Chamber and committees

You will appreciate that our job is to interrogate the workability of proposals.

We have been doing work on that, as you might imagine. It has not concluded, but, as things stand, we have identified only one company that we believe will be captured by that—Research Data Scotland. The members of the company are the Scottish ministers, Public Health Scotland and a number of universities. I am not saying that that will be the definitive list, but we have identified one.

We recognise that there is an anomaly, and we are supportive of the approach that is proposed in the bill, because it would allow us to address that anomaly.

It is not about not wanting to see that progress—

It goes back to those age-old questions about how quickly organisations can be designated and whether the whole process should be sped up. I have some sympathy for that argument and can understand frustration from the outside about the time the process takes, but if you consider all the requirements that need to be met to get the process right, you see that much of that time is necessary. I would certainly be happy to explore how the process could be sped up without compromising it or its robustness in any way.

If we identify others quickly, we will write to the committee with further information.

I will bring in the team, because they have the detailed answer.

I am delighted to have the opportunity to give evidence on Katy Clark’s Freedom of Information Reform (Scotland) Bill. The Government’s starting point is that the current Freedom of Information (Scotland) Act 2002 is fundamentally sound and well used and that there is strong compliance. It ensures a strong and enforceable public right of access to information about the work of Government and public services. It also contains safeguards to protect genuinely sensitive information and the resources of public authorities. Although it is similar in form to the United Kingdom legislation, our regime is more weighted towards the rights of the requester in a number of respects, so more information is released.

However, that is not to say that it is perfect or that it could not be improved. FOI law has not remained static over the past 20 years. The Freedom of Information (Amendment) (Scotland) Act 2013 made a number of changes to ensure that the law was working well, including changes to ensure that the offence of altering records with the intent to prevent disclosure was enforceable, and to enable earlier release of historical records.

In relation to coverage, FOISA has also been extended in a number of significant ways through the exercise of the existing extension powers that are held by ministers, as approved by Parliament. Those include extensions to local authority culture and leisure trusts in 2013; to bodies of various types in 2016, including grant-aided and independent special schools; and, in 2019, to registered social landlords and their subsidiaries. I led the last of those extensions during my previous time as Minister for Parliamentary Business and Veterans. One year on from designation, 97 per cent of RSLs indicated that they were confident in responding effectively to FOI requests. We are now preparing to consult on extension to private and third sector care homes and care-at-home services. I hope that those initiatives show the value that ministers have attached to protecting and expanding FOI rights since the Government has been in office. We have taken a proactive approach to enabling provision of information.

There is no doubt that fulfilling FOI obligations can place a high demand on resources, particularly of larger public authorities. The Scottish Government now responds to 6,000 requests per year, some of which can be complex and multiple in their asks. We are currently analysing how much those requests cost us. Initial work on 12 cases suggests a cost of anything between £215 and £3,400 per request. Clearly, more work is needed to understand those variances, and that work is under way.

The Scottish Government is not alone in seeing rising request numbers year on year, and that is a cost to the public purse. As we consider reform and improvement of FOISA, we must therefore be mindful of the need to ensure that it remains proportionate in its requirements. However, I want to be clear that I highlight that not as a complaint or to appear resistant to change or reform but to offer a fuller perspective on how FOISA works in practice.

Turning to Ms Clark’s bill, as members will have seen from my memorandum to the committee, we have sought to take a constructive approach. We have set out where the Government agrees with the bill’s aims and where we think that some of the proposals might be improved, and we have highlighted the aspects of the bill that the Government regards as problematic.

The bill is not a Scottish Government bill, so it is for the member in charge to address any concerns that the committee’s stage 1 report might raise. However, I am ready to engage with the committee and wider Parliament, both in the context of the proposed legislation and in a wider sense, on how the regime might be improved. Therefore, I and my officials are happy to answer any questions that members have today to that end.

As you will appreciate, I cannot speak for the Parliament in the next session, but I think that it would be fair to say that we recognise that there are some areas where, if there was a primary legislation vehicle in the next session, it might be appropriate to use that opportunity to look at where FOISA is working effectively and where things might be tightened up. Without committing Parliament or the next Government to that, I think that there is a recognition that a time is perhaps coming when that would be useful.

In our response via the memorandum, we have identified our areas of concern, and, when those are taken cumulatively, we cannot support the bill, or aspects of it, in its current form.

The question then comes down to something that we touched on earlier: the amount of time that we have in which to address the concerns. From the Government’s perspective—not just as the Government, but in trying to ensure that any legislation that is passed is workable, appropriate and fit for purpose—we do not have a lot of time in which to address the issues. As I said to the convener previously, our resources are spread very thinly, given that so many bills are on the go and a lot of SSIs are in play or coming into play, for us to have the time to address the issues in the remainder of the parliamentary session.

Clearly, if the bill is recommended to the Parliament and passes stage 1, we will do our bit to work with the member in charge, where they are willing to work with us, to explore how to ensure, as best we can, that anything that comes forward to the Parliament at stage 3 is as workable as possible.

Well, thanks for that question.