Scotland’s FoI powers ‘falling behind in UK’

LANDMARK powers that hold public bodies to account are being progressively weakened in Scotland and are now falling behind the rest of the UK, according to the outgoing commissioner for Freedom of Information legislation.

The Scottish Information Commissioner, Kevin Dunion, said a combination of government, councils and health boards transferring services to trusts and private bodies, along with ministers’ reluctance to widen the scope of the FOI act is making people less able to access vital data about their homes, healthcare or education.

In an interview prior to the release of his last annual report this week, Dunion has also called for stronger regulatory powers for his successor, including scrapping the rule that the criminal offence of destroying information which should be available under FOI must be investigated within six months of the incident happening.

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Although both Holyrood and Westminster are considering extending the powers of the Freedom of Information Act, Scottish ministers have said that they will not do so until the “economic situation has improved.”

Dunion, who leaves the post after nine years on 23 February, insisted the public now has less access to key information than it had when the act first came into force in 2002. He said: “We’re losing existing rights where local authorities are out-sourcing, not only to private companies, but to trusts they have set up. People lose rights to information about the functions of these trusts.

“It’s not inevitable. Glasgow set up all arms-length bodies as public bodies and others should follow.”

He cited public-private partnerships which maintain school buildings, private firms that clean hospitals, and private prisons as areas where the public is losing access to information.

“What we lose out on is the fine detail, the state of maintenance at a particular school, or the cleaning standards in a hospital. You want to know exactly what is happening in ward 7, or classroom 7a, because it affects your child or your relative in hospital,” Dunion said.

“That is what exposed levels of infection at the Vale of Leven Hospital [in Dunbartonshire]. It came about because relatives demanded to know why their mother-in-law was dying or getting infected. That’s what we’re losing.”

Dunion also called for more powers to tackle public bodies that do not comply with FOI laws.

He said: “If an authority destroys, defaces, or alters information that should be available under FOI, that is a serious offence and can lead to a criminal conviction or a fine. But prosecution would have to take place within six months of the offence happening. Often that is not possible.”

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The former chief executive of Friends of the Earth Scotland has clashed with the Scottish Government during his time as commissioner.

Last year, the Scottish Government went to the Court of Session twice to try and stop an internal memo, which set out the multi-million-pound cost of replacing the council tax with a local income tax, being released, before backing down.

Overall, Dunion says, the law has worked well in Scotland: “Bodies do respect the law, do comply with requests, and knowledge of the act is at an all-time high. Very few of my decisions are challenged in court.”

A Scottish Government spokesman said: “Freedom of information is an essential part of open democratic government and responsive public services, which is why we are committed to adjusting the regime where it is sensible and necessary to do so.

“However, a decision on extension has been deferred until parliament has considered the proposed Amendment Bill and until the economic situation has improved.”