Carole Ewart on the member’s bill to reform Scotland’s 23 years old freedom of information law

Transparency and accountability enable scrutiny and collectively are proven to build public trust in democratic institutions and public services.

Enforceable access to information rights is a tool to make it happen. Therefore this week’s publication of Katy Clark MSP’s member’s mill to reform Scotland’s 23 years old FoI law is a landmark moment as its purpose is to restore and strengthen rights and duties on the disclosure of information to the public.

What is not in the bill is a general extension of FoI law to private and third sector bodies delivering public services.

The consultation which ran from 2022-2023 evidenced what a huge job that will be and one for the future because there are so many private and third sector providers of public services. A huge backlog in sector “designations” has grown because Scottish ministers have failed to use current powers to consult on and add new sectors such as care home providers. From Care Inspectorate data we know most care home services are delivered by the private and third sector which amounts to 516 distinct providers.

Even when the law changed in 2013 and Scottish ministers must report to Parliament every two years on new designations, the majority of the seven reports confirm no new sectors have been added.

The bill enables a committee of the Scottish Parliament to take on that responsibility, to consult extensively and for MSPs to vote on whether or not to designate new sectors. The intention is that by expanding the mechanism for designation, the process should pick up pace and more public services operate within the FoI regime.

The bill fixes a legal loophole resulting in an increase in the number of publicly owned companies designated. Those wholly owned by Scottish ministers and other Scottish public authorities will be covered too and, while the exact number is a secret, CFoIS speculates it will around 99.

The bill will change culture and practice by requiring public authorities to proactively publish information to comply with a new code of practice and for public authorities to appoint a Freedom of Information Officer to help the public exercise their rights and organisations comply with duties. The duty to advise and assist requestors already exists and needs to be promoted better so people can access help in formulating FoI questions.

Increasing proactive publication is also expected to reduce FoI requests in the first place as information is already accessible on issues which matter to the public.

Importantly, the bill strengthens the enforcement powers of the Scottish Information Commissioner because without robust consequences for a failure to comply with the law, the FoI architecture would crumble in Scotland.

Over the next 10 months, CFoIS will work with MSPs from all parties to ensure the bill becomes law by March 2026 to fix Scotland’s transparency deficit.

If you want to know more about the Bill as well as the campaign in support of it, join CFoIS at the next online meeting of SPIF on 16 June at 10.30am.

Carole Ewart is director of Campaign for Freedom of Information in Scotland (CFoIS)