Carole Ewart on a consultation into extending FoI - and why it matters to charities
Last week’s launch of a consultation to reform access to information law in Scotland provides an opportunity for charities, community groups and individuals to express an opinion on how to deliver legal consistency and improve transparency and accountability across publicly funded services.
This matters to you as the proposals include designating third sector organisations, as well as the private sector, under the Freedom of Information (Scotland) Act 2002 (FoISA) if they are delivering publicly funded services. Your views are sought on what value of contract would activate the designation and what would happen about disclosure duties when the contract ends.
Those who govern, those who manage, those who serve, service users as well as advocates and campaigning groups can all have their say on proposals to substantially reform the FoI architecture, increase the range of organisations subject to FoISA and enhance enforcement, so rights and duties remain robust.
Designation under FoISA may cause operational problems for some organisations that receive small amounts of money to deliver services on a shoestring or through volunteers. Therefore, agreeing the value of contracts which activate designation is a pragmatic as well as a principled decision. Designation would only apply to the elements that make up the delivery of the contract, not the entire business of the organisation.
This is an opportunity for third sector organisations to glow in the transparency already provided through proactive publication of what you do and how you spend your money. You can also draw on the extensive internal records management required by the Scottish Charity Regulator (OSCR) and other regulators, grant funders and the public bodies which contract with you.
OSCR requires registered charities to be transparent and accountable. Its report Scottish Charity and Public Surveys 2020 contains key findings which demonstrate why coverage under FoISA has advantages for public accountability and building public trust. In total, 58% of the public said knowing how much of a donation goes to the cause and 55% said seeing evidence of what the charity has achieved would make them feel a charity was trustworthy. Usefully, OSCR publishes a list of the 300 highest income charities in the register and alerts us to the tens of millions of pounds which some charities enjoy. The size of contracts and the extent of public services delivered varies enormously.
Being transparent and accountable has consistently proven to build public trust in public services. Polling by the Scottish Information Commissioner in 2019 found that 77% would be more likely to trust an authority that publishes a lot of information about its work. Clearly FoI is an asset not a liability.
Several types of organisations have been added to FoISA over the last 17 years which provide reassurance about impact. Privately managed prisons, independent and special schools and leisure trusts have all been designated. The largest extension was achieved in 2019 when Scotland’s registered social landlords (RSLs) and their subsidiaries were designated under FoISA. Despite some dire warnings, 60% of RSLs responding to the commissioner’s survey, reported they received six requests or fewer during 2020, while 95% reported 24 or fewer. Most RSLs, therefore, are receiving on average no more than two a month. The RSL experience is similar to other organisations designated in previous years, as they have not been overwhelmed by FoI requests and generally are successfully meeting duties within existing resources. Some have contracted with an outside body to manage the FoI process and this approach may be replicated by those newly designated.
The Campaign for Freedom of Information in Scotland (CFoIS) supports the right of people to ask for information from publicly funded services and to enforce that right for free, if they are refused all or part of the information within 20 working days. Currently the right is inconsistent as it depends on who provides the service rather than the type of service such as social care. This transparency deficit has a disproportionate impact on some, such as disabled people, who receive all of their services from the third and private sectors.
CFoIS welcomes the decision of Katy Clark MSP to deliver reform of FoI law through a member’s bill and we will work with a cross party alliance to progress the bill. Her current consultation proposes substantial reforms, inspired and informed by the CFoIS draft bill published in January 2022 and subsequent work, and will give effect to the parliamentary critical inquiry report of May 2020 which included increasing the range of bodies designated under FoISA. Please share your views and support the proposals.
Access the Consultation here Proposed Freedom of Information Scotland Bill, Scottish Parliament Website
Carole Ewart, is convener of the Campaign for Freedom of Information in Scotland.