Freedom of Information – Threats and Excuses

Here is the recently published article I wrote for the new edition of the Scottish Left Review, on behalf of the Campaign for Freedom of Information in Scotland. I've tried to add helpful links into the text. A direct link to the article in the SLR is here.

Current UK Freedom of Information (FoI) law is under threat, and here in Scotland a long-promised consultation on extending the law plans to ignore demands to restore accountability to public services.

At UK level there have been a series of direct threats to FoI from both government ministers and official practices. In May the new Conservative government announced it planned to take powers to defy the Supreme Court and enable itself to veto a decision of a court or tribunal. Arising out of the government’s red face over its inability to hide Prince Charles’ letters - that the Supreme Court said should be released, a government lobby briefing said they were considering moves  ‘to strengthen the ability of the government to veto the publication of documents’. Campaigners have reacted with understandable horror to Ministers attempt to put themselves above the law, Maurice Frankel of the Campaign for Freedom of Information (CFoI) saying – ‘That is too much power for Ministers to have.”

One Minister seems to want to go further. Justice Minister, Michael Gove, responding to questions in Parliament, has said that Government planned to revisit the FoI Act to ensure that civil servants’ advice to ministers was protected. He also seems to have started to try and pose ’open data’ against Freedom of Information - an artificial distinction  long feared by campaigners.

Further concern is being caused by the apparent use of routine email deletions in the civil service and other public bodies that may be deleting information that should be saved. A Commission has now been announced on FoI at UK level. See here for the CFoI response.

In Scotland meanwhile, while there is concern about similar email deletion policies, the main threat to accountable public service coverage has ironically, been caused by Scottish Government consultation about extending coverage. Billed as the answer to persistent calls to extend FoI coverage to the multitude of arms length, private and third sector bodies now delivering our services, the Consultation on further extension of coverage of the Freedom of Information (Scotland) Act 2002 to more organisations not only proposes to add very few bodies (private prisons, providers of secure accommodation for children, grant-aided schools and independent special schools) to those covered, but it also contains a series of ‘arguments’ against extending FoI to cover Registered Social Landlords(RSLs). This special pleading is clearly a government response to a tenant’s petition that was recently considered by the Parliament’s Petitions Committee.

Most of these so-called arguments are not new - indeed anyone who has read the lobbying material used by the Scottish Federation of Housing Associations (which, interestingly, does not appear to be available on their website!) to justify continuing exclusion of Housing Associations (HAs), will have seen them – but the irony is that many of them are countered by arguments in the same document for the bodies that are proposed for coverage!

For example, both grant-aided and independent special schools are already under considerable regulation according to the consultation paper, implying that the extra duty of FoI will be not onerous– however similar existing regulation is given as a reason NOT to extend coverage to HAs!
Similarly one of the special pleadings on behalf of RSLs – that they carry out other (non-public) functions - is comprehensively blown out of the water by the consultation paper’s own admission that the only impact would be on “the information they hold concerning their functions of a public nature.”

The consultation document was one that promised to ‘swallow a camel’, instead it appears to be ‘straining at a gnat’. While the small number of bodies that are listed are in themselves, welcome. The list  in the first extension consultation paper of 2008 included private contractors providing schools, hospitals, trunk roads and prison escort services as well as private prisons. It is disappointing that the overwhelming public support expressed at that time, is continuing to be frustrated by government resistance.

A previous extension (the first ever) added arms length trusts providing leisure and cultural services to the list of bodies covered. Recent research by Strathclyde University PhD researcher, Calum Liddle has shown that there are worrying loopholes in that coverage – especially in the way that the law is framed to define which trusts get covered. Suggestions by both the Scottish Information Commissioner (in Commissioner's Special Report: FOI 10 Years On - are the right organisations covered? )  and the Campaign for Freedom of Information in Scotland for a better approach to extending coverage, have only been tangentially addressed in this paper.

It is also worrying that an artificial distinction is being suggested in our public services. The paper refers to education as an example of a ‘core’ public service. No agreed definition exists of what services are ‘core’ and what are not. Indeed such a distinction threatens to create a whole new unwelcome debate dividing our services, and possibly leave some without transparency or accountability – or indeed without other protection. Even if it were to be adopted as suggested here – it begs the question where is the extension covering PFI contractors providing schools?

On the positive side, the adoption of  ‘case-based’ extensions, rather than specifically naming private contractors or third sector bodies might be a small step in the right direction. As long as definitions of bodies are not too tightly drawn, it is hoped that this means that changes to the contractors/other bodies providing these services would not require future legislation. The CFoI in Scotland has long argued that this principle should apply across the board and that FOI laws should apply to the public service – whoever provides it. The Scottish Information Commissioner has advocated a similar approach.

The consultation paper is available here - http://www.gov.scot/Publications/2015/06/5112/downloads - and is open for comment until the 4 September.  During the summer the Campaign for Freedom of Information in Scotland will be co-ordinating a campaign to try to ensure that the original aim of Freedom of Information; that all public services are open to Freedom of Information requests is restored to those who have been excluded from coverage.