'A rude awakening': Why Scotland must use landmark anniversary to expand Freedom of Information laws

As a journalist, Freedom of Information (FOI) legislation has been an invaluable addition to my day-to-day toolset.

It has allowed me to dig out contracts struck between the Trump Organisation and public bodies that would have otherwise remained hidden from view, report on how children as young as 11 have been detained overnight in police cells, and get hold of the personal suggestions made by King Charles for his charity’s housing development in East Ayrshire.

All of these stories served the public interest and would have been extremely difficult, if not impossible in some instances, to stand up without FOI.

The first day of 2025 marks the 20th anniversary of the landmark Freedom of Information Act (Scotland) Act 2005 coming into force. It is a milestone that gives cause to reflect not only on the successes of the legislation, but the myriad ways in which it can - and should - be improved for the benefit of all in Scotland.

Over the past two decades, a law that initially felt like the preserve of journalists and political staffers has become a widely-used resource. Community groups, campaigners and ordinary members of the public utilise requests to better understand how public bodies operate. And with around 85,000 FOI requests being sent across Scotland every year, it would be easy to presume the system is working perfectly.

It is not. Far from it. For starters, too many public bodies are falling short when it comes to fulfilling their legal obligations when it comes to FOI. In 2023/24, the Scottish Information Commissioner made almost 300 interventions, defined as occurring when an organisation fails to meet the requirements and standards as set out in the legislation and the Scottish ministers’ code of practice.

First Minister John Swinney’s administration has the power to expand freedom of information powers, but whether it has the political will to do is up for debate. Picture: Jane Barlow/PA Wire | Jane Barlow/PA Wire

Two of the most serious ‘level 3’ interventions - designated as serious systemic practice failure - were taken against the Scottish Government, one of which focused on the use of WhatsApp and other informal communication tools.

Another relates to its ongoing performance around FOI issues. Ministers may have made progress on that front, but in 2024, the Government still took as long as 81 days to respond to some requests. For anyone labouring under the misapprehension that Scotland’s devolved government might lead by example, such deficiencies should act as a rude awakening.

The problems with FOI go beyond compliance. One obvious shortcoming is the fact the £600 cost threshold for responding to requests has remained unchanged since the law came into force. The impact of inflation dictates that sum should be nearer to £1,200, at a minimum. But there are other, even deeper faults.

The existing legislation itself is long overdue an update that would bring it up to speed with modern governance, and the changing ways in which services are provided. The scope of the law may have been extended since its introduction so as to encompass the likes of arms-length sporting and cultural trusts affiliated with local authorities, but the pace of reform has been glacial.

Indeed, the heavy toll of the Covid-19 pandemic laid bare the lack of progress and revealed a glaring shortfall in accountability in public life. Health and social care services tasked with ensuring the welfare of some of Scotland’s most vulnerable people could not be adequately scrutinised because the delivery of those services was often carried out by private companies.

Thankfully, Scottish Labour MSP Katy Clark has brought forward a Bill seeking to extend the Act’s provisions to those bodies tasked with delivering public services. Her proposals are well thought-out and address innumerable nuances, such as the potential use of confidentiality clauses to prohibit the disclosure of information shared between contractors and public bodies. It also proposes that charitable and voluntary sector organisations should be subject to FOI provisions, provided they are publicly funded, and their service is of a public nature.

For its part, the Scottish Government previously committed to a consultation on extending FOI laws to private and third-sector social care providers once the National Care Service (Scotland) Bill had been completed. Will it stand by that commitment, despite the latest delay to that flagship legislative goal? We will no doubt see what the new year brings.

Scottish Labour MSP Katy Clark has brought forward a bill seeking to extend the act’s provisions. Picture: Lisa Ferguson | Lisa Ferguson

Some bodies have expressed concern the expansion of FOI is an unwanted pressure at a time when budgets are already tight. However, the direction of travel must be towards greater transparency. And in any case, one obvious way of reducing the administrative and financial burden of an expanded FOI structure is to embrace that very concept at every institutional level.

If public bodies sought to routinely publish a broad range of information on their websites by way of pre-empting many - if not all - of the FOI requests they receive, it would drive up standards, improve efficiencies, and allow members of the public and organisations to make better informed decisions. Most important of all, it would build public trust in the nation’s institutions - something that cannot be taken for granted.

Sadly, all this seems like wishful thinking. Even when duty bound to publish transparency data via other legislation, there remains an inability - or unwillingness - on the part of organisations big and small to throw back the curtain and disclose even the most rudimentary information surrounding their finances and governance. I discovered as much earlier this year when attempting to gather facts and figures from a slew of quangos who, under the Public Services Reform (Scotland) Act, are required to publish their spending on consultants, hospitality, public relations and overseas travel. Out of 114 organisations, 66 had failed to provide the data.

It is in the Government’s power to change this by introducing more robust legislation and a new code of practice that reminds public bodies - and, indeed, ministers and their aides - of what is needed going forward. Otherwise, a fine and noble instrument designed to shine a light on public life in Scotland risks becoming more irrelevant by the day.