​FoI can present challenges for the third sector - but they are not insurmountable

The Campaign for Freedom of Information in Scotland is working for a successful conclusion to the current Scottish Government consultation on extending the Freedom of Information (Scotland) Act 2002 (FoISA) to any organisation delivering public services or services of a public nature.

Both third sector and private sector organisations will be captured by FoISA and we know there is support for our view.

However, we are encouraging everyone to respond by 22 November so we can all have our say and the roll out of the duty has third sector buy-in and is operationally realistic.

Your views are sought on a range of matters including which services provided on behalf of the public sector by organisations should be covered by FoISA?

And which type of organisations that receive public money to deliver public services or services of a public nature should be covered by FoISA?

Are we in a muddle about the extension of FoISA? I think not as we need to focus on what we value and what we want

Carole Ewart

FoI rights need to be kept under constant scrutiny in Scotland as they can only thrive if they are relevant and fit for purpose.

Currently there are not, leading the Scottish Parliament to vote unanimously for post legislative scrutiny of FoISA on 21 June 2017 and that process has been underway since March 2019.

Subsequently in August, the Scottish Government launched its promised consultation so there are two separate streams of work to update FoI rights.

A third development happened on 31 October, when the Scottish Government met its statutory obligation to publish a report on the use made by Scottish ministers of their powers to extend coverage of bodies covered by FOISA over the last two years.

The report details pre-consultation discussions which reveal, what the sector already knows, that third sector bodies are “a very diverse landscape across Scotland. Not all third sector bodies receive public funds, and some may receive them only in relation to a proportion of their work or for a limited period. If a charity were designated on the basis that it received public funding, and then its funding sources changed, we consider that this would give rise to difficult questions, particularly if the source of funding changed on a semi-regular or cyclical basis.”

The Scottish Government goes on to acknowledge further potential tricky operational issues and there is an invitation to provide “evidence on whether extending FOISA to organisations providing services on behalf of the public sector is likely to impact on those organisations’ ability to provide services.”

This whole situation presents a reputational dilemma for third sector organisations. Scottish Information Commissioner polling in 2017 confirms that 77% would be more likely to trust an authority that publishes a lot of information about its work, so to oppose coverage would give the impression of being hostile to the public’s right to access information about services paid for by public money.

Whether a service is funded by the public purse or from the purse of generous individuals, third sector organisations already have a broad range of ways to be open and accountable about how they spends their money and the services they provide.

Moving that accountability to a structure which puts the public in the driving seat will of course cause nervousness, but it can be managed.

So, are we in a muddle about the extension of FoISA? I think not as we need to focus on what we value and what we want: high quality publicly funded services which are subject to scrutiny. However, the process of scrutiny through FoISA needs to be funded by the public purse as that is an essential element in the service procured.

Carole Ewart is the convener of the Campaign for Freedom of Information in Scotland.