Freedom of Information in Scotland: A Tale of Two Consultations

Document Cited in Related
DOI10.3366/elr.2024.0903
Author
Pages278-284
Date01 May 2024
Published date01 May 2024
INTRODUCTION

In the nearly two decades it has been in force, the Freedom of Information (Scotland) Act 2002 (FOISA) has helped to support the transparency and accountability of public institutions by requiring them to respond to information requests and to make certain types of information routinely available.1 Post-legislative scrutiny has concluded that although FOISA is generally working as intended, there is still room for improvement.2 In particular, the diverse forms of public service provision that have arisen due to privatisation and outsourcing have left many private actors delivering public services outwith the scope of FOISA, which was designed to apply to public authorities.3 As such, calls have been made to extend the scope of FOISA to ensure that information rights are not diminished by privatisation.

This analysis examines the scope of FOISA in the light of two recent consultations, one brought by Katy Clark MSP in November 20224 and the other introduced by the Scottish Government in December 2022.5 It compares the divergent approaches taken by these two consultations, with Clark advocating widescale reform through a members’ bill designed to ensure that all private bodies delivering public services are subject to FOISA and the Scottish Government taking a more conservative approach to make improvements within the existing legislative framework. The analysis begins with an overview of the current state of FOISA coverage, focusing on the gaps that are left when public services are privatised or outsourced. It then explains the background to the recent consultations before analysing the Scottish Government’s plans for improvement, demonstrating that the two approaches to reform are indicative of a longstanding debate over the scope of FOISA that will not be settled by these recent consultations. It also argues that both consultations have failed to consider the wider risks to transparency that are posed by the commercialisation of public services, which cannot be addressed solely by focusing on the scope of FOISA.

 FOISA AND PRIVATE BODIES

FOISA confers on the public an enforceable right to request information held by public authorities, which are listed in Schedule 1 of the Act. Additionally, FOISA section 5 allows for the designation of further bodies, including those that “appear to the Scottish Ministers to exercise functions of a public nature”.6 This provision takes into account the fact that public services are delivered under contract by bodies that are not traditional public authorities. To date, the section 5 powers have been used on several occasions to bring additional bodies within the scope of FOISA. These include the 2013 designation of arm’s length external organisations (ALEOs) delivering culture and leisure services,7 the 2016 designation of privately managed prisons, independent special schools, grant-aided schools, providers of secure accommodation for children, and Scottish Health Innovations Ltd,8 and the 2019 designation of registered social landlords (RSLs).9

Despite these section 5 designations, there are still some notable...

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