Outgoing Information Commissioner Kevin Dunion urges Holyrood to safeguard information rights. THE outgoing Scottish Information Commissioner, Kevin Dunion, who was appointed to the post in 2003 and reappointed for a second term in 2008, will lay a Special Report before the Scottish Parliament entitled Informing the Future -The State of Freedom of Information in Scotland. Afterwards he will address the Justice Committee on the measures which he believes should be taken to safeguard and strengthen rights to information in Scotland. The full report by Mr Dunion to the Parliament can be downloaded here : Special Report to the Scottish Parliament 2012 (pdf - 724 kB)
This is the first time that a departing Parliamentary officeholder has formally made a submission to Parliament reflecting on their full term in office.In his final report, the Commissioner recommends that:
Additional bodies should be designated under FOISA to ensure rights follow the public pound.
Charges which deter or exclude requesters must be avoided.
The Commissioner should be empowered to take evidence under oath.
The Commissioner should have discretion over considering late submissions to his investigations by public authorities.
Timescales for bringing prosecutions under section 65 (offence of destroying information after a request) should be extended.
FOISA should be altered to expressly exclude environmental information so it can be dealt with solely under the Environmental Information (Scotland) Regulations 2004 (the EIRs).
Provisions relating to charging for information under publication schemes should be clarified.
The Commissioner concludes that, overall, the state of freedom of information in Scotland is still strong. Public awareness of FOI rights is at an all time high and public authorities are generally complying with their obligations. However he warns that appeals against authorities are rising sharply, with appeals for 2011/12 projected to be 25% up on 2010/11. Increasingly, the Commissioner's decisions are finding that authorities have failed to deal with requests correctly.
The Commissioner also makes a final call for action to Ministers to use their powers to designate arm's length organisations, such as local authority trusts and private contractors, which now increasingly provide public services and facilities such as education, health, sports and leisure.
Mr Dunion said: "It is testimony to the effect of FOI that information on important matters such as public sector contracts, hospital acquired infections and school closures has not only been disclosed but proactively published. This success may be undermined if the right to information is lost when service delivery changes. It is nearly ten years since Parliament was told that powers to designate additional bodies such as local authority trusts and private contractors would be used. Disappointingly, successive administrations have failed to make good on this despite opinion polls showing that the public is strongly in favour of such action."
The Commissioner rejects suggestions that FOI is a burden and points out that Scotland is in danger of falling behind other countries, including the rest of the UK, saying: "The view that FOI is an intolerable regulatory burden on authorities turns the clock back 20 years and is not supported by evidence. Alternative measures such as codes of practice and voluntary charters have been shown not to work effectively – often because there is no capacity for a Commissioner to enforce compliance and hear appeals. Designation is not just about extending the reach of FOISA, but safeguarding vital rights to information."
The UK Government has already made its first designation order and is consulting with nearly 400 other bodies.The Commissioner's report recommends that Ministers should proceed with designation of those bodies already consulted in Scotland and a rolling review of designation be instituted to ensure rights to information keep pace with changes in the delivery of public services.
The Special Report sets out a number of other recommendations to clarify and strengthen FOISA, only one of which is being addressed by the Freedom of Information (Amendment)(Scotland) Bill which was announced by Ministers on 16 December 2011.
Mr Dunion said : "I believe my Special Report is particularly timely given the current consultation by the Scottish Government on a Freedom of Information (Amendment)(Scotland) Bill, and as an early contribution to the Government's intended consultation on a Transparency Agenda for Scotland in 2012."