Is Scotland's Freedom of Information law fit for a data-rich age?

Marc Ellison
Image caption BBC journalist Marc Ellison has filed many hundreds of Freedom of Information requests

A record number of Freedom of Information Requests were made last year, but is this 17-year-old law - allowing people to interrogate Scotland's public bodies - working well enough?

Click onto a news website or pick up a newspaper and you'll see headlines about children being stopped and searched by police, the millions spent on locum doctors or the councils giving convicted drivers taxi licences.

They are all very different stories, but they do have one thing in common - they were made possible by the Freedom of Information (Scotland) Act (FOI or FOISA).

This piece of 2002 legislation allows anyone the right to access information held by public bodies in Scotland - be it the government, local authorities, the NHS, the police and universities and colleges.

Despite the lofty aims behind the act, in reality, making these requests is fraught with challenges.

The release of the Information Commissioner's annual report underlines one of them.

More than a quarter of the appeals to this regulatory watchdog are related to an authority's failure to respond within the 20 day window.

At a time of ever-increasing council funding cuts, and a rise in the number of requests being submitted, this is hardly a surprise.

And just last year the commissioner publicly criticised the Scottish government for adding an "additional layer of clearance" to the requests from journalists and political researchers.

As a seasoned "FOI'er" that is just one of my many frustrations with the process.

Over the last six years I've filed thousands of FOI requests and perhaps the biggest barrier is the varied attitudes with which different authorities handle them.

Some, predictably, will point to certain exemptions outlined in the act - exemptions which are particularly nebulous.

The most commonly cited ones relate to;

  • commercial sensitivities
  • prejudice to the conduct of public affairs
  • and national security.

In fact this tactic has become so common that in FOI workshops I run I suggest that the requester makes a point of saying they are aware exemptions exist and state why they are not applicable in their case.

The 20 day wait

Another key issue with many of Scotland's public authorities is the lack of communication.

I have lost count of the number times I have waited for 20 days only to be told a request would incur a fee, or that there are questions about the wording.

All of this means either submitting a new application, or asking for a review, which takes an additional 20 days.

And from my experience, the authority's review yields the same outcome as the original request.

Is this a time-wasting and patience-testing exercise, or a necessary bureaucratic step?

My top tips on making FOI requests

  1. Do your research - you may not even need to wait 20 days for the information you're after. So scour the authority's website, their FOI disclosure log if they have one, or other FOI responses on the What Do They Know website
  2. Narrow the scope of your request - if you are too vague you may end up having to pay for the information you're after. An FOI is free provided the effort (people hours and reproduction costs) doesn't amount to more than £600.
  3. FOI, FOISA, or EIR? Acquaint yourself with the different freedom of information legislation. The UK-wide FOI Act covers bodies such as the Home Office, FOISA is for Scottish bodies like SEPA and councils, and EIR is related to environment-specific requests. It's not uncommon for an authority to deny your FOISA request on the grounds it should have been submitted as an EIR request.
  4. Keep a log of all your requests - the majority of public authorities won't get you your response within the 20-day window so it's vital to note when each one is due back. This way you can immediately chase the authority - or perhaps better yet - ask for a review on the basis that legislative timescales have not been met.
  5. Keep copies of all email correspondence - you won't be able to file an appeal without these. And do make sure to sign off all correspondence with your full name otherwise the appeal will get refused and you've just wasted at least two months. (Trust me - I've learned this one the hard way).

Is it time to start charging for all requests?

The FOI system has a feel of the 21st century, but the principle of openness has been around for a long time. Take Sweden - a country whose 1766 Freedom of the Press Act is widely considered the oldest piece of freedom of information legislation in the world.

Citizens there can file requests anonymously and in 2009 a new website called Govtrack was launched to allow people to further interrogate government committee documents.

Image copyright EPA
Image caption Is getting information out of the government in Canada an easy one?

As well as making FOI requests to public authorities in the UK, I have experience of navigating the Canadian public information system.

There, I regularly received proactive calls suggesting I re-word or narrow the scope of my request before the window closed.

Also, the review stage in Canada doesn't exist and requestors can immediately appeal a decision to the watchdog.

But there is another key difference and it's to do with money.

Each Canadian FOI requires a $5 fee.

Could this be a move Scotland adopts? A charge might help filter out vexatious requests and the fee could also be used to subsidise the costs of cash-strapped authorities.

Widening the scope of FOI

And could there be other changes?

Rather than naming and shaming authorities into dealing with FOI requests on time, bringing in financial penalties could be an option.

I'd personally welcome more bodies coming under the auspices of the legislation such as housing associations, charities, and third-party contractors.

The existence of freedom of information legislation is a boon to journalists and concerned citizens alike - but improving its efficacy will be key to keeping it relevant in our data-rich age.