Proposed FOI reform plans “not currently workable”, says Committee

In its Stage 1 report on the Freedom of Information Reform (Scotland) Bill, the Committee has found that while there is a clear need to update FOI law, elements of the Bill have not been sufficiently considered or laid out.

Introduced by Katy Clark MSP, the Bill aims to update the original 2002 Act by introducing a presumption in favour of disclosure and establishing a new duty for public authorities to publish information proactively. Other proposals include creating a new mechanism to bring more bodies under FOI rules and removing the First Minister’s power to ‘veto’ certain decision of the Scottish Information Commissioner.

The Committee is not persuaded that the Bill in its current form would deliver the intended change. It has particular concerns about how workable the proposals are and the financial and resource implications for public bodies.

Instead, the Committee concludes that the Scottish Government should be taking a lead in bringing forward its own proposals for freedom of information reform.

Speaking as the report was published, Committee Convener Martin Whitfield MSP said: 

“Freedom of information is a fundamental part of how our public services in Scotland are delivered. The work done by Katy Clark MSP establishes a clear need to update the law that underpins it. 

“However, our Committee is not convinced that this Bill is the right approach in its current form.

“The Scottish Government should be taking action to develop an updated and forward-looking FOI regime for Scotland. If not, a committee bill may be the most appropriate legislative means to deliver this complex and important reform.”

Elements of the Bill highlighted in the Committee’s report include:

• Presumption in favour of disclosure: The report makes it clear that the Committee doesn’t think it necessary to legislate for making openness the default in releasing public information. It suggested that efforts to improve culture and practice within organisations is a preferable approach.
• Proactive publication duty: the Committee is not persuaded that proposals to replace the current scheme with a rule that requires public bodies to publish information more broadly and pro-actively would work in practice.
• Designation of public bodies: The Committee is unconvinced that the proposal for the Parliament to make bodies subject to FOI rules is workable.
• There remains significant uncertainty about the financial and resource implications for public bodies.