Scotland Decides Against Extending Scope of FOIA

28 January 2011

The Scottish government Jan. 26 said it had decided against making certain private entities that perform public functions subject to the Freedom of Information Act.

Calling such the extension idea “premature,” the government cited opposition from the contractors and their representative bodies as a key factor behind their decision, but acknowledged “near universal support” from others who commented during a consultation period. (See previous report.)

The Campaign for Freedom of Information in Scotland (CFOIinS) said it was “deeply disappointed” by the government’s announcement, which also indicated that several FOIA amendments will be proposed.

Scottish FOI Commissioner Kevin Dunion had supported the expansion of jurisdiction, indicating last year that he did not think it would be an undue burden.

Opposition Persuasive

Explaining the decision in a statement, Minister for Parliamentary Business Bruce Crawford said, “… Scottish Ministers have carefully considered responses to our consultation on the possible extension of FOI, and it is clear that, while there is broad support for the principles of openness and transparency, any extension of legislation is not favoured by the majority of those bodies proposed for coverage at the present time.”

He also said “many of these organisations are already acting within the spirit of the act by making relevant information available, through both voluntary and statutory means.” In addition, he stated, “In the meantime, alternative methods with the same aim, including revision to the FOISA Code of Practice, assessment of the impact of the proposed Scottish Housing Charter and the further development of the transparency agenda, will continue to be explored.

Campaigners Disappointed

Carole Ewart, co-convener of Campaign for Freedom of Information in Scotland said in a statement

We are deeply disappointed that the Government has reversed its position on extending the Act because of opposition from the private sector bodies themselves. It would have been obvious to ministers before making these proposals that the contractors did not want to be covered, and we are amazed that merely because they have now said they don’t like the idea the government has shelved it. If FOI was only applied to bodies that volunteered to be covered we wouldn’t have a Freedom of Information Act in Scotland at all.

In December 2009 the Scottish government announced that it was considering extending the act to: contractors who build and maintain hospitals and schools, who operate and maintain trunk roads, or who run privately managed prisons or provide prison escort services. Only contracts above certain values would have been covered. Trusts running local authority sports, leisure and cultural facilities were also being considered for inclusion along with the Glasgow Housing Association and the Association of Chief Police Officers in Scotland.

The Scottish government also said that there was “minimal evidence” of people having difficulty obtaining information about the private contracts, for example on road building.

But the CFOIinS pointed out that only two weeks ago the Scottish Information Commissioner ruled that information about the cost of utility contracts on the Edinburgh Trams Project could not be disclosed because the information had been provided by the contractors in confidence to tie Ltd, the public body responsible for the project.

Plans to bring the Association of Chief Police Officers in Scotland under the act are also now not proceeding, after ACPOS questioned the value of the move, according to a CFOISinS statement. The group said that the equivalent body in England, Wales and Northern Ireland – ACPO – had volunteered be brought under the UK’s Freedom of Information Act.  The UK government said recently that ACPO would be covered by the UK Act, a decision originally announced by the last Labour government. (See report.)

Ewart said, “The Scottish public will now have less information about its policing than the public in the rest of the United Kingdom.”  She added: “The  Westminster government is also proposing to extend the UK FOI Act to other bodies including the Local Government Association, the NHS Confederation, the Law Society and the Bar Council – but there are no moves to bring their Scottish counterparts under Scotland’s FOI Act. Scotland is now falling behind England in FOI terms. When the legislation was originally passed, the Scottish Act was widely regarded as better than that which applied across the rest of the UK.”

Plans for Amendments Revealed

At the same time, the Scottish Government proposed a few amendments to improve the act, which the Campaign welcomed. Some kinds of government records will be released after 15 years instead of 30 years. And the act will be changed to make it easier to prosecute authorities which deliberately shred records to prevent their disclosure.

The government announced that other changes to “correct deficiencies in the Act” were also being considered. The Campaign expressed concern that this could lead to greater charges for information, or to changes that would make it easier for authorities to refuse requests on cost grounds.

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