Public Audit and Post-legislative Scrutiny Committee

Meeting date: Thursday, December 5, 2019

Official Report 671KB pdf

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Freedom of Information (Scotland) Act 2002: Post-legislative Scrutiny

Item 3 is our post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002. I welcome our witnesses. Daren Fitzhenry is the Scottish Information Commissioner, and Lorraine Currie is the freedom of information officer in charge of policy and information at the office of the Scottish Information Commissioner.

I understand that the commissioner has an opening statement.

I thank the committee for the opportunity to provide evidence in its post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002, or FOISA, as we tend to call it. I am grateful to the committee for looking at FOISA—not because it is broken, but because it could be better and because it is important to keep it alive and up to date in order to meet the challenges ahead. It is important to put the act in context and to highlight aspects of the current system that work well, which will allow us to focus on where improvements can be made.

Our starting point is that the freedom of information regime is generally working well. There are very high levels of public awareness—up to 91 per cent. When we delve deeper into knowledge of what the right means to people in real life, 71 per cent of people in Scotland understand that FOI gives them a right to ask for information from public bodies, compared with 54 per cent awareness throughout the United Kingdom as a whole.

Last year, more than 83,000 requests for information were made in Scotland, of which 75 per cent resulted in full or partial disclosure of information. Some three quarters of disclosures were full disclosures. Over the past three years, the rate of responses being made on time has been around 85 per cent consistently across authorities. That is obviously something that we want to improve on, but the rate is still relatively high, despite the increasing volume of requests.

Most of the time, when people exercise their right, they get the information that they were looking for first time and on time. Request activity, however, is only the tip of the iceberg, because freedom of information regime users can, and do, access information that has been proactively published in accordance with FOISA’s proactive publication duty.

Preliminary findings from the University of Dundee’s “Uncovering the Environment: The Use of Public Access to Environmental Information” project show what we expected to find: namely, that most people who look for information first go online and search for it themselves.

I hope that I will be able to say more about proactive publication later in the evidence session, but for present purposes my point is that we have a system that the public are aware of, that is regularly and increasingly used, that provides people with information to enable them to participate meaningfully in our processes, and which supports accountability of public bodies. It can also help authorities to improve their services and to work with the communities that they serve.

However, as I said at the start, there is room for improvement. I have previously set out in my written and oral evidence to the committee the ways in which I think the freedom of information regime could be strengthened. The committee has obviously had many other respondents who have provided input on that, both on paper and orally. I am delighted to see so much input.

Some of those inputs are of concern, not just for me, or nationally, but in the international context. If we look at how the system is viewed internationally, some of the proposed changes would have the effect of reducing the right to information. I am very lucky in that it has been suggested that Scotland might, for the first time, be given a right to information assessment—which would make us the first subnational regime to be put in that position. I hope to enter discussions on that.

As the committee will know from reading my submission, the top three opportunities are modernisation of the publication scheme duty, strengthening of the intervention powers, and provision of enforcement powers for breaches of the code. I look forward to dealing with those and any other matters that the committee would like me to deal with.

Thank you very much. That was extremely helpful.

I will open the questioning. The committee has heard from a few different sources that hurdles are put in place right at the start of the request process that make it harder for people to ask for information. Are you concerned that the process to make a request is more complicated than it needs to be?

The process for making a request is relatively straightforward. All that is required is something in writing or something that is capable of being put in permanent form. The individual needs to provide their name and address for correspondence—it can be an email address or a postal address—and to state what information they are looking for. The process is designed to be straightforward. The individual does not need to mention that the request is being made under FOISA, so they do not need to have knowledge of the act to make the process work. The request can be sent to anybody within a public authority, so the individual does not need to know that there is a special website for putting in the request. The process has been designed to enable people who are unaware of their rights to exercise them and to get a response to their request for information. That is relatively straightforward.

Problems can arise when individuals do not know which authority might hold the information in which they are interested. There can also be issues in relation to what the individual really wants to know: crafting an accurate request that will allow a person to get exactly the information that they are after can be difficult and takes a bit of thought. However, the process is designed to be available to anybody, regardless of whether they have access to the internet or of whether they know who within the authority should have the information.

You say that there is high awareness among the population of the right to get information, and that people who are thinking of making a request can look for the specific webpage and ask. However, from the evidence that we heard, it seems that that varies across local authorities. Does the process need to be more standardised?

That would be helpful, but it is important not to lose the general approach whereby someone who does not know the system or who does not have access to the internet can make a request through other routes. It is a good idea for an authority to have a single point of contact; it certainly helps an authority if that is available. However, a system in which that was the only way to access the freedom of information regime would not be appropriate, because we would then be more likely to exclude people who are least able to know about the process, including people who have least access to the internet. I do not want such people to be disenfranchised from their right.

Public service structures and delivery of services have changed quite a bit since FOISA came into force. Against that background, is the act still fit for purpose?

The act and the basic right to information are certainly fit for purpose, because we have the right to request information and the right to receive it. In relation to service delivery, whether the act is hitting all the bodies that it should hit, and whether the number of bodies that are subject to FOISA should be expanded, are different questions. Over time, there has been a reduction in access to information because of the way in which public services have been provided, which Colin Beattie mentioned. As more and more public services are contracted out or are provided by other types of arm’s-length bodies, it becomes more and more difficult to access information, because those bodies might not be subject to the act.

So you are saying, if I interpret it correctly, that the act as it stands is fit for purpose, but changes have perhaps resulted in other performers coming forward that are not caught by it.

That is exactly the point, and that is why it is useful to have powers such as the section 5 power for ministers to expand the provisions to other bodies. That power was not used for a long period but, thankfully, it was used in 2013 for the culture, sports and leisure trusts, in 2016 for privately run prisons, and this year for registered social landlords. There is also the new consultation on contracted-out services, in which we are very interested.

You have led us right to my next question, which is on the other bodies to be included. Health and social care partnerships, as opposed to national health service boards, represent a significant example. There is a certain amount of tension between those bodies in respect of who is subject to FOISA and who is not. Should health and social care partnerships be subject to the act?

Yes. In our consultation response, which was put on our website just yesterday, we say that that is an area that we certainly think ministers should look at in detail, with a view to such bodies being added to the list in FOISA for clear reasons relating to what happens if things go wrong, to the clear public interest and to use of public funds. There are many reasons why it would be appropriate to look at such bodies in detail.

To extrapolate, should private companies that contract for delivery of public services be included in the act?

There is some tension between having a system that includes as many bodies as possible, particularly those that receive substantial public funding, and having a system that is capable of being enforced in practice. My view is that, however coverage is extended, it is important for people to know who is covered—that we have a mechanism such that we know that a company is covered by the freedom of information regime so that requesters know and can ask, so that we know and can enforce, and so that the bodies know and can discharge their obligations under the act.

You are suggesting that there would have to be criteria against which to determine whether a body would come under the freedom of information provisions. How would you establish those criteria?

My predecessors set out a series of functional tests in a special report on whether the right bodies were covered. I generally agree with that approach.

One issue to consider is whether rights have been lost. In other words, is a private body now carrying out functions that were previously carried out by a public body? Issues relating to public finance and public interest in the body or its functions are relevant.

We are bound by section 5 of the act. At the end of the day, a public function has to be involved. Things are much more difficult with purely ancillary services. Should a body that gets public money for supplying paper clips—that is the great example—be subject to FOISA?

You are talking about public functions. Should not things be determined by the public pound, as well? Even charities and third sector bodies are heavily subsidised by the Scottish Government to deliver services that are agreed between them. Is there an interest in applying the act in respect of following the public pound?

That is an interesting question. In a number of areas there are the public functions on the one hand and there is significant public finance on the other. I think that there is a distinction. If a body spends public money most of time, that will usually, but not always, be because it performs a public function.

In relation to supplying stationery, for example, a company will just need access to money. A public organisation will need to have its windows cleaned: we would expect the procurement information on that to be available, but there is not necessarily a strong case for making the people who do the window cleaning subject to the act.

I do not think that it is useful to follow the public pound to its end, but looking at where large sums of public money are expended is relevant in determining whether a body should be caught.

09:15  

The functions of bodies that we have been discussing, whether they are private companies, third sector organisations or whatever, and the amount of funding and so on that they receive will change from time to time. What kind of mechanism would you put in place to respond to such changes? Given how funding sometimes works, we might find that a body would drop out of fulfilling the criteria one year but would fulfil them again in another year. That is a tremendous amount of flexibility to put in place. How would you do that?

As you can see from our consultation response, we suggest greater focus on the function test. We have recognised that large amounts of money going in tends to be related to public functions. The contracts that we think should be looked at first are those for health and social care services, private finance initiative and public-private partnership contracts, hubcos and services that are provided under the hubco model, and transport services. You will note that big contracts are less likely to change often; they tend to last for longer and to be more stable in terms of their output—

If I may interrupt, I suggest that companies in that little group on which you have just focused are likely to say that there are commercial issues, so they are unable to give the information that has been requested.

Freedom of information is designed to allow for commercial aspects to be taken into account in determining whether information is to be produced in response to a request. There are exemptions that can be applied in such circumstances.

There might be a disproportionately high number of exemptions among that grouping.

I would not say that. Public authorities expend large sums of money, and they have contracts, too. There will be circumstances in which exemptions apply, but there will also be circumstances in which they do not.

In your written evidence, you propose a prohibition on relying on confidentiality clauses between public authorities and contractors that provide public services. Could you provide a bit more detail on that proposal? How has a similar provision in FOI legislation in Ireland worked in practice?

Confidentiality clauses are often inserted in contracts, and are thereafter used by organisations to say that they cannot provide information because they are subject to a duty of confidentiality. That is quite apart from consideration of commercial harm or assessment of the seriousness of that harm. That concerns the confidentiality exemption, rather than the serious harm exemption.

In practice, although we may consider issues of confidentiality and public interest in determining whether confidentiality exists and the right exists, that can be a block to providing information. If confidentiality is included in a contract, that makes it easier to exclude provision of information. By removing confidentiality clauses, we are essentially saying that if there is a commercial reason why information cannot be provided, the body should rely on the commercial exemption.

I do not have details with me about how the provisions in Ireland have worked in practice. I will look to see whether I have anything for you—I can certainly get information on that to the committee.

You can always get back to us in writing.

I would like to ask about one more aspect of this issue. It seems that, if freedom of information requirements are going to have the power to override commercial contracts—that is effectively what the situation would be, as the confidentiality clauses would be in the commercial contract—how would that work in practice legally? Can we do that? Do we have the powers to do that?

In my view, you certainly could do that. An act of Parliament could say that there should not be such clauses in future contracts and it could set out the limitations. For example, we already have unfair contract terms in legislation. In my view, it is open to the Parliament to do that.

What about private companies that are owned by the Government? Should they be subject to FOI?

If they are wholly owned by the Government or by any other public authority, they are already caught by the act, by virtue of section 6. There is a bit of a loophole in the act whereby companies that are jointly owned by the Scottish Government and another public authority are not caught. That could be remedied by one of the technical amendments that I suggested in my written evidence.

That is interesting. It means that Ferguson Marine, which is now wholly owned by the Scottish Government, would come into the ambit of FOI.

Yes.

But V&A Dundee, which is privately constituted but has more than 50 per cent public funding from a variety of sources, would not be caught by FOI.

I have not looked at that particular case but, from what you say, I would not expect it to be covered, and certainly not by section 6.

That is my understanding, too. You say that some of the legislation on the issue needs tidying up.

Yes, particularly in relation to bodies that are wholly public owned but through a mix of Government and other authority ownership. We see no reason why such bodies should not be caught by section 6.

Yes. that would follow the principle of following the public pound.

It would also follow the principle of including bodies that are wholly publicly owned and controlled.

I do not think that you mentioned education in your introduction. We heard from a member of the Scottish Youth Parliament about an Ipsos MORI poll that showed that only 25 per cent of young people are aware that they can use FOISA and that only 28 per cent are confident that they would receive a response if they made a request. You said that the system is not broken. You said that it could be better, but that it generally works well and that there is 71 per cent public awareness overall. However, among young people, the figure is only 25 per cent. What is being done to raise awareness of FOISA among young people and to deal with the lack of confidence that they seem to have in the system?

That is certainly a concerning statistic for us. Polling that we carried out earlier this year showed that, in the 16 to 34 age group, the level of awareness generally is about 53 per cent or in that ballpark. I can provide the specific figure for the committee, but it is substantially lower than the average of 71 per cent. In the older age groups, the figure increases beyond 71 per cent. There is definitely a difference based on age.

To start looking at that, we have engaged with the Scottish Youth Parliament. Lorraine Currie has been actively involved in that. She has spoken to the Youth Parliament to find out what its members think should be done to help increase awareness. In addition, we have produced an infographic to try to show the rights in a more accessible format rather than pages of explanations about how to make an application, put in an appeal or seek a review. The infographic plays with a little jingle in the background and sets out how to do those things.

We have also increased our Twitter visibility to try to engage with groups and individuals who we might not have engaged previously. The key point that Mr Bowman mentioned was education. There is certainly a role for improving education on many issues about how Scotland works in practice, including freedom of information.

I am engaged with the Open Government Partnership work and we have provided input in relation to commitment 4, which looks at scrutiny bodies generally and access to those. One of our points was about the importance of including education in that, and I also mentioned education when I met the Cabinet Secretary for Communities and Local Government recently.

We are trying to get a more structured entry into the education system, because that is where people will become aware of how FOI can be used in practice, but we are also looking at other practical ways of engaging across the board.

It seems counterintuitive that younger people are less aware of issues around FOI than older people. What you described initially sounds a bit passive—improving your website and putting a jingle in. Did you say that there have been moves to get out and do something in schools or places of higher education?

Perhaps it would be helpful for Lorraine Currie to tell you about the conversations that she had with the Youth Parliament.

We held a workshop at the national sitting of the Scottish Youth Parliament to inform its members of their rights and how to use them effectively, recognising the approaches that could be useful to the MSYPs and their constituents. We have produced a report on the back of that, based on the feedback that we got from MSYPs and some of the ideas that came up—for example producing new resources.

We are now looking at which of the ideas we can take forward and which would have the most impact in targeting that group of people, because of the data that you mentioned, which shows that there is a definite difference between the younger and older populations. In the past, it has been difficult to take resources into schools or get education about FOI into the curriculum, but we are looking at options that we could pursue in relation to something to take into schools. We would very much like to do that.

What would stop you?

We are not sure about the way in, but we have been having conversations with the Information Commissioner’s Office, which is responsible for FOI in the rest of the United Kingdom, about ways in which we might be able to take that forward. We are actively looking at that because we recognise that we need to do something more for that group.

Do you know whether, in that group, Scotland has a different awareness percentage from the rest of the United Kingdom?

We have some data for the general population that shows that Scotland has higher awareness than the rest of the UK, but we do not have data about that particular group.

It sounds as though you are a step or two away from doing any more than having plans to do something.

We have plans.

The problem is that education is not within our remit. We do not want just to go to school X and school Y and then say that we have done something about it. We want to see how education about FOI can be added to the system in a structured way. That is why we are trying to piggy back on initiatives such as the Open Government Partnership as a way in, so that we are speaking as part of a bigger collective voice and there is more chance of it happening. It is not yet being done, but we are trying to achieve it.

That sounds wholly sensible.

I have a final point. Do you have a budget, if you wanted to advertise something? Where would the money be?

Publicity is one of the areas in our current budget. Another benefit of trying to get in through other organisations is that we can have impact as part of a bigger picture for less output. That is about trying to make efficient use of our resources.

But you do not have the money to run something like a television campaign.

No; for that we would have to seek more from the Parliament.

That would be an extremely popular request, would it not?

I will ask about responding to requests. The committee has looked at the 20-working-days response time and, specifically, the tension between what is provided for in legislation and how that is interpreted. We have heard that 20 days can put the pressure on, but there is a counter view that whatever limit is put on would become the target—the norm, if you like. Of the appeals that you get, can you say how many are because the 20-day deadline was not met, and what the key causes of delay were?

09:30  

Yes. In 2018-19, the reason for 27 per cent of appeals was failure to respond. As such, a high number of appeals were because of delay.

And what were the causes of that delay?

The causes are varied. Sometimes, it is human error. Sometimes, the reason given is that the amount of information that an individual was looking for meant that the process took longer. Sometimes, it is due to issues of clearance; in other words, the decision making is higher up in the authority. Sometimes, it is due to workload pressures or the lack of availability of a key individual; for example, somebody may have gone off ill or been on holiday when the request came in. A number of reasons might be given for delay; however, the net effect, at the end of the day, is that it ends up creating more work for the authority, as well as not providing the individual with the information to which they are entitled.

Do you think that local authorities ever use the “seeking clarification” clock-stopper as a delaying tactic, and, if so, how do we prevent that?

As far as I am aware, it is not used often. I would certainly want to have a close look at any case where I thought that there was a suggestion that it had been deliberately used to delay the provision of information. The current construct whereby—in essence—you go straight back to point zero on the clock is not helpful. Some of the suggestions that were given to the committee in evidence around the clock being paused while clarification is being sought are perhaps more useful and might prevent that option from being perceived as an attractive way of delaying providing a response.

Is there another solution? For example, do you think that 20 days is long enough, and, if not, should we increase it, or extend the number of circumstances in which it could be paused?

I think that 20 days is long enough. As I mentioned in my opening remarks, despite the increasing number of requests, over the past three years, the rate of responses that have been made on time has been around 85 per cent consistently across authorities. As I said, although we would like it to be better than 85 per cent, that does not suggest that the system is keeling over because of an inability to meet the deadline. As such, I think that it is manageable.

In addition, the provision has to be viewed in context. We have other provisions, such as the excessive costs provision, whereby—currently—if it will cost more than £600 to provide information, it does not have to be provided. That provision works, and we have to look at the whole suite of provisions in deciding whether the 20-days deadline works. Obviously, with regard to the environmental information regulations, you can extend the deadline by another 20 working days if the issue is voluminous and complex; however, you have less of the voluminous part, because of the £600 maximum level in FOISA.

I will look at the whole picture in two seconds, if you do not mind—I will come back to that cap. Before I do, however, you mentioned the increase in the number of requests—I think that your annual report talked about an 8 per cent increase in requests last year. The committee has heard that that increase puts a lot of pressure on authorities and might make it challenging for them to comply with the various provisions. Is that increase sustainable? Given the resource pressures that arise, would anything other than budget increases, which the convener talked about, help an authority to comply? For example, would more standardisation or sharing of best practice be useful?

On the question of what would help authorities to comply, the problem in some cases relates partly to an authority’s own structure for dealing with freedom of information requests; its procedures can sometimes add to delays.

Once the requested information has not been provided within the timescale, there is an increased chance of an internal review, which will suck up resource, followed by an appeal to my office, which will suck up even more resource. In many ways, the process rests on the stitch-in-time concept. If an authority has a smooth-running ship and good procedures, that should help to mitigate the chances of additional unnecessary work occurring.

There is certainly a resource implication in responding to freedom of information requests—there is no doubt about that. However, if an authority views the need to respond not simply as something else that has to be done—another encumbrance or bit of governance—but as a service that it should provide to people, because it should be pushing the information out there, that can help it to balance the resources that are utilised and see the benefits that it can get out of the process. For example, if people are raising issues of waste in an authority, that is a good thing, because it lets the authority respond and push out that waste. The process need not be a net sucker-up of resource, if you like—there are benefits for the authorities as well.

With regard to the increasing number of requests, if it keeps on going up and does not eventually plateau, that is always going to be a concern. However, in some ways, the increase is a good thing because it shows that the system is well used and that people are actively interested. Nevertheless, we hope that the mechanism of proactive publication will help to ease demand a little. I go back to the concept of wanting to push out information, and the view that that should be one of an authority’s primary roles. Taking such a view increases the chance that authorities will push out information voluntarily, through proactive publication.

As I said earlier, people are more likely to look online for the information first; it is only if they do not find it online that they will seek it from the authority. If they are going to ask a question after finding the information online, it is likely to be more specific and, we would hope, more easily answered, requiring less resource.

We do not want the numbers to keep on going higher forever—there must be an end point—but the demand is currently manageable. Authorities have not all of a sudden reached a point at which they are imploding with regard to their response times. However, they have to start thinking about how they do the work more efficiently and share best practice with each other. There are a number of sector groups that can help in that respect. Codes of practice also keep good practice alive, and helping to spread that good practice is always a positive thing.

We have been bringing the RSLs into the freedom of information system—they came under the remit of FOISA on 11 November. The fact that they have their own federations and groups has allowed for a lot of standardisation of forms and processes, and a lot of discussion between the RSLs. That has been useful in taking them forward and allowing the sector to take a more consistent approach.

I will stick with the same theme. You mentioned the fees cap earlier. There is a limit of £600, at £15 an hour, which is 40 hours’ work. I have two questions. First, is there any data on how often the fees cap is used as an exemption? In any event, do you take a view on whether the cap requires to be reviewed? If so, what should it be set at? You mentioned the Environmental Information (Scotland) Regulations 2004. Should we be looking at full cost recovery, as applies under those regulations?

There is quite a lot in there. If you want me to go back and ask the questions again individually, I can do so.

First, we have statistics on how often the limit of 40 hours’ work at £600 is used every year. I do not think that we have those with us today, but I can certainly provide the committee with that information.

We know that a fee was charged for 0.08 per cent of all requests in 2018-19, but we would need to come back to you with the data on how often a complete refusal was issued.

Thank you—that would be very kind.

We know that the cap is used. There is a useful discussion to be had as to whether cost is the correct measure for that, or whether we should just go on how many hours it takes to provide the information. We currently have a cap in the form of the hourly rate and a limit of 40 hours in Scotland—in the rest of the UK, the limit is 20 hours. Where do we want to be on that? Perhaps moving away from cost will get rid of some unnecessary leaps. At the end of the day, we need to ask whether 40 hours is the right level of work.

Within the current practice, I think that the limit is working. It strikes a sensible balance between, on the one hand, wanting to get as much information out as possible and, on the other, recognising that there is a limit to what can be done with public finances. There are some systems in the world—in Canada, for example—where there are no limits at all, which can lead to requests for millions of pages of information. As members would imagine, that can cause serious issues. The current limit of 40 hours strikes a good balance, and I am certainly in favour of pushing out as much information as possible.

On your suggestion regarding the 2004 regulations, I would certainly not be in favour of full cost recovery. That would have an impact on those who are least able to pay—in essence, access to information would depend on how deep someone’s wallet was. That is in no way an attractive way forward for us in Scotland. I much prefer the concept of access to information as a universal right. As Lorraine Currie mentioned, the number of occasions on which costs are charged under FOISA is remarkably low, and that is generally a sensible approach.

A supplementary question occurs to me. As you highlighted, there is a different limit in England. Is there a comparison to be made there? What would the data show as the practical impact of having two different limits? Perhaps that is something that I will leave to you.

The problem is that the rest of the UK does not have the same statistical information that we have, although it is looking at moving towards that. It would absolutely be interesting to see the difference in respect of the proportion of cases that are rejected; I imagine that it would be significant.

To build on Liam Kerr’s questions, the committee has had a variety of evidence from different local authorities, and it is clear that the volume of requests coming in is an issue for some of them. Some authorities are therefore looking at who is asking the question or why it is being asked and are prioritising a little. The counter-suggestion is that the system should be applicant blind and purpose blind, and that requests should even be anonymised when they come in. Can you give us your thinking on that area?

I certainly agree with FOISA’s general approach, which is that requests for information are applicant blind. It should not matter whether someone is a journalist or a private citizen, they are requesting public information, and they should be entitled to it unless one of the exemptions applies. Indeed, in our intervention to the Scottish Government, we made it clear that the decision as to whether information goes out should not be dictated by the fact that an individual happens to be a journalist or a political researcher. That should not automatically mean that they have to jump through more processes, which would cause an additional delay in the information going out.

Of course, if information is more complex and sensitive, there is a greater chance that it will be dealt with at a higher level in the system—we understand that.

09:45  

However, the legislation is not completely applicant blind, because there are some reasons why the name of the individual might be relevant. That is particularly the case in relation to vexatiousness. An individual might make requests for inappropriate motives and that might have the effect of harassing the authority. We have various tests for vexatiousness. In determining whether a particular request is vexatious, it is appropriate to be able to look at the wider picture, including the volume of requests from that individual. There are circumstances in which the identity of the individual is relevant to the process.

There would be some practical issues with requests being made without providing a name. For example, how could the individual concerned seek a review? How could they seek an appeal? How could we contact them to allow them to make their representations? How could they then go to court and talk about what they said in their original application?

I took it that there would be a gatekeeper and that whoever looked for the information would do it anonymously, after which it would go back to the gatekeeper. However, I take your point.

Glasgow City Council said that commercial enterprises use the freedom of information system as a way of saving money. Instead of doing their own research, they get Glasgow City Council to do it for them at public expense.

Although you have suggested that the system should be purpose and applicant blind, I would rank an individual who just wants one bit of information higher than a journalist who sends in 200 requests all over the place on a quiet Friday afternoon. Should there not be an element of prioritisation?

Another suggestion, which was made by some of the health boards, was that people who have gone through the health system and are not happy with the result might just want to give the health board a kicking, and they do that by swamping it with requests.

There are two issues there, the first of which is who is applying. In that regard, everybody is equal—it is a universal right. That is one of the strengths of the system, as it does not allow the authorities to make a subjective call on whether the individual in question is worthy or not. There will be different views on that. Some will say that journalists should have more access to information because they can raise issues at a higher level, while others will say that the individual is more important. Having a universal right removes any of those barriers and means that every request is treated in the same way, because everybody has the same right to the information.

Mr Kerr mentioned the 8 per cent increase in the number of requests. If that figure keeps on increasing, given that a health board cannot give treatment to everybody who wants it and a local authority cannot fix every road that needs fixing, surely there needs to be some prioritisation.

The next issue is the request behaviour. You mentioned health boards being swamped by requests and people contacting their authority to give it a kicking. That is when we come into the realms of a request possibly being vexatious, meaning that it should be blocked and need not be responded to. We already have the mechanisms to deal with that bad request behaviour.

I do not agree with the idea of prioritising individuals, because we are talking about a universal right. In essence, it is public information—it is information that we have all already paid for and which we all have the right to receive. In those areas where authorities are receiving lots of requests from companies for particular types of information, it should be asked whether those authorities should be more proactively pushing out that information so that it is out there anyway.

My final question is on vexatiousness, which you have mentioned a couple of times. I think that it was Kevin Dunion who said that the vexatiousness ground for not responding has not been used very much by authorities. Is that your view, too?

Yes. The vexatiousness ground has been and is used by authorities; in 2018-19, authorities used it 175 times. In the context of 83,000 requests, that is not a high number, so it is not used much, but it is used. That is sensible, because it shows that the provision is being used in cases in which people have crossed the line. Public authorities could use it in more cases, but they have a natural reluctance to using it. At the end of the day, we are public authorities and we believe that we are there to provide a service to the public. There is a natural reticence to calling people vexatious—even though it is the request, not the person, that is being called vexatious.

I will look at two areas that have been of interest to the committee over recent weeks. The first relates to proactive publication, which you have mentioned, and the second is the duty or expectation to record certain types of information. In your submission, you suggest

“removing the requirement to adopt a publication scheme”,

which should be replaced with a

“statutory duty to publish information”.

Will you explain, for the ordinary person in the street, the difference between the two? Why do you think that your suggestion would strengthen the 2002 act?

The duty to have a publication scheme is quite an old-fashioned idea. The idea is that an authority has a bit of paper or document that is called its publication scheme, which sets out a number of things, including the classes of information that it will provide to people. Underneath that, there is another document, which is called the guide to information, that sets out everything that the authority publishes under each of the headings. It is quite an old-fashioned, paper-based idea of how an authority lets people know what it will proactively publish and what it is proactively publishing.

Originally, when the 2002 act came into force, the concept was that all authorities would have bespoke publication schemes. As time moved on, we looked at having sectoral schemes, and we have now got to the stage of having a model publication scheme. In other words, we say, “This is our idea of what a good publication scheme looks like—it’s the model publication scheme. Would you like to sign up to that?” The scheme sets out the classes of information that we would expect, such as information about the authority, procurement information, information about how it makes decisions and what decisions it has made, and information about how it manages its physical and human resources. Everyone is now signed up to our model publication scheme, but it is not really doing what it was originally intended to do, which was to make authorities focus on the public interest and push out information when there is a public interest in it.

We should move away from using those documents and focus on publication. Public authorities should proactively publish information when there is a public interest to do so. Instead of having a publication scheme, we could have a code of practice setting out the areas to be included. The code could evolve over time to take into account new technological methods. It could perhaps include a consistent approach to how certain information should be published. That would help requester groups, but it would also help authorities, because it would give them an easier baseline to measure their performance against other authorities, and it would allow them to explain what they were doing. The code of practice would represent a more agile and modern way of doing things, and it would put the focus on pushing out information to the public and not on having a document.

If we introduce a statutory duty to publish information, will that not give rise to people asking what kind of information they should publish? That brings us back to your list. How do we clear that up?

The code of practice could in essence provide that list, but it could do a lot more than that. It could move proactive publication forward in more ways than just by giving authorities a list and asking them to provide the information under it. For example, we provide guidance about what should be published under each of those heads, but that is just good practice; it is not mandatory. At the moment, if an authority does not do that, I have to argue that it has breached its publication scheme duty, and it can become quite difficult to say whether a certain bit of information needs to be published. If there is a code that sets these things out in a nice, straightforward way, it is much easier to enforce. Again, the focus is on proactive publication—it is on making authorities push the information out.

There is currently a duty to publish, but it is a duty to publish information in accordance with the model publication scheme. We have moved on from that. It is almost like an extra layer of old-fashionedness that does not add any value and even distracts from the key thing, which is the importance of pushing out information.

That introduces the idea that information should be published routinely, rather than it being covered by guidance and regulation. Is that what we should move towards? There has been discussion in the committee over a period of time about why authorities do not just routinely publish what they have, rather than being told to publish things. Would you favour that?

Yes, certainly. That is the cultural shift. Sometimes, regulation is needed behind that to kick-start things and make authorities go down that route but, once it is embedded, it becomes part of the normal day job. When people are going through agenda items in committee meetings, they will say of a point in a committee report, “We’re happy for that to be published,” or, “We’re happy for most of that to be published, but not paragraph X, because it contains personal data.” In that way, it becomes much more organic. It is just how things are done, and more important information is pushed out to people.

My other question is about a notional duty to record. Within FOISA, there is no such duty to record anything, but there is perhaps an increasing expectation among the public that information should and will be available. What is your view on that? Should there be a duty to document what happens in the public sector?

In many ways, this goes back to the point that I made earlier about practicality. Whatever system we have in place, it has to be enforceable, because there is no point in having a duty that is so nebulous that it can lead to endless arguments about whether people are complying. Such a system would become almost unenforceable and serve no purpose.

If we have a duty to document, it is important that we have clear definitions of what should be documented. Without doubt, if information is not documented, the freedom of information regime will be of no use to people. That is the bottom line. We need public authorities to record information if the freedom of information regime is to have utility.

There are a number of discrete bits of legislation that require people to record certain things. That is particularly true for local authorities. To me, the key things that need to be recorded are important decisions that are made in authorities, the rationale for those decisions and key bits of information that informed them. If I was asked, “What are the important things that should be recorded?”, I would say that decision making is the big one.

There is a duty to document in the system in Denmark, and it focuses on decision making as the area that should be documented. Because that is a discrete area, it is possible to legislate on it with some certainty, rather than providing, for example, that anything that is of importance to the public must be documented. To introduce that provision would just be to ask for argument, litigation and uncertainty. I know that there have been thoughts about requiring important meetings with outside interests, or all such meetings, to be recorded. If the committee felt that that was important, it would be relatively straightforward to define it and add it to a duty.

There is a big issue to do with whether such a duty lives in the freedom of information legislation or the records management legislation. Authorities already have duties under the records management legislation. The keeper of the records of Scotland is responsible for that, and there is already a requirement for authorities to have records management plans. To a degree, the keeper can require information to be created, but that power lives in the records management legislation and not in the freedom of information legislation.

I was going to come to that, because I was going to ask you to distinguish between what is in FOISA and what the civil service code sets out as a duty to keep accurate and official records. Is it the case that such a duty already exists somewhere else and does not have to be in FOISA? Should we strengthen FOISA to make it adopt aspects of the civil service code? Where does that duty sit?

10:00  

A number of duties are contained in various places. For local authorities, there are a number of discrete, statutory duties to record certain things. Willie Coffey pointed out the civil service code; there is also the ministerial code. A number of codes already have guidance on what should be recorded. The issue that arises when there is no such guidance is who is responsible for dealing with it, what powers they have to deal with it and what sanctions there are. If the responsibility ended up with my office, a significant resource issue would be associated with that, because it is the sort of area where one would expect a number of lively discussions to take place and challenges to be received.

That is helpful. Thank you.

Mr Fitzhenry, I assume that your job is concerned with the quality of information as well as the disclosure of information.

It is concerned with the quality of the responses to make sure that the information is pushed out. Whether that information is accurate is another issue. For example, the value of the freedom of information request might be to show that the authority is working on the basis of inaccurate information, if the information that it holds is not correct.

With our other hat on, in our audit work in this committee, we recently released a thematic report. One of the themes in that report is about data that the Scottish Government holds. We discovered—and the Auditor General also identified—that there is a problem with the lack of data that is held on certain things. Do you find that sometimes, when the public are looking for information, even though it might be an important question, the data is not held by local authorities when you might expect it to be?

Yes, that happens. Occasionally, we express surprise that the information being sought was not held. Sometimes, it is not held because it is held by another body. There are so many bodies involved in health, for example, that the person who made the request might not have identified the correct body that holds the data. Sometimes, authorities have not thought to record that information and freedom of information requests can be used to identify that and to make the authority think while they are compiling their response, “Why do we not have this information? We should have it.” That can help to improve authority practice.

I have a current example of an FOI request that I submitted to all the health boards in Scotland about the number of female spaces in hospitals, because wards are increasingly becoming mixed sex, and female-safe spaces are disappearing. I have been astonished by the responses, because health boards are not recording or holding that information. Is there an opportunity in the work that we are doing to address that and encourage local authorities to have better information keeping?

Yes, as I said, that is an area in which freedom of information can help to identify areas that are not monitored but should be monitored. If a request such as Jenny Marra’s is made and the organisation realises that it is not keeping that information, that is an opportunity for it to say, “Well, let’s now keep it.” A person might make a request like that and get different responses from different authorities in the same sector, because they all record their information in slightly different ways, or because some record that information and others do not. It can help to raise the issue, so that the sector can look at how it records that information and try to have a degree of consistency in that. The problem is that independent authorities will always have a degree of difference in the way they record information.

Is there anything that you feel you have not had the opportunity to address this morning?

The only major point that I would like to make is about intervention and, in particular, proactive intervention. That is about the ability for my office to help improve authority practice, by going to an authority that is performing poorly and helping it to improve that performance—for example, with time delays.

We had a recent example of proactive intervention with East Lothian Council, which was performing poorly on turnaround times. By way of proactive intervention, we identified the problem, went to the council, discussed the matter with it and helped it to move forward. The council put resources in to deal with the issues causing late responses, and its on-time figure improved dramatically; having been as low as 70 per cent, it is up to about 99 per cent. Those were substantial changes.

We need a greater emphasis on allowing us to do that and on the powers that we have to compel witnesses, particularly if we move away from covering only public bodies and into covering private bodies that carry out public services. From an efficiency and effectiveness position, more resource in that area would be money well spent.

I thank Daren Fitzhenry and Lorraine Currie for their evidence this morning. I will suspend the meeting briefly to allow for a changeover of witnesses.

10:06 Meeting suspended.  

10:09 On resuming—