authority practice: The OGN has had concerns about the practice of individual authorities. So I think you’ll be interested in the suggestion to strengthen the Commissioner’s powers to intervene when an authority’s FOI performance is a concern. We suggest interventions should have similar strong enforcement powers as appeals.

Bringing the FOI publication duty up to date: Transparency initiatives are driven by lots of aims (economic benefit in the information, anti-corruption, etc). Only FOISA requires authorities to publish information in which there’s a public interest (i.e. what is of serious concern and benefit to the public). The idea is to move to a statutory Code of Practice which sets out the outcomes and minimum authorities have to achieve. The OGN has loads of collective experience about what information should be published, where it should be published and the importance of consistency, making information searchable, etc.

Remove the ministerial veto in FOISA

Allow the Commissioner to investigate FOI appeals about the Lord Advocate, Crown Office and Procurator Fiscal Service and the Scottish Information Commissioner (yes, there’s no right to appeal information requests made to us).

Prevent reliance on confidentiality clauses in contracts where public services are provided on an authority’s behalf

Happy reading!

Best wishes