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The voice of Scotland’s vibrant voluntary sector

Published by Scottish Council for Voluntary Organisations

TFN is published by the Scottish Council for Voluntary Organisations, Mansfield Traquair Centre, 15 Mansfield Place, Edinburgh, EH3 6BB. The Scottish Council for Voluntary Organisations (SCVO) is a Scottish Charitable Incorporated Organisation. Registration number SC003558.

FOI: voluntary organisations must engage with "inevitable" reforms

This opinion piece is over 1 year old

While reforming FOI to cover more organisations is unavoidable, how that reform looks is not set in stone

Trust really matters to voluntary organisations. We're a sector that sees trust as a crucial resource we must earn. Without it, a voluntary organisation cannot act and fulfil its mission. We build that trust through several ways but looking to boost transparency and accountability is always centre stage. 

Strengthening trust must be a driver of a future independent review of charity regulation, an SCVO call that the Scottish Government has recently backed. That will take some time to come to fruition, and we must approach any other proposals that seek to strengthen transparency and accountability with an open mind. 

One proposal on the table is to extend the coverage of freedom of information legislation - formally known as The Freedom of Information (Scotland) Act, or FOISA - to voluntary organisations that deliver services of a public nature or receive public funding. It's a proposal by Katy Clark MSP, who is consulting on a member's bill. 

Nobody proposes an extension that would cover all aspects of a voluntary organisation. Still, the proposal to extend FOI to cover certain functions of what voluntary organisations do could bring thousands of organisations into scope. The MSP for the West Scotland region is proposing reforms that would seek to follow the public pound. 

The consultation, open until 3 February, seeks views on whether FOI should cover voluntary organisations and how any proportionate extension might look. Often, this discussion centres around exemptions for funding and contracts that do not reach a specific financial sum. However, what legislators deem proportionate could cover several other factors. 

Under the Scottish Government's current powers, known as section 5 (of the Act) powers, a proportional extension looks to cover certain parts of the service delivery landscape rather than a whole sector, such as third or private. Ministers adopt a factors-based approach when considering an extension, and the extent of public funding is just one of the factors. 

Ministers used this power in 2019 when they legislated to extend FoI to Registered Social Landlords. The Scottish Government's latest view on the matter, covered in a separate consultation on access to information rights in Scotland (closing on 2 February), appears to suggest more regular extensions through this route - including to parts of the voluntary sector - remains its preferred route. 

Even without Katy Clark's proposal for the FOI Reform Bill, the Scottish Government would have sought to extend FOI to certain parts of the voluntary sector soon. While the Scottish Government's consultation takes a more cautious tone, there is no doubt that it will now seriously consider responses to the member's consultation to reform FOI in a much broader and speedier manner.  

The proposal of a member's bill from Katy Clark MSP and the Scottish Government's consultation present two very different approaches to ensuring access to information rights keep pace with varying ways in which public services are delivered. Both, however, come off the back of a crucial report from a committee of the Scottish Parliament, which called for significant reform. 

Reforming FOI to cover more organisations is inevitable. What is not inevitable is how that reform looks. Whether it's a cautious or broader approach, change is on the cards for some or all parts of the voluntary sector. Voluntary organisations must engage with this issue while different approaches are on the table to ensure they are not playing catch-up when any reform eventually arrives. 

SCVO will make that task much more manageable. Any voluntary organisation can join our online event with Katy Clark MSP, the Campaign for Freedom of Information in Scotland, and the Scottish Information Commissioner on 9 January. This event is your best chance to put questions to those calling for reform and contribute to SCVO's response to the extension issue.   

If SCVO is to approach these proposals with an open mind, we must hear from as many voluntary organisations as possible. I've already met with a range of sector bodies over recent weeks, and others are welcome to get in touch with their views by email or booking a short call with me. Our work here will likely inform SCVO's position on the reform of FOI for some years to come. 

Paul Bradley is policy and public affairs manager at SCVO.



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Ruchir Shah
over 1 year ago

Personally, I really do believe that FOI was designed with public sector organisations in mind, where they can transfer statutory responsibilities and record keeping to other public organisations when they get wound up, and where they get backed by further Government capacity when they need it. Therefore, in order to extend to public functions by third sector, FOI itself will need to change, rather than simply be extended. Extending based on public funding seems strange to me, as a lot of activities (perhaps all) are publicly funded or subsidised in some way or the other. Other routes to transparency could apply there.

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Joe Bags
over 1 year ago

Makes no sense. You can create transparency through the OSCR not through legislation for a different sector. This could get messy as some charities have trade secrets regarding fund raising and service provision etc. it would be akin to asking Microsoft for a foi lol. Charities operate in disputed space. You really want to give a anti-gay crusader the right to annoy a gay Charity with bogus requests desperately seeking to find harm? Unlike the gov charities do not have access to legal resources to stop this carry on. No. OSCR must do their job and ask for whatever they need not Joe Public. Joe Public has an avenue it’s called the OSCR. Who comes up with these crazy ideas? Charities have rights too. The problem with heavy legislation is it makes barriers to entry. I am not one for obsessive legislation in the space. I think the OSCR have nailed the balance leave it to them.

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