In April the Scottish Government forced through changes in emergency coronavirus legislation allowing public bodies a fivefold extension to the deadlines for responding to FoI requests. This meant that people requesting information could end up waiting up to 10 months.
But the changes are now likely to be opposed at Holyrood on 19 and 20 May by the Conservatives, Labour, Greens and the Liberal Democrats, leaving the SNP government outvoted.
As a result, ministers have told The Ferret that they will agree to shorten the deadlines so that the maximum wait should not be more than three months.
The government’s change of heart follows widespread criticism of its relaxation of FoI rules, including from the former Scottish Information Commissioner, Kevin Dunion. The Ferret previously reported that campaigners had attacked the changes as “dismal” and “draconian”.
The emergency legislation passed on 1 April extended deadlines for public bodies to respond to FoI requests from the public from 20 to 60 working days. In some circumstances the Scottish Government could extend deadlines for bodies other than itself for another 40 working days.
That meant that requesters could have to wait up to five months for an initial response, and then a further five months for the outcome of a review. That is five times longer than under previous FoI law.
The Scottish Information Commissioner’s office pointed out that the changes could set an “international precedent” and damage Scotland’s reputation. No such changes have been introduced at Westminster, and the global Index on Censorship has criticised Scotland and President Bolsonaro’s Brazil as the two countries that had tried to roll back freedom of information the most.
Internal emails released under freedom of information law show that senior officials in the Scottish Government and the commissioner’s office thought on 4 March that extending FoI deadlines was “not necessary at this stage”. But after pressure from health boards ministers subsequently decided that changes were needed and moved “incredibly quickly” to introduce them without “the normal consultative processes”.
The changes scraped through the Scottish Parliament on 1 April after key votes were tied. They only passed because the minority SNP government had the casting vote of the presiding officer, who chairs debates and by convention votes against motions or amendments.
A bid to exempt FoI entirely from the new law was defeated, with the Greens backing ministers. But the Greens now say they will “seek to repeal the emergency FoI rules”.
The government previously argued that delays were needed to help public services during the Covid-19 pandemic. But now it has changed tack, accepting that most of its emergency FoI provisions should be scrapped.
Ministers say that they will introduce an amendment at Holyrood cutting the deadline for initially responding to FoI requests from 60 to 40 working days. This would apply to all public bodies, except the government itself, which would have to respond in 20 working days as under the original law.
Ministers also plan to cut the maximum time allowed for responding to requests for subsequent internal reviews to no more than 20 working days for all authorities. This was the deadline in force before the emergency changes.
Opposition parties want the government to go further and reduce the deadline for initial FoI responses for all public bodies back to the original 20 working days. They might be able to force ministers to do this on 19 and 20 May, but it will depend on what amendments are tabled and how individual MSPs end up voting.
Access to information during Covid-19 crisis needs to be ‘robust’
Moves to reinstate FoI rights have been welcomed by campaigners. “Accountability and scrutiny cannot be casualties of Covid-19,” said Carole Ewart from the Campaign for Freedom of Information in Scotland.
“We are relieved that the law passed in haste will be revisited by MSPs to ensure that the public’s right to access information remains robust during this national health emergency. A reasonable and proportionate approach can be agreed by MSPs which does not undermine FoI rights.”
She added: “It is essential that public authorities continue to invest in staff time and expertise to log and manage information, to proactively publish lots more information in the public interest as well as respond promptly to information requests.”
The Open Knowledge Foundation, which promotes transparency, accused the Scottish Government of harming its international reputation with the changes it made in April. “The decision to restrict people’s right to know in Scotland was a retrograde step,” said the foundation’s chief executive and former Labour MEP, Catherine Stihler.
“It’s encouraging that opposition parties in the Scottish Parliament are championing the Freedom of Information Act and I’m hopeful that ministers’ commitment to seek consensus will ensure these temporary changes are reversed.”
A majority of people across the UK believed that restricting the public’s right to information was an unnecessary emergency measure, Stihler argued. “Public trust will be built by ensuring the continued availability of statistics and data, not by restricting FoI laws.”
The former Scottish Information Commissioner, Kevin Dunion, highlighted a series of problems caused by the government’s delayed deadlines. One was the danger that information could be “considerably out-of- date” by the time it was released.
“At this time of unprecedented action by government which impacts on family life, livelihoods and public services there has to be a recognition that people will want information in as close to real time as possible,” he said in a statement.
Dunion, who is now a professor at Dundee University’s freedom of information centre, pointed out that the International Conference of Information Commissioners supported a “pragmatic approach” and described the public’s right of access to information about coronavirus decisions as “vital.”
He suggested that there was one provision in the existing emergency legislation that could stay. That is the clause enabling the current information commissioner, Daren Fitzhenry, to determine that authorities have not broken the law on response times if the failure was due to Covid-19.
The Conservative MSP, Adam Tomkins, is planning to amend the latest coronavirus bill to remove changes made in April. “All of the changes wrongly enacted to FoI legislation should be reversed, reverting the law back to normal deadlines for requests and reviews,” he told The Ferret.
“The single exception is the provision allowing the Scottish Information Commissioner to rule that a failure to comply with a deadline was not unreasonable under the circumstances. It is also important that any changes we make next week take immediate effect.”
Tomkins also told MSPs: “The way we have left our freedom of information laws after last month’s bill left a sour taste in the mouth and is deeply unsatisfactory.”
The Scottish Green MSP, Andy Wightman, said: “Public bodies may have been overwhelmed at the start of the crisis but that does not mean that they should avoid scrutiny.
“Indeed now, more than ever, scrutiny is vital. Scottish Greens will seek to repeal the emergency FoI rules and return to normal levels of transparency.”
The Labour MSP, Neil Findlay, confirmed that his party will also support attempts to restore FoI laws: “It looks like the Green Party has recognised its mistake in supporting FoI restrictions in the last emergency bill,” he said.
“This is very welcome. I now hope we can repeal the unnecessary legislation the Scottish Government brought in. At this time when life and death decisions are being made we need maximum transparency and accountability.”
The Liberal Democrat MSP, Alex Cole-Hamilton, urged all parties to back repeal of the emergency FoI laws. “The coronavirus crisis requires us to put extraordinary measures in place but when it comes to freedom of information the Scottish Government has gone too far,” he said.
“The opposition of all other parties must now spell the end of it. There is no justification for going further than any other part of the United Kingdom in restricting access to information and slowing the public’s right to know.”
The Scottish Government stressed that its approach had been to seek consensus throughout the crisis and on the emergency coronavirus legislation. “We continue to talk to all parties on a range of relevant topics,” said a spokesperson.
“Accordingly the Scottish Government will bring forward an amendment to the second emergency coronavirus bill designed to ensure public authorities can focus – rightly – on protecting lives and delivering essential services to the people of Scotland, while we maintain the most open and transparent freedom of information regime in the UK.”