Access to information rights: consultation analysis

5. Improving proactive publication – promoting openness as 'business as usual' in a digital age

146. Sections 23 and 24 of FOISA contain provisions to require and promote the proactive publication of information by Scottish public authorities. This section of the consultation sought respondents' views on the effectiveness of the regime in this regard, and how approaches to proactive publication might be improved.

147. In particular, views were sought on the proposal – originally put forward by the Scottish Information Commissioner – to replace the existing statutory requirement to maintain a publication scheme with a simple statutory duty to publish information, supported by a Code of Practice set by the Commissioner. Wider views on proactive publication, and the types of information respondents would wish to see authorities making available were also sought.

148. Respondents were asked to consider the following questions:

Question 17

Do you agree that the current provisions of sections 23 and 24 of FOISA, in regard to publication schemes, require to be updated?

149. There were 60 responses to this question, with 45 agreeing that the provisions of sections 23 and 24 of FOISA require to be updated. Five respondents did not agree that the provisions required to be updated whilst ten indicated that they did not know or had no view. There were 46 respondents who provided reasons for their answer.

150. Most of those explaining why they agreed that the provisions of sections 23 and 24 required to be updated referred to the changed ways in which people seek to access information about the work of public authorities. There was a widely held view that people rarely use the scheme itself as a tool for identifying and finding available information. Rather, people tend to rely on search engines, A-Z guides on authorities' websites etc.

151. There was also a view among some of these respondents that the requirement to maintain a publication scheme is seen as a 'tick box' exercise by authorities and adds little real value to their overall approach to making information available about their work. Some respondents in favour of updating the provisions provided more nuanced views. The Centre for Freedom of Information at the University of Dundee agreed that the provisions require to be updated, but indicated that the concept of the model publication scheme retains value as a guide for what authorities should publish and a standard against which a public authority can judge its own approach.

152. Two public authority respondents (Care Inspectorate, Stirling Council) suggested change should make the requirements less prescriptive – recognising the diversity of authorities and their needs:

"FOISA should reference best practice and provide an example of appropriate publication schemes, but not let this be restrictive or compulsory for organisations. In a digital world we publish much more information and publication schemes can be difficult to maintain." (Care Inspectorate response)

153. Others, such as SHEIP – A working group of Scottish Higher Education Information Practitioners, the Campaign for Freedom of Information in Scotland, Environmental Rights Centre for Scotland and the National Union of Journalists emphasised the need to reform in order to place significantly greater emphasis on proactive publication as a central aspect of the regime:

"We…support amending FOISA to put greater emphasis on proactive publication as the primary way in which SPAs demonstrate their transparency and accountability, with individual requests as a 'fall-back' for when information is not proactively published." (SHEIP – A working group of Scottish Higher Education Information Practitioners response).

154. Those providing reasons for disagreeing that the provisions require to be updated generally indicated that the existing provisions are adequate.

155. A number of respondents who said they did not know/had no view or who did not directly respond to the question provided some comment on their perspectives. Transparency International UK and the Scottish Community Alliance both expressed a general view that proactive publication requirements should be strengthened. Others, such as NHS Greater Glasgow & Clyde and North Ayrshire Council emphasised the need to be mindful of the resource required to proactively publish information.

Question 18

Do you agree with the Commissioner's proposal that the requirement to adopt and maintain a publication scheme should be replaced by a simple duty to publish information, supported by a Code of Practice on publication, set by the Commissioner subject to Parliamentary approval?

156. There were 60 responses to this question. Of those, 44 expressed agreement with the proposal, seven expressed disagreement and nine indicated that they did not know/had no view. There were 47 respondents who provided reasons for their answer.

157. Those expressing agreement with the proposal generally referred to the Commissioner's proposal representing an approach which would be simpler, more effective or more up to date. Some of those in favour also sought to qualify their support. A number of public authority respondents emphasised the need to be mindful of issues of proportionality – recognising that proactive publication of information requires staff resource. Any changes which would generate substantively increased obligations for public authorities would require to be resourced.

158. A number of respondents across sectors expressed concern about the enforceability of any duty, and accompanying Code. There was a clear desire on the part of a number of respondents for assurance that any move to a new model would not entail a substantive reduction or dilution of existing proactive publication duties.

159. Two civil society respondents – mysociety/What Do They Know and the Common Weal think tank – made comment about how to better integrate information released by various authorities.

160. Some of those expressing disagreement with the proposal did so on the grounds that the existing statutory requirements are already sufficient and that the proposed approach could place additional resource demands on authorities. Others feared that the proposed approach could inadvertently have the effect of reducing or diluting proactive publication requirements. Concerns about enforceability were raised in this regard. Both perspectives were also represented in comments from a small number of other respondents who said they did not know/had no view or who did not answer the question but nevertheless provided comment.

161. The Commissioner's own submission restated his reasons for favouring the approach, and offered some reflections on issues of workability and enforceability:

"Effective monitoring and enforceability of the current model has presented my office with a number of difficulties. An enforceable Code of Practice could require authorities to, for example, report annually to the Commissioner on their approach to publication, the information they publish (including new information made available), and how they comply with the requirements of the Code…Such a Code could, as with the current FOISA Codes, be subject to Parliamentary approval, perhaps under the negative resolution procedure. This would be similar to the (UK) Information Commissioner's preparation of statutory codes on data protection under the Data Protection Act 2018 (the DPA) (e.g. the Data-Sharing Code of Practice under section 121 of the DPA, and the Direct Marketing Code of Practice under section 122 of the DPA)."(Scottish Information Commissioner response).

Question 19

Is there any other alternative, that you see as preferable to the Commissioner's proposed approach?

162. There were 57 responses to this question. Only eight respondents indicated that there was an alternative approach which they regarded as preferable to the proposal put forward to the Commissioner. There were 23 respondents who indicated that there was no other approach they saw as preferable and 26 respondents indicated that they didn't know/had no view.

163. Eight respondents provided substantive views regarding the nature of possible alternative approaches. The think tank Common Weal and NHS Forth Valley both suggested more emphasis should be placed on ensuring that authorities publish information released in responses to requests.

"…a simpler solution may be to mandate authorities to publish a disclosure log (so members of the public can see what has been previously released under FOISA). This would ensure that information which is capturing public attention is proactively made available to more than the individual who asked for it." (NHS Forth Valley response).

164. Common Weal also highlighted their proposals for a Scottish Statistics Agency, as a mechanism for ensuring better public access to official statistics. Highlands and Islands Enterprise and South of Scotland Enterprise both called for greater standardisation of proactively published information across authorities.

165. Drawing on the 2017 report by former Scottish Information Commissioner Rosemary Agnew Proactive Publication: time for a rethink?^[8], SHEIP - A working group of the Scottish Higher Education Information Practitioners, suggested that there should be a new 'transparency framework' for Scotland. In SHEIP's view this should develop proactive publication obligations as part of a wider reform of access to information rights in order to ensure that the overall set of obligations for authorities remains deliverable and proportionate.

166. A registered social landlord respondent advocated the introduction of a Code of Practice alongside the requirement to maintain a Publication Scheme, rather than as an alternative to it.

167. One local authority respondent (Glasgow City Council) supported the idea of a general duty to publish information, but did not believe this should be 'enforceable'. This was set in the context of the Council's wider concerns about the workability and resource implications of any change in approach.

168. The Scottish Federation of Housing Associations suggested changes to the existing Model Publication Scheme to make it more streamlined and flexible. One individual respondent suggested the publication of 'raw data'.

Question 20(a)

How satisfied are you with the availability of information about the work of government and public services in Scotland in the public domain?

169. There were 52 responses to this question. Five respondents indicated they were 'very satisfied' with the availability of information about the work of government and public services. A further 16 respondents indicated they were 'somewhat satisfied', 15 said they were 'neither satisfied not dissatisfied', 10 were 'somewhat dissatisfied' and 6 were 'very dissatisfied'. Overall therefore, there were more respondents who were satisfied than dissatisfied. However, it should be noted that of the 21 respondents who said they were 'very satisfied' or 'somewhat satisfied', 16 were Scottish public authorities. Only two of these responses came from civil society or third sector organisations. Two responses were from individuals and one from a legal firm.

170. Of those saying they were 'very dissatisfied' or 'somewhat dissatisfied' only four were Scottish public authorities. Seven of these responses came from third sector or civil society organisations (including trade unions) and a further five came from individuals.

171. Of those indicating that they were 'neither satisfied nor dissatisfied' four were third sector or civil society organisations^[9], nine were Scottish public authorities and two were individuals.

172. Overall therefore, Scottish public authorities were more likely to be satisfied with the existing availability of information about government and public services in Scotland than third sector or civil society organisations were. However, there was a mixture of views across respondents of all types.

173. A total of 30 respondents provided reasons for their answers. Eight of those expressing satisfaction with information available referred to their view that there is already a significant volume of information available about the work of government and public services and/or that Scottish public authorities discharge their obligations well. However, nine respondents also or instead indicated where they saw room for improvement. Generally these comments related either to there being scope to publish more information, to making information easier to find or to improving the quality of communication with the public.

174. The Scottish Information Commissioner's response provided detailed reflections on how proactive publication could be improved.

"While recognising the significant increase in information made available to the public as a result of the current duty to publish under FOISA, the current model falls short of what was originally intended and has failed to keep pace with expectations and technological developments, or drive significant cultural change towards proactive publication." (Response from Scottish Information Commissioner)

175. Those expressing dissatisfaction generally referred either to a simple lack of information, to inconsistent or 'patchy' approaches by authorities or to there being an insufficient culture of publication.

176. Three of the 15 respondents who said they were 'neither satisfied nor dissatisfied' also made comments. One third sector organisation (Community Pharmacy Scotland) indicated that whilst their organisation had access to the information it needs, it could not comment on wider availability of information. Others (incl Moray Council) commented on there being a wide range of information available but highlighted issues around consistency and accessibility e.g. the lack of availability of information in different languages.

Question 20(b)

Specifically, what types of information regarding the work of government and public services in Scotland do you consider should be made available proactively?

177. There were 31 responses which made some substantive comment in response to this question. The most commonly recurring theme across these responses was the importance of making financial information available. There were 13 responses which made some reference to finance, funding, budgets, the use of public money etc.

178. Other key themes highlighted in the responses were the desire for: data/statistical information (10 responses), information about services (6 responses), information about/underpinning decisions and policies (5 responses), performance information (5 responses), information about contracts (3 responses), information about people involved in services and their interests (2 responses), diversity data (2 responses), demographic data (2 responses), major projects or other high impact issues (2 responses).

179. Three respondents (Scottish Information Commissioner, Campaign for Freedom of Information in Scotland, Kennedys Scotland LLP) highlighted what they saw as the value in the existing categories already highlighted in the Commissioner's Model Publication Scheme. In his own response, the Commissioner highlighted his own public awareness research:

"My public awareness research, indicates that the proportion of people who feel it's important that certain types of information are published has remained consistent across recent years. How authorities spend money is seen as important by the largest proportion of people, followed by information about decision-making, service delivery, performance and contracts." (Scottish Information Commissioner response).

180. A number of other specific comments were made by individual respondents. One public authority (East Renfrewshire Council) highlighted the value that Freedom of Information requests might have as a steer to information which ought to be prioritised for publication. Another public authority (Public Health Scotland) reflected on the importance of ensuring that authorities publish an 'equal balance' of information about what has not gone well against information the authority would wish to highlight.

181. The Campaign for Freedom of Information in Scotland called specifically for publication of information about companies and arms-length bodies set up by authorities, citing concerns about the effectiveness of section 6 of FOISA (relating to wholly-owned companies). The think tank Common Weal suggested the adoption of a 'Glass Wall' approach to publication of information by Scottish public authorities to ensure 'the proactive disclosure of all information that could conceivably be disclosed by a properly worded FOI request'.

Question 20(c)

How would you prefer to access information about government and public services in Scotland?

182. A total of 34 respondents provided substantive comments in response to this question. The majority (19) made some reference to accessing information 'online'. This may also have been assumed by some others.

183. Two respondents made explicit that they would wish to see information also made available in hard copy or 'non-digital' formats, for reasons of accessibility and one made reference to the role of local libraries. The importance of giving considerations to wider issues of accessibility was also highlighted by a number of respondents:

"Information must be available in digital and non-digital formats, including written materials. A variety of language options, including braille and translated versions, is also required, as are other communication options such as audio-visual formats. Attention should always be paid to the use of language to ensure that is clear and the information should be available in simple, easy-to-use/read formats that enable everyone the ability to understand it." (Alzheimer Scotland response)

184. Four respondents suggested the use of some form of central location, repository or database of publicly available information as a means of making information easier to find. The think tank Common Weal highlighted its proposals for a Scottish Statistics Agency and a 'Glass Wall', clarifying that it would still see a role for public authorities in assisting members of the public to access information under such arrangements.

Stakeholder discussion – Proactive Publication

At the dedicated stakeholder discussion event on Proactive Publication participants were asked to consider a fictional case study of a new Scottish public authority and to consider what the aspirations of that body should be in terms of its approach to proactive publication of information. In the second part of the discussion participants were asked to consider how this compared with real-world approaches by government and public services in Scotland. In the final part of the discussion participants were asked about the effectiveness of the existing statutory regime in encouraging proactive publication and what changes – if any – might help to promote stronger approaches to proactive publication by authorities.

Discussion Part 1 – Considering fictional case study

There was a general feeling that the current situation is not quite fit for purposes any more despite the principle of proactive publication being sound.

Participants highlighted the need for bodies to resource Proactive Publication, and not simply rely on the good practice of individual practitioners.

There was a shared view that information that is proactively published also needs to be easily accessible in a standardised way across organisations where possible.

Proactive publication needs to be built upon and brought into alignment with current technological advancements.

Discussion Part 2 – Considering approaches by government and public services

Participants considered issues around how Proactive Publication schemes are monitored, assessed and enforced.

There was discussion around the extent to which issues such as commercial confidentiality are overextended to act as a block.

There was an overall sentiment that greater clarity around how different pieces of legislation and broader factors - including issues such as commercial confidentiality, GDPR and any other relevant legislation - interact with and may have unintended consequences for proactive publication.

Consideration was also given to issues of scale, and how requirements may differentially impact on organisations which are very small versus very large in size.

Discussion Part 3 – Considering the statutory regime

There was a divergence of views about whether a 'one size fits all' approach presents issues, and whether greater clarification in guidance is required.

This related to issues around determining which organisations should be regarded as providing public services.

There was discussion regarding the capacity for enforcement, particularly with regard to non-public sector bodies that might be - or become – designated as Scottish public authorities for the purposes of FOISA.