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'Arms length' public service delivery should not block FOI access, says watchdog

The Scottish Government should, "as an immediate priority", expand the scope of Scotland's freedom of information (FOI) laws to external organisations that deliver public services, the Scottish Information Commissioner has said.19 Sep 2012

Rosemary Agnew said that it was "simply not acceptable" for the public to be denied access to information about how public money is being spent because the delivery of public services is increasingly being outsourced. She said the Government should increase the number of bodies designated as falling within the scope of Scotland's FOI laws to rectify the issue.

"FOI was introduced for a reason - to ensure that the delivery of public services and the spending of public money is transparent, open and accountable," said Agnew in a statement. "It is simply not acceptable that citizens' rights continue to be eroded through complex changes in the delivery of services. This must be looked at as an immediate priority."

"The current economic situation is leading to an increase in FOI requests to authorities, as people naturally want to understand the reasons behind decisions that affect them," Agnew said. "At the same time, authorities are finding themselves with fewer resources to respond. My priority as Commissioner is to help the public make better targeted, more effective requests, while also developing resources to support public authorities in responding to those requests faster and more efficiently."

"However, an ever-growing concern is the loss of rights occurring through the delivery of public services by 'arms-length' organisations and third parties," she said.

Under the Freedom of Information (Scotland) Act (FOISA) only "designated" bodies listed are subject to the laws set out in the Act and although the provision exists to add organisations to this list Scottish Ministers have not done so since the law was enacted in 2002.

In January 2011 Scottish Ministers decided against adding organisations such as leisure, sport and cultural trusts established by local authorities to the list of designated bodies subject to FOISA. The decision was taken following a consultation on the issue and meant that private contractors that run prisons or build schools, hospitals or roads under private finance initiatives (PFI) are not required to disclose records when requested.

Earlier this year the then Scottish Information Commissioner, Kevin Dunion, said that the public should be given the right to make FOI requests for information stored by bodies that work on behalf of public authorities.

At the time Dunion said that the fact that there had been no new 'designations' under FOISA since it was first enacted "calls into question whether Scottish rights to information will keep pace with the change in delivery of public services, and whether those spending public funds can be held to account at an operational or local level." He added that "designation is not necessarily about extending rights to information but safeguarding them," citing the outsourcing of public service work to trusts and private contractors as examples of cases where the right to information was lost.

Agnew's comments accompanied the Scottish Information Commissioner's annual report (30-page / 3.93MB PDF) for 2011/12. The report said that public authorities that operate "good publication schemes" through which they make certain information proactively available can help themselves to reduce the time it takes to respond to FOI requests.

The Scottish Information Commissioner's office had managed to investigate appeals and issue a decision on them within four months in 63% of cases during the past year, compared to in only 33% of cases the previous year, the report said. The watchdog said it had managed to close 81% of the 642 appeal cases that it had heard during the past year. The total "caseload" was up from 592 such cases in 2010/11.