Scotland’s transparency laws need to be strengthened to cover private firms that own billions of pounds worth of hospitals, roads and schools, the outgoing information commissioner has said.
Daren Fitzhenry, who has just finished his six-year term as Scottish information commissioner, told the Guardian there was a powerful case for ensuring the public had the right to question companies that have multi-billion-pound public sector contracts.
He said freedom of information laws should also be extended to cover the numerous charities and voluntary groups paid to provide public services, in particular social care.
Fitzhenry said the rapid growth in outsourcing of public services and the mushrooming of private contracts to build and run hospitals, doctors’ surgeries, colleges, schools and roads, and to run local transport services, had eroded transparency and accountability.
Outsourcing meant that people’s freedom of information rights were being “actively removed” because the increasing number of organisations given that work were not yet covered by Scotland’s transparency laws. That had meant “a loss of rights”, he said.
Fitzhenry, previously a lawyer for the Royal Air Force, said it had been “incredibly frustrating at times” that the Scottish government had not produced the reforms it had promised more than four years ago.
The need for properly enforced transparency was underscored during the “challenging” Covid pandemic, when huge decisions were made to restrict civil liberties, spend billions on the pandemic response and amass mountains of health data.
He said the government and NHS responded very well to the demands for Covid data and information to be released: “It’s at these exact times of crisis, that [access to] information is even more important than ever,” Fitzhenry said.
He began his term of office in 2017 with two main goals, he said. One was to carry out a statutory review of the devolved government’s track record under the freedom of information (Scotland) Act 2002, and the second was to modernise that legislation.
There had been progress with the first task, which followed intense cross-party criticism at Holyrood in 2017 of the government’s record, but it was still incomplete. And there was still no draft legislation to improve the 2002 act, now more than 20 years old, he said.
The government acknowledged in 2019 that including private finance companies was needed. The Labour MSP Katy Clark is expected to publish her plans for a private member’s bill on strengthening the law within weeks, adding to the pressure on Scottish ministers to act. The government said on Friday it was still considering what to do.
Investigations by the Guardian in 2015 found that Scotland’s private finance debt had risen to more than £30bn, after the Scottish National party increased the use of privately built infrastructure projects, although at lower cost than the £20bn worth of schemes initiated by Labour and the Conservatives.
Access to information about those contracts is heavily restricted: councils and health boards who signed the contracts repeatedly rejected information requests.
Fitzhenry said improving transparency improved public confidence and services. “The principle is that [freedom of information] needs to be recognised for the real value that it adds, not only to public discourse but also to real people’s lives. A lot of what they seek is local information relating to their local lived experience.
“And if they can see that as a really practical, tangible right, that needs a practical, tangible way of getting the information that works in practice.”
Fitzhenry said he believed the next act should involve adding the names or category of public service providers to a public list of those organisations captured by Scotland’s transparency laws.
Ministers have already added to that list using the 2002 legislation, successfully including social landlords, he said, but that process was slow and still did not capture the many organisations running public services.
Public bodies and contractors should also be expected to proactively publish information. “It is absolutely a core function,” he said. “The public need to know what decisions are being taken, what those key decisions are based on, how public money is being spent.”
Carole Ewart, director of the Campaign for Freedom of Information in Scotland, said: “The Scottish government keeps hoping this will go away but their failure to act simply reinforces people’s determination to push for reform.”
