Out-Law / Your Daily Need-To-Know

FOI regime needs 're-think', says Scottish watchdog

Out-Law News | 02 May 2017 | 4:21 pm | 2 min. read

The freedom of information (FOI) regime needs a "re-think", Scotland's outgoing information commissioner has said.

In a report laid before the Scottish Parliament prior to leaving office to take up her new role as Scottish Public Services Ombudsman on 1 May, Rosemary Agnew said public authorities are currently getting bogged down in handling an increasing number of requests for information.

The authorities also adopt a tick-box approach to compliance with their duty to proactively publish certain information, "rather than an opportunity to use the framework to promote and enable the dissemination of information", she said.

Agnew suggested a "simpler framework to both administer and use" could be established to help "engender the fundamental cultural shift that is needed to move Scotland that stellar step from publication because it is something we have to do, to openness and transparency because that is how we want to be".

A new FOI regime could place the emphasis on "active dissemination" but include "the right to information as a back-stop", she said.

"FOI law as formulated has the consequence of diverting resources from the development of value adding dissemination of information, to trying to maintain statutory compliance with answering individual requests," Agnew said.

"While the intention has undoubtedly been a presumption of disclosure from the outset, the reality of its application is that there is greater emphasis on exemptions and provisions that prevent disclosure than on publication," she said.  "One of the consequences of this is that effort and resources (understandably) go into meeting statutory duties to respond to requests (and have a publication scheme) at the expense of being able to invest in dissemination of information as a way of doing business. Put another way, [public authorities] are so busy responding to requests to meet statutory duties, they often don’t have the time or resource to develop a more open approach through publication."

In her report, Agnew highlighted the rising number of requests for information that public authorities in Scotland are receiving under the FOI regime and environmental information regulations. It is projected that public authorities in Scotland will record receiving more than 70,000 such requests for the year 2016/17, up from 68,153 requests for 2015/16. In 2013/14 there were 60,496 recorded requests for information.

A new "transparency framework" could be successful if it enables "easy access to information, quickly", provides "a regulatory mechanism to ensure access can be enforced equally in relation to active transparency (i.e. publication) and the right to information", and recognises that "information (and data) are increasingly generated and held electronically", Agnew said.

Agnew acknowledged in her report that public authorities face a challenge in becoming more open and transparent. She cited obligations to data privacy that the bodies face. However, she said that provisions on 'privacy by design' contained in the new EU General Data Protection Regulation (GDPR) can help promote a "transparency by design" approach to access to information. Such an approach "protects privacy of personal data and has built-in access to information both at a personal and public level", she said.

"We will be a truly transparent society when the information we generate and hold is accessible without people having to ask for it, and where the need to enforce is rare," Agnew said.