IN THE week of publication of the Independent Hillsborough Panel Report, which reflected that the “wound of grief was still sore because so many questions were yet unanswered”, none of us can be left in any doubt about the strength of the public need for rights to information.
The devastating impact of alteration of records is central to the Hillsborough report. This same issue is, right now, the subject of deliberation by MSPs as they consider the new Freedom of Information (Amendment) (Scotland) Bill. If passed, this bill will strengthen my enforcement powers in cases of alteration of records by any public official trying to prevent disclosure under FOI by allowing a more realistic time period for prosecution of this serious criminal offence. Thankfully, these cases are rare, but their impact is potentially severe.
I welcome the objectives of the new bill to strengthen and clarify our FOI legislation. In my evidence last week to the finance committee, I stressed that in most cases I am supportive of the tidying exercise underway. If passed, plans to reduce the time limits where exemptions can be applied and to redraft some of the more opaque provisions will improve our freedom of information regime for the better.
I do, though, have two very significant areas of concern: the urgent need to address the loss of rights due to changes in public service delivery, and the proposed introduction of a wide-ranging new absolute exemption.
Ours is a time of innovation in public service delivery. Since 2005 when our FOI laws came into effect 15,000 households in Scotland have lost FOI rights as a result of the transfer of stock to housing associations. Had these households remained with local authority landlords, they would today have a legal entitlement to request information, and a right of appeal to me if they were unhappy with the outcome. Housing services are just one of many areas where FOI rights have been lost during the move to third party provision. Also since 2005, 44 new PFI/PPP contracts have been established to deliver school, hospital, environment or prison services, and there are now at least 130 arms-length organisations delivering local authority services.
Our own research indicates strong public support for FOI to be extended to bodies delivering these services, yet our legislation is not keeping pace. Despite provision in our legislation for designation of new bodies, successive governments have failed to update the extent of our FOI regime. Only a regular and routine review will resolve this troubling anomaly.
My other concern is the proposal to create a new absolute exemption for any information that relates to communications with Her Majesty, her heir or the second in line to the throne. Fundamentally, my objection is to the introduction of a new absolute exemption to our FOI laws. The proposal would set aside the FOI Act’s “public interest” test, undermining and eroding rights to information and removing the ability to consider the public interest in what can and cannot be disclosed. While the proposal might create consistency with the UK FOI regime it would also create a new inconsistency within Scotland’s FOI regime. Current provisions in FOI law provide strong protection for information (including private information) about the Royal Family and work effectively. In other words, if it ain’t broken, why fix it?
The two most frequent questions I have been asked since I took up office on 1 May are: “Are you enjoying your new job?” and “What do you actually do?” The first is easy – yes, immensely. The second question is more complex. I enforce the provisions of FOI law, ensuring that Scottish citizens’ information rights are respected and protected.
This answer, though, is too dry and in no way encapsulates the richness and variety of what we do in my office. Our work is driven by wider cultural aims. We promote both knowledge of information rights and the most effective way of accessing them; and to Scottish public authorities the spirit of openness, efficient processing of requests and proactive publication. I want access to information not only to be taken for granted by those who ask and those who provide, but for all to appreciate what it gives us.
How I aim to further this over the next five and a half years will begin with the actions set out in my first annual report to be published this week. «
• Rosemary Agnew is the Scottish Information Commissioner