It is time to bring FOI into the modern age and properly empower the public

Katy Clark

Just over 20 years ago, freedom of information (FOI) was formally enshrined in law both in the Scottish parliament and in the UK parliament. Long regarded as a substantive human right, the Freedom of Information Act 2000 provided public access to information held by public authorities, compelling bodies to publish certain information and enabling members of the public to request it. It was one of Labour’s great achievements in government that remains – and the principles that underpin it should be held by all of us who seek to extend democracy, transparency and accountability to every sphere of our politics.

Tony Benn famously said those in positions of power should always be asked what precise powers they have, where they got them from, in whose interests they use them, to whom they are accountable and how to get rid of them. His argument was that if you couldn’t adequately answer all five of these questions, you don’t live in a democracy. Whilst he was primarily talking about individuals who wield political, social and economic power in various guises, these questions also apply to wider public institutions that are meant to serve us.

I would certainly contend that FOI in the present day fails to sufficiently answer some of those questions, and that it’s out of date and needs reform. That is why, last week, I published the consultation for my first member’s bill to the Scottish parliament with the aim of reforming FOI law and making it fit for the present day.

Institutions naturally evolve over time, whether that be for cultural reasons, to meet new challenges or because of political directives. But what is concerning is the extent to which public bodies find ways to evade accountability and transparency.

Figures show that 14% of FOI responses by Scottish bodies were issued after the 20-day statutory deadline, for example. In May, Daren Fitzhenry – Scotland’s information commissioner – reported that there were significant failures in record keeping and complying with procedures as well as “systemic concerns” when it comes to monitoring requests.

The issue is not just lateness and incompetence, however, but an outright failure to apply the existing law or even to act within the spirit of the law. Disclosure of information is supposed to be the default, but too often public authorities kick the can down the road or spuriously select confidentiality clauses to avoid scrutiny.

My bill would strengthen the enforceable right of access to information, provide a legal duty for proactive publication and improve enforcement across the board. It proposes a new statutory role of ‘freedom of information officer’ in every designated body so that staff have the expertise to comply, clearly understand the process and deal with requests consistently. The major change I propose is also one that could absolutely be replicated at a UK level.

In many sectors, taxpayer funded services are now delivered by private and third sector organisations. In 2018, Audit Scotland reported that councils were using an estimated 130 arms-length external organisations, which have an annual spend of more than £1.3bn. The National Audit Office carried out a similar analysis at a UK level in 2021, finding there are 295 arm’s length bodies. The top ten of these alone account for some £244.9bn of expenditure.

As a socialist, I believe it is wrong that any public service provider is siphoning off profits for shareholders. But what’s most alarming is that these unaccountable and often opaquely owned firms, which receive public money to make critical decisions that affect us all, receive next to no scrutiny whatsoever.

Some sectors are particularly affected by this phenomenon – social care, for example. And this has been particularly apparent during the Covid pandemic, with thousands tragically dying in care homes. In every part of the UK, there are grieving families who have been entirely unable to illicit key information because so many homes are in the private sector and entirely exempt from FOI. In a great number of these cases, these care firms are owned offshore in tax havens and profiteering on a rampant scale.

The Scottish government has had ample opportunity to come forward with its own reforms despite parliamentary committees making recommendations. That’s why I’ve sought to drive this issue onto the agenda with the assistance of the Campaign for Freedom of Information in Scotland and the support of the Scottish TUC.

My bill covers issues such as extending coverage to public contractors and to all who provide public services or “services of a public nature”, adjusting rules around time limits for responses and making all listed exemptions subject to a public interest test. Many of these demands are also being made at a UK level, and I would like to see Labour at the forefront of this agenda – just as it was two decades ago.

The consultation for the bill – the freedom of information reform (Scotland) bill – was published last week and I would encourage everyone eligible to participate. It is time to bring FOI into the modern age and embed the culture of openness, transparency, accountability, and empowerment that the public deserve and demand.

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