Coronavirus Acts: third report to Scottish Parliament

The Campaign for Freedom of Information in Scotland (CFoIS) is pleased to have the opportunity to make a submission to the COVID-19 Committee, focusing on:

• The Scottish Government’s second report on handling of FOI requests, published on 9th October.
• The Scottish Government’s third report to Scottish Parliament, published on 6th October, on how the use of powers over August and September.

The requirement to report on the use of the emergency powers was introduced in the first Coronavirus Act, and the Scottish Ministers’ FOI reporting requirement was introduced by paragraph 12 of schedule 4 of the second. The reports are produced separately and CFoIS welcomes their publication.

The focus of our submission is on access to rights and the fulfilment of duties under the Freedom of Information (Scotland) Act 2002 (FoISA) during the health emergency and how measures to improve and extend rights have been ‘paused’ by the Scottish Government with consequent, negative impacts. CFoIS believes that people’s enforceable right to access information is even more important during a health pandemic to empower people, improve government and to counter fake news. The UN has repeatedly highlighted the importance of rights, transparency, accountability and a vibrant civil society: ‘Together, we must create more robust systems for accountability, transparency and integrity without delay. We must hold leaders to account. Businesspeople must act responsibly. A vibrant civic space and open access to information are essential.’

In this submission, CFoIS draws on the findings of three reports from the Scottish Information Commissioner (SIC):

• His second progress report on intervention to improve the Scottish Government’s FOI practice and performance which has been ongoing since 2017. The progress report considers the Scottish Government’s actions and performance between 1st April 2019 and 31st May 2020.
• His Annual report and Accounts for 2019/2020 ‘Freedom of information in a changing environment’.
• His quarterly statistical report on FoISA use drawn from data provided by over 10,000 duty bearers.

CFoIS analysis of the reports and given the business of Parliament and Government continues across a huge range of matters, we have concluded that updating and strengthening FoI rights and duties needs to be part of the current business of Government and should not be postponed until the pandemic is over, whenever that is. CFoIS makes five recommendations to the COVID-19 Committee:

1. Recommend action on the recent post legislative scrutiny of FoISA so that Parliament initiates and leads the reform rather than the Scottish Government.
2. Recommend that the Scottish Government extend FoISA to new bodies by drafting a section 5 Order and consulting on it over the next three months, to cover those bodies delivering services of a public nature e.g. private care homes.
3. Seek assurances from the Scottish Government on its ability and actions to re-engage and comply with, the agreed ‘Action Plan’ on FoI Improvement with the SIC. The necessity for improvement has been ongoing since 2017.
4. Secure an explanation as the interplay of FoI law and human rights strategy in Scotland so that matters are understood by Ministers as interconnected and indivisible.
5. Scrutinise the Scottish Government’s preparations and timeframe for the roll out of The Council of Europe’s ‘Tromso Convention’, the first binding international legal instrument to recognise a general right of access to official documents held by public authorities.

Addressing the Committee’s Specific Questions
1. Do you think the Scottish Government needs these emergency powers?

CFoIS response To answer this question we will make a series of points.

We invite the Committee to scrutinise the ongoing impact of the temporary change in FoISA, the significant legacy issues and the need to strengthen FoI rights despite the health emergency. For example we note that although the Scottish Government must respond to requests for information promptly, and in any event by not later than the 20th working day after it receives the request, by 26th September 2020 there was a backlog of 93 requests i.e. the legal timeframe had not been complied with. It is not possible to ascertain the subject matter or the urgency of the requestor in obtaining and using the information. Backlogs are being created in other designated bodies too and some of the reasons will be completely understandable such as difficulty in accessing documents. However deliberate steps are needed to comply with FoISA in the ‘new normal’.

CFoIS fundamentally disagrees with the Scottish Government’s view, shared by some MSPs, that staff meeting FoISA obligations is not a ‘coronavirus-critical role’: ‘A range of FoI work has been ‘paused in consequence of the significant redeployment of staff from the FOI Unit to coronavirus-critical roles.’ Therefore the Scottish Government appears to maintain the same approach to FoI rights as that which prompted it to amend FoISA on 1st April which included extending response times from 20 to 60 days:

‘As noted in paragraph 10, approximately half of the staff of the FOI Unit has been redeployed to coronavirus-critical roles. Some have been redeployed on a fulltime basis, including two of our three publication officers. Those remaining in the Unit have been refocused on providing core services such as triaging and allocating new requests, and on providing essential support to staff across the organisation so that FOI requests and reviews to continue to be handled promptly and to a high standard.’

We believe complying with FoISA is part of the Scottish Government’s response to the global pandemic. It should not be possible to frustrate the will of Parliament by reducing staffing which effectively prevents compliance with FoISA. Reducing staff creates delay in responses, carrying out internal reviews and potentially responding promptly as the SIC considers appeals. The enforceable right of the public to access information is critical to holding the Government to account.

Whilst the Scottish Government uses the right language, its focus seems to be on it deciding the type and pace of information published:

"We remain committed to ensuring transparency in the implementation of, and reporting on, the legislation, but we equally continue to be cognisant of the important balance to be struck in the processes for obtaining information to support openness and transparency, with the need to avoid undue pressures to provide information on those at the frontline of the coronavirus response.’

The Scottish Government acknowledges other designated bodies are adopting a similar approach: ‘Therefore, Scottish public authorities may continue to experience significant disruption that may impact on their ability to respond to FOI requests for some time, so the power at paragraph 6, conferring discretion on the Commissioner, remains necessary’.

CFoIS believes there needs to be pushback on this approach given the importance of transparency in managing the response to the pandemic, improving public services and reassuring the public in the ‘new normal’. The SIC’s evaluation of the Scottish Government’s performance to date is particularly relevant:

‘During April and May 2020, the Scottish Government's FOI performance fell dramatically as it diverted resources in response to the Covid-19 pandemic. While some impact may be expected, the extent and speed of the decline raises significant concerns about the sustainability of the Scottish Government's FOI improvement work. The Commissioner urges the Scottish Government to direct immediate attentions towards restoring its FOI function.’ CFoIS agrees with his recommendations to direct ‘focus towards the following areas initially’:

• Restore trained FOI staff to key FOI roles
• Implement urgent improvements to ensure FOI record-keeping is robust, appropriate and effective
• Ensure that appropriate training, development and support measures are in place for staff involved in the handling of requests
• Restore resource within the FOI Unit to ensure that the emerging benefits from new triage, advice and training responsibilities are protected.
• He also recommends that Ministers consider whether internal Key Performance Indicators can be introduced in relation to the time taken to respond to both routine and sensitive / exceptionally complex cases.
• The Commissioner notes that failing to take action at this time will send a dangerous message to staff and the wider public about the perceived importance of openness, transparency and accountability through FOI, at a time when the public benefit from these characteristics has never been clearer.

The big question is why did the Scottish Government decide not to follow the ‘Improvement Action Plan’, agreed with the SIC, during our health pandemic.

2. Where the powers have been used, was this clearly communicated?

CFoIS Response Temporary change in powers and rights created confusion with rights holders and duty bearers. The political and media furore around the legal changes did generate publicity which raised awareness with the public. Data from the SIC for 1st April to 30th June 2020 is also instructive. As CFoIS predicted, FOI activity reduced during this period, with 12,578 requests reported compared to 19,844 during the previous quarter, and 20,108 in the same quarter last year. It appears that requestors were less active during the Covid-19 lockdown and we were convinced that most people would put a brake on non-urgent request as the Scottish Government delivered repeated clear appeals not to put pressure on public services. The co-operation of the public is a constant theme in managing Scotland’s response to the pandemic.

CFoIS is pleased to note that the SIC has delivered decisions which uphold rights and duties and which communicate a message to duty bearers on compliance. For example in a case of NHS Highland, the Commissioner found that, while the request was made during the time where FOI timescales were extended, the authority had nevertheless failed to respond ‘promptly’ so the authority had breached section 21(1) of FOISA.

CFoIS welcomes Paragraph 12 of schedule 4 to the second Coronavirus Act which requires, while the temporary modifications to FOISA made by the first Act are in force, Scottish Ministers to report to the Scottish Parliament on certain aspects of their responses to requests for information under FOISA. It creates opportunities like this for submissions from civil society and scrutiny of Ministers.

3. Where the powers have been used, what impact did these changes to the law have on you, or your sector?

CFoIS Response Records management systems, physical access to buildings and staffing levels in FoI departments were all initially impacted. Activity on FoI rights provided to the SIC by duty bearers covering the period between 1 April and 30 June 2020 suggest that:
• 67% of FOI responses, and 71% of review responses, were sent within twenty working days during the period when extended timescales were in force.
• 27% of FOI responses, and 16% of review responses, utilised the extended timescale.
• 6% of FOI requests, and 13% of review responses, were not responded to within the extended timescale of 60 working days.
• Where responses were late, the reallocation of resources due to Covid-19 was the most common reason given.

There needs to be a change in culture and practice in some designated authorities to adapt to the ‘new normal’ and ensure FoI requests are dealt with promptly and within the 20 working days for initial requests to ensure the rights based system of openness and accountability is robust during the pandemic.

4. Could other measures have been used to better support you or your sector to respond to the challenges posed by the pandemic?

CFoIS Response Yes, as a civil organisation, CFoIS has a specific role to play as a human rights defender which has been recognised as essential by the UN . CFoIS offers this commentary so that government delivers as well as builds back better from the COVID-19 pandemic. CFoIS was not able to access funding to develop and sustain its scrutiny work on ‘COVID-19 and FoI’ so that limited the impact we have been able to make. Our fundraising work continues.

5. Any other comments you wish to make?

CFoIS Response There is a danger that the focus is solely on complying with FoISA rather than progressing and remedying the concerns of the Scottish Parliament that FoI rights needs to be strengthened to be effective. On 21st June 2017 the Scottish Parliament voted unanimously for post legislative scrutiny of FoISA and that report has been published but nothing has happened. During the pandemic it is even more vital that FoI reform is taken forward so that there is openness and transparency in the Government’s performance and in all those delivering services of a public nature. The pandemic has heightened awareness of bodies already identified as being eligible for designation under FoISA, and it is essential that the chat is replaced with action to extend FoISA to bodies such as private care homes.

FoI is a human rights issue and should have been understood as such from the outset by the Scottish Government and by designated bodies/duty bearers. The Human Rights Act 1998 and the Scotland Act 1998 give domestic effect to the ECHR. The right to receive and impart information is contained in Article 10 of the ECHR, Article 19 of the International Covenant on Civil and Political Rights (ICCPR), Article 21 of the UN Convention on the Rights of Persons with Disabilities (UNCPRD) and Article 13 of the UN Convention on the Rights of the Child (UNCRC). MSPs have this right too and it enables them, and the pubic, to give effect to their right to take part in the conduct of public affairs as set out in Article 25(a) of the ICCPR. FoISA enables the equal enjoyment of these rights in Scotland.

The public interest in COVID-19 and the government’s response to it fits with how Article 10 of the ECHR has been ruled to give the right to information in order to form an opinion. Case law establishes that Article 10 applies when requests for information are rooted in the public interest, established by four tests: the purpose of the information request; the nature of the information sought; the particular role of the seeker of the information in “receiving and imparting” it to the public; and whether the information was ready and available. Therefore delivering on FoISA is part of the human rights work of the Scottish Government and those public authorities that are delivering public services and services of a public nature as defined by section 6 of the Human Rights Act 1998. FoI is essential in ensuring scrutiny and accountability of the Government’s COVID-19 response and to learn and plan better which protect all our rights such as the ‘right to life’ under Article 2 of the ECHR.

There are mixed messages from the Scottish Government which reiterates its support for ‘transparency’ and delivering ‘human rights’ but is limiting the right to access information by its decision making on staffing levels and focus away from FoI reform. We ask the COVID-19 Committee to obtain clarity and consistency from Scottish Government Ministers on protecting the public’s right to know during the health pandemic.

About CFoIS
The Campaign for Freedom of Information in Scotland (CFoIS) was established in
1984 to improve public access to official information, to secure legal right to access information and to enforce that right. The initiative came from the Scottish Consumer Council. We believe in the right of people to find out about how they are governed and how their services are delivered.