Access to information rights: consultation analysis

7. Key outcomes from responses

7.1 Agility of the regime - maintaining and strengthening access to information rights in the context of varied models of service delivery

286. Across questions relating to the agility of the regime and its ability to deliver access to information rights across diverse models of service delivery there was a clear divergence between respondents representing the perspectives of Scottish public authorities and those representing civil society and the third sector.

287. Respondents representing the perspectives of Scottish public authorities were generally more likely to consider that the law as it stood was sufficient to ensure that information about services – including those delivered by private and third sector providers under contract – was accessible, whilst civil society and third sector respondents were more sceptical about this. The Scottish Information Commissioner also expressed scepticism.

288. There was a widely held view among respondents that greater assurance about the Scottish Government's future use of its power under section 5 of FOISA, to extend the legislation to further entities, would be welcome.

289. There was also wide support for greater clarity in guidance about the FOISA status of information held by external contractors – whether in relation to the delivery of 'public' or 'ancillary' services. More respondents than not recognised the relevance of making a distinction between 'public' and 'ancillary' services when considering issues around access to information.

290. Views were more varied in relation to changes to primary legislation to address issues around coverage of the legislation. Civil society and third sector respondents were generally more persuaded of the case for reform to make the primary legislation more agile, in terms of its ability to ensure the 'right' organisations are covered with Scottish public authorities expressing more caution. Some third sector organisations also expressed concern about the impact and proportionality of extension of FOISA to third sector service providers.

291. The proposal for a 'Gateway Clause' to introduce a greater component of automaticity in coverage was supported by a significant minority of respondents, representing a diverse range of organisations. There were divided views about whether there should be exceptions for SMEs and/or third sector providers from any measure.

292. There was majority support for broadening the section 5 power to enable extension of FOISA to a wider range of bodies. There was a roughly equal split of views on whether a 'clearer legislative steer' was required in relation to the FOISA status of information held by contractors – whether in relation to 'public' or 'ancillary' services.

293. The Scottish Information Commissioner made a specific proposal for legislative reform, in terms of a new power for the Scottish Parliament to make revisions to Schedule 1 of FOISA and a requirement for the Parliament to periodically review coverage of the legislation.

294. Relatively few respondents had direct experience of 'confidentiality clauses' affecting the release of information and views were divided on whether the legislation required to be amended to prevent reliance on them.

295. There was wide support for changes to improve and clarify the operation of section 6 of FOISA, to ensure companies wholly owned by a combination of the Scottish Ministers and other authorities are subject to FOISA.

7.2 Developments in Information Technology - ensuring access to information rights in the face of changing modes of information use

296. There was recognition by respondents of all types of the compliance risks which may be posed by the use of so called 'unofficial platforms' for conducting business in Scottish public authorities. There were a range of views advanced about how to mitigate these risks. However, most respondents tended to the view that answers to these questions were likely to lie in stronger guidance and organisational approaches rather than changes in the law.

297. Opinions on the desirability of introducing a fuller definition of 'information' into the legislation were divided. Most respondents agreed that if such a definition were to be introduced, it should mirror that provided in the EIRs: 'any information in written, visual, aural, electronic or any other material form'.

7.3 Improving proactive publication – promoting openness as 'business as usual' in a digital age

298. There was a general view among respondents that there is scope for improvement to approaches taken by Scottish public authorities to proactive publication, but mixed views on how to best advance that improvement.

299. There was openness on the part of most respondents to the proposed changes advocated by the Scottish Information Commissioner – to replace the existing statutory requirement for each Scottish public authority to maintain a publication scheme with a statutory duty to proactively publish information, supported by a Code of Practice. However, some respondents had concerns about the workability of the approach. Some respondents suggested alternative approaches.

300. There were mixed perspectives among respondents regarding how satisfied they were with the current availability of information about government and public services in Scotland. Overall, more respondents said they were 'satisfied' than 'dissatisfied'.

301. Respondents provided various perspectives on the types of information they would wish to see authorities proactively making available. This most frequently mentioned was financial/budgetary information. Data/statistical information, information about services, information about/underpinning decisions and policies, performance information, information about contracts, information about people involved in services and their interests, diversity data, demographic data, major projects or other high impact issues were also mentioned by respondents as areas where they would wish to see proactive publication.

7.4 Technical and other issues – ensuring the Act remains fit for purpose

302. There was wide support for the proposal to amend the approach to estimating cost of compliance to reflect and estimate of staff time, without a requirement to state this in financial terms. However, some respondents believed making this change would add little value. Some had concerns about authorities losing the ability to take non-staff related costs into account.

303. Views were divided in relation to the introduction of a power to transfer of requests between authorities under FOISA, as can already be done presently under the EIRs. Relatively few respondents had experience of this provision operating under the EIRs. Equal numbers of respondents supported and opposed the change.

304. There was a clear divergence of perspectives between Scottish public authorities and other respondents on the proposals to amending the provisions for seeking clarification. Almost half of respondents overall favoured making no change in this area, with a smaller minority actively supporting either of the change options put forward. However, among respondents not representing a Scottish public authority perspective there was stronger support for change, with the option of 'amending FOISA to ensure that the 'clock' is only paused, not reset, from the date clarification is requested' being the most popular among these respondents.

305. There was majority support among respondents for removal of section 48 prohibitions on the Scottish Information Commissioner considering appeals about information request handling by his own office and decisions of the Lord Advocate (in her capacity as Head of the systems of prosecution and investigation of deaths in Scotland) and procurators fiscal, with relatively few actively opposing the proposal. However, significant numbers of respondents indicated that they did not know/had no view on these issues.

306. Over three times as many respondents supported the removal of the First Ministerial 'veto' power as supported its retention. However, the largest group of respondents to this question indicate that they did not know/had no view. Those advocating for removal generally indicated their view that the power was contrary to the principles of Freedom of Information. Some of those supporting its retention expressed support for the power as a safeguard for use in exceptional circumstances.

307. There were more respondents who opposed the introduction of specific provision for a presumption in favour disclosure into FOISA, than there were who supported it. However, there was a divergence in perspectives on this matter between Scottish public authorities and other respondents, with support for the measure stronger among civil society and third sector respondents. Among respondents of all perspectives there was recognition that a presumption in favour of disclosure should already be understood to be the expectation under FOISA.

308. There was wide support for the proposal that the Scottish Information Commissioner should be empowered refer failure to comply with a decision on time to the Court of Session. However, a significant number of respondents indicated they did not know/had no view on the proposal. Those supporting change saw this as a reasonable measure to give the Commissioner greater leverage to require prompt compliance with decisions on the part of authorities. However, some respondents expressed concerns about proportionality, and the need for a constructive relationship between the Commissioner and authorities.

309. There was wide support for the proposal to specifically exclude environmental information from FOISA in order to improve the approach to handling environmental information and the relationship between FOISA and the EIRs. Those supporting change generally considered this could make the access to information regime clearer for requesters. However, some had concerns about the risk of unintended consequences.

310. There was majority support among respondents for a new exemption for the Scottish Information Commissioner to provide a more satisfactory basis for him to refuse to disclose information received from Scottish public authorities to enable his consideration of appeal cases. However, a significant number of respondents indicated they did not know/had no view on this issue. Some respondents questioned whether the measure was necessary.