FOI laws ‘have failed to keep pace with public services’

A Holyrood inquiry into freedom of information (FOI) laws has found they have failed to keep pace with public services.

The Public Audit and Post-legislative Scrutiny Committee published a report on Tuesday following an investigation into the Freedom of Information (Scotland) Act (FOISA).

In the report – which was agreed before the length of time for information to be released was increased from 20 to 60 working days in the Coronavirus (Scotland) Act – members of the committee say the divide between the public and private sector has become blurred.

As a result, private firms who are in receipt of public funds or providing public services are not covered by the act, which allows members of the public, journalists and politicians to apply for information.

The committee recommended the Scottish Government looks at introducing a “gateway clause” to automatically include companies and groups receiving public money or providing a service within the remit of the act, allowing information on the spending of the funds and the provision of services to be accessed by the public.

The report also said the committee is interested in a “factors-based approach”, which would include the expansion of the law subject to testing.

This could be based on “the extent to which an organisation is delivering (or supporting the delivery of) a public function, the degree of public interest in relation to the function/service being delivered and the cost to the public purse in delivering the function or service”.

During an evidence session before the inquiry in December, parliamentary business minister Graeme Dey said the functions of private companies relating to public spending should be covered “in principle” but cautioned MSPs on expanding too far.

He told the committee: “Clearly, the activities that are publicly funded absolutely should but we have to be careful to ensure that FOISA captures only the public service element of their work and not anything else that leads perhaps to their competitors gaining a commercial advantage in an area of non-public business.”

The report also said the act should be amended to ensure public bodies and private contractors are unable to rely on confidentiality agreements to keep information about spending or services out of the public domain.

The committee also pushed for the definition of information within the act to be amended to include private WhatsApp conversations, email accounts and texts to ensure there was no way information could be withheld.

Committee convener Anas Sarwar said: “Legislation must be robust, clear and enforceable.

“We heard in our evidence sessions suggestions of a shift in recent years in the level of information being routinely recorded in connection with official public business.

“We are absolutely clear that there should be no deliberate attempt to evade FOISA.

“Consideration should also be given to amending the legislation to make explicit that tools such as WhatsApp, texts and ministerial private email accounts are covered by FOISA.”