SCOTLAND needs urgent reform of Freedom of Information laws which have failed to keep pace with the times, the nation’s information commissioner has warned ahead of the legislation’s 20th anniversary.
David Hamilton, the Scottish Information Commissioner, issued the call for action after the SNP Government brought in a de facto delay to the extension of the law to cover social care providers due to delays to the National Care Service Bill.
Hamilton said the SNP Government’s move was “disappointing” – and pointed to 2024 research from ScotPulse which found that 93% of Scots think Freedom of Information (FOI) laws should cover publicly funded health and social care services.
Scotland’s FOI Act came into force on January 1, 2005, and gave individuals a legal right to access information held by Scottish public authorities.
Hamilton – whose six-year term as information commissioner began in October 2023 – said: “After 20 years, there are parts of Scotland’s FOI law which are undoubtedly showing their age.
“It’s an undisputed fact that FOI has failed to keep up with changes in the way public services are delivered, and the extension of FOI rights to bodies that provide vital services like care homes is long overdue.
“I would therefore urge the Scottish Parliament and Scottish Government to seize the opportunity to refresh, enhance and protect the public’s FOI rights, to ensure that they remain fit for purpose for the next 20 years, and beyond.”
The commissioner noted that the ScotPulse research, published in May 2024, found that 97% of people considered it important for the public to be able to access the information held by public bodies, while just 6% said FOI laws were a waste of public money.
Scottish Labour MSP Katy Clark has been working on a private Member’s Bill which would reform Scottish FOI legislation.
She explained that it would “extend the current FOI legislation in Scotland to include private companies and other bodies delivering public services as well as some other much-needed changes to ensure transparency whenever public money is being spent”.
“I am hopeful that this bill will secure cross-party support from MSP colleagues who I know will recognise the need for full transparency and accountability when it comes to obtaining information that is in the public interest.”
Clark added that she hoped to lodge the bill at Holyrood “very early in the new year”.
Parliamentary Business Minister Jamie Hepburn said: “Scotland has the most open and far-reaching FOI legislation in the UK.
“The Scottish Government will consider the terms of Katy Clark's proposed FOI reform Member's Bill at such time as any bill is introduced.
“The Scottish Information Commissioner has highlighted the impressive nature of the Scottish Government’s current level of performance against timeframes, with more than 95% of FOI requests currently responded to within the statutory deadline.
“Ministers remain committed to consulting on extension of the FOI Scotland Act in the care sector after the National Care Service Bill has been passed.”
Hamilton’s intervention comes weeks after he criticised the SNP Government for its handling of a long-running FOI battle over evidence given to a probe into whether Nicola Sturgeon broke the Ministerial Code.
The Scottish Government initially declined to release the information saying it was “held” by independent adviser James Hamilton, only to lose on appeal – a decision they challenged despite conflicting legal advice.
Hamilton accused the Government of having “misrepresented the facts” by noting that they had been advised of a good chance of success in the case, without noting that this had “diminished considerably over time”.
