The fight for true freedom of information in Scotland - who's in?

While he “quaked at the imbecility” of it, as he put it in his memoirs, the evidence strongly suggests that major authorities like the Scottish Government and NHS Fife, might put it rather more strongly after receiving excoriating rebukes from Scottish Information Commissioner David Hamilton recently.

The health authority was described as “petulant” for issuing a tetchy statement after being ordered to reveal legal costs associated with fighting the Sandie Peggie employment tribunal, while the Scottish Government “misrepresented the facts" when challenging an order to release details of the investigation into ex-First Minister Nicola Sturgeon. And the Government will still be burning a hole in the public purse in the Court of Session on January 29 .

The cases are two of the most high profile examples of officialdom not just failing to release information on request, but repeatedly defying the Information Commissioner’s orders, both at considerable cost to the taxpayer. And while hundreds of FoI requests are regularly honoured every week, many are not and often on the most spurious grounds. And even if officers and civil servants comply, delaying tactics are commonplace to put publication beyond an awkward meeting, hearing, or even an election.

It is for these reasons that FoI campaigners have long felt that the law needed updating, not ripped up but reviewed to iron out problems, and to bring it up to date with an information landscape which bears no resemblance to the technology landscape of over two decades ago.

When the original Freedom of Information (Scotland) Bill was published in September 2001, Google was only three years old and hadn’t grown into a verb , and it would be another three years before a geek called Zuckerberg launched something called TheFacebook. AI was just part of a nursery rhyme about farm animals.

It took two years to enact the Bill, and a further two for it to come into force, so with those developments it was arguably out of date from the outset, but one of its terms allowed for Scottish ministers to revise the FoI Code of Practice which, to the surprise of absolutely no-one, has never happened. Why would it? There is no incentive for governments to allow the lid to be lifted even wider on their inner workings, but various inquiries, most notably the Covid revelations, have shown just how far the current framework is off the pace when politicians have long fled to the relative safety of WhatsApp and private email accounts, and prising out the records requires the full force of a judicial probe.

It has therefore fallen to an individual MSP, Labour’s Katy Clark, to table member’s legislation to change the law, with the FoI (Scotland) Reform Bill, which does away with many of the exemptions which keep information confidential, introduces a new system to include private companies providing public services, and establishes a new duty to publish. It would also strengthen the Scottish Information Commissioner’s enforcement powers.

Commissioners past and present are understandably keen on the Bill, and at a recent meeting of Holyrood’s Standards Committee, which is currently scrutinising the legislation, the first incumbent, Kevin Dunion, explained how the legislation has not kept up with either the breakneck rate of technological change – the 20-day response period was conceived when such requests were expected to be made by letter, he told the committee – or the increased outsourcing of services to third party organisation, particularly housing associations. “We anticipated that,” he told MSPs. “Indeed, the minister at the time said that it would be the next thing on the agenda. However, it has been the next thing on the agenda for the past 20 years.”

David Hamilton went in harder. “It is pretty preposterous that the Government said in its submission that it has not been going slowly. If this is not slow, I do not know what slow is, because progress is glacial. There is a consultation about the care sector that started six years ago—the consultation about the consultation about the consultation has just finished. It gets ridiculous, and it really is not good enough,” he said.

“In the freedom of information world, we use the line, “Information delayed is information denied.” That is happening on an organisational scale, across the whole regime,” he added.

Maybe that’s how the authorities would like to keep it. As a member’s bill, it does not have the force of government behind it, but other members’ bills, notably Liz Smith’s Schools Residential Outdoor Education Bill and Maurice Golden’s Dog Theft Bill, made it onto the statute books this month with overwhelming cross-party support for both. Perhaps guaranteeing every school pupil access to a week of residential outdoor education − a law based on the George Watson’s College “projects” programme − and hefty punishments for dog-nappers floated more boats, but the FoI Reform Bill arguably has broader and far-reaching implications.

But the Standards Committee’s last evidence session was only at the end of November, and with other business to deal with, notably the investigation into Ash Regan’s social media activities, it’s doubtful its report will be completed before March to allow the bill to proceed to the next stage, never mind completing the full passage to enactment.

Of course as the bill is not a matter of left-right ideology, it should not be an insurmountable difficulty for all parties to make passing the bill an election manifesto pledge. So let’s see who is really committed to open and transparent government.