1.1 Post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002
1. The Scottish Government welcomed the post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002 (FOISA) undertaken by the former Public Audit and Post-legislative Scrutiny Committee (the Committee) during the fifth session of the Scottish Parliament.
2. The Committee took evidence from a number of stakeholders with an interest in the functioning of FOISA over the course of 2019. Its report, published in May 2019, highlighted a number of areas where the Committee had concerns about the operation of FOISA, and whether the legislation remained fit for purpose. The most fundamental of these related to the Committee's concern that the legislation had not, in the Committee's view, kept pace with changes in the nature of public service delivery. In that context the Committee was concerned that an insufficient range and number of bodies were subject to the legislation.
3. The Committee also considered whether the legislation had kept pace with developments in information technology, whether it had led to sufficiently robust approaches to proactive publication and whether other changes were required to ensure the Act remained fit for purpose.
4. The Scottish Government provided its formal response to the Committee's report on 25 February 2021. In that response the Government accepted the Committee's central recommendation that there should be a consultation to seek the views of a wider set of stakeholders on the need for future legislative change, taking the Committee's recommendations as its starting point.
1.2 The consultation
5. The Scottish Government subsequently sought views on the access to information rights regime in Scotland, via a public consultation exercise which ran from 29 November 2022 to 14 March 2023. This exercise was aimed at gathering further views on the range of distinct areas highlighted by the Committee.
6. The consultation paper asked 31 questions, organised around the following key themes:
- Agility of the regime - maintaining and strengthening access to information rights in the context of varied models of service delivery
- Developments in Information Technology – ensuring access to information rights in the face of changing modes of information use
- Improving proactive publication – promoting openness as 'business as usual' in a digital age
- Technical and other issues – ensuring the Act remains fit for purpose
7. The analysis of responses to the consultation set out in this paper may be best understood if read alongside the original consultation paper.
1.3 Stakeholder discussion events
8. Three stakeholder discussion events were also held during the consultation period, to explore key themes of the consultation: Proactive Publication, Agility of Access to Information Rights and Ensuring the Access to Information Rights Regime Remains Fit for Purpose. Participants included representatives of organisations spanning civil society, and the third, public and private sectors. See Annex B for a list of organisations represented.
9. Extensive notes of these discussions were taken and summary read outs have been provided to participants. Outcomes from the discussion sessions have been referred to throughout the document, where these add value to the comments made by respondents in their written submissions.
1.4 Respondents and responses to the consultation
10. The consultation received 83 responses: 70 responses were from organisations and 13 were submitted by individuals (see Annex A for a list of responding organisations). Responses were received from members of the public, private and third sectors. Activists and civil society organisations, including two trade unions, also responded.
11. Most of the responses were submitted via the Scottish Government's consultation hub Citizen Space, with 26 responses submitted via email.
1.5 Approach to analysing the responses
12. The questions posed in the consultation were mainly closed questions with free text follow ups. This provided respondents with an opportunity to expand on answers in detail if they wished. A number of respondents also chose to answer only the questions most relevant to their organisation. Therefore, whilst there is an element of quantitative analysis undertaken, the majority of this report is based on qualitative analysis of responses in order to illustrate and consider the range of views received. All responses were analysed via the Citizen Space platform. Overarching themes of the responses are considered in part 7 of this report.
1.6 Interpretation of the findings
13. Although the consultation received responses from a mix of public, third sector organisations and civil society, it cannot be assumed to be representative of each sector or the wider population given the relatively small number of responses. It should also be noted that private sector organisations were not very well represented in responses.
1.7 This report
14. This report presents an overview of the range of responses received to the consultation and also considers evidence gathered during engagement sessions. Key themes which emerged are discussed alongside specific detail raised by respondents.
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