In what may come as little of a surprise to anyone, the current SNP minority Scottish Government have stalled on expanding the reach of Freedom of Information legislation, apparently after business interests lobbied to prevent any further reforms to FOI in Scotland.
The Sunday Herald reports :
EXCLUSIVE: Rob Edwards
30 Jan 2011
The Scottish Government has been slapped down by the Information Commissioner for bowing to pressure from big business and abandoning plans to end the secrecy enjoyed by private contractors working for the state.
Ministers have shelved proposals to extend freedom of information legislation to cover the companies that build and run schools, hospitals, prisons and roads. The move was fiercely opposed by the firms.
Other bodies which will also now escape designation under the Freedom of Information (Scotland) Act are trusts set up by local authorities to run leisure and cultural activities, Glasgow Housing Association and the Association of Chief Police Officers in Scotland.
The U-turn has earned a strong rebuke from the Scottish Information Commissioner, Kevin Dunion.
He said: “I have consistently warned the government that freedom of information rights are under threat given the number of local authority trusts and private contractors used to deliver public services … I am disappointed that successive Scottish administrations have failed to use their powers to protect and extend the public’s right to know.”
Campaigners accused ministers of caving in to vested interests.
Carole Ewart from the Campaign for Freedom of Information in Scotland said: “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 said they don’t like the idea the government has shelved it.”
Ewart warned that Scotland was now losing its lead over England on freedom of information. South of the Border, the law is being extended to cover police chiefs, the Local Government Association, the Law Society and other bodies that are not going to be covered in Scotland.
The Confederation of British Industry (CBI) in Scotland lobbied strongly against the extension of freedom of information rights. It has warmly welcomed the government’s change of heart.
CBI Scotland’s assistant director, David Lonsdale, said: “Extending freedom of information obligations to private sector suppliers of public services would have been unnecessary, costly, and at odds with promises to simplify regulation and public procurement, so we are pleased that ministers have listened.”
The Scottish Government accepted that there was “broad support” for increased openness and transparency.
But it said: “Any extension of legislation is not favoured by the majority of those bodies proposed for coverage at the present time.”
The Scottish Government’s rather long winded statement saying FOI would not be expanded to private contractors working for the state, issued earlier in the week, follows :
Freedom of Information (FoI)
Minister for Parliamentary Business Bruce Crawford today announced the Scottish Government is committed to bringing forward a Bill clarifying and strengthening the Freedom of Information (Scotland) Act.
After six years of the existing legislation, some necessary improvements have been identified, meaning the time now seems right to review the legislation as a whole.
Mr Crawford said that the Scottish Government intends to bring forward measures to strengthen and improve the Act through a Freedom of Information (Scotland) Amendment Bill in the next Parliamentary session.
The Government also considers that it would be premature to extend the legislation to cover a greater range of bodies delivering public services during this Parliamentary session.
The Freedom of Information (Scotland) Act 2002 encourages the development of a more open culture across the public sector by providing a statutory right of access to information held by some 10,000 Scottish public authorities.
The proposed legislation in the next Parliamentary session will put right two deficiencies in the current FOI laws that have been identified relating to Part 5 (Historical Records) and Section 65 (Offence of altering etc. records with intent to prevent disclosure).
The Scottish Government also intends to review and consult on how best the Act can be improved and strengthened as part of bringing forward this primary legislation.
Ministers consulted last year on whether existing FOI legislation should be widened to cover a greater range of bodies who deliver public services in Scotland. As was made clear at that time, the consultation was necessary as the Scottish Government had not reached firm conclusions on which bodies it might be appropriate to extend coverage to.
As a result of this consultation, Ministers believe it would be premature to extend coverage before the deficiencies in the Act can be put right and the opportunity is taken to strengthen and update the current legislation.
Minister for Parliamentary Business Bruce Crawford said:
"Freedom of Information has brought a welcome culture of openness and transparency to the work of Government and other public bodies since its introduction in Scotland, and we can be proud of the fact that we have set an example for other countries in this respect. However, the existing legislation can be improved, and that is why we intend to bring forward legislation in the next Parliamentary session to improve and strengthen the existing Act.
"At the same time, 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.
"It was also apparent from the replies to the consultation that many of these organisations are already acting within the spirit of the act by making relevant information available, through both voluntary and statutory means. Ministers believe it would be premature to extend coverage before the deficiencies in the Act can be put right and the opportunity is taken to strengthen and update the current legislation.
"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.
"The Scottish Government will always encourage all organisations in Scotland to operate with the same principles of openness and transparency as ourselves, as they are fundamental elements of open democratic government and responsive public services."
Part 5 (Historical Records) relates to the 30 year lifespan of a 'historical record'; sets out the exemptions which are subject to this category and identifies the lifespan of certain other exemptions; and gives Scottish Ministers order making powers to amend these timescales.
By Order under Section 59 Scottish Ministers can change the 30 year lifespan to 15 years (or, whichever lifespan they so choose to define). This amendment however, would change all exemptions in Section 58(1). In order to be able to move these timescales independently, primary legislation will be required.
Section 65 (Offence of altering etc. records with intent to prevent disclosure). The destruction of information after it has been requested is a criminal offence. The standard timescale for commencing proceedings of a summary conviction is 6 months as set in section 136 of the Criminal Procedure (Scotland) Act 1995.
Due to the process that FOISA follows, it is potentially 10 months from commission before any offence could be discovered by the Commissioner at appeal stage. Subsection (2) of section 136 of the Criminal Procedure (Scotland) Act 1995 allows Acts, such as FOISA, to fix their own time limit.