from The National, 19 January 2015
Freedom of information rights have been seriously eroded over the last ten years because governments have failed to ensure that the law has kept pace with privatisation, Scotland’s information tsar is warning.
Rosemary Agnew, the Scottish Information Commissioner, criticises ministers for not applying freedom of information (FoI) legislation to housing associations, private prisons and many other organisations that have taken over public services. Powers to extend the law have been “woefully underused”, she says, and hundreds of thousands of people have lost FoI rights as a result.
She is so concerned that she has taken the unusual step of submitting a special report to the Scottish Parliament calling for FoI rights to be immediately reinstated. The report, which is published today, represents a direct challenge to the Scottish government.
“It is quite simple really,” says Agnew. “If FoI law does not cover the right organisations we stand to lose more than access to information rights: we stand to lose the opportunities it gives all of us to have a say in how Scotland is governed and run on our behalf.”
There had been a lack of meaningful discussion about covering new bodies delivering public functions, she argues. “I urge action to halt and repair the erosion of information rights and call for debate about developing an approach to extend FoI rights in a considered and equitable way.”
Since 2005, more than 15,000 households have lost FoI rights because their landlords changed from local authorities to housing associations. A further 100,000 households were deprived of FoI rights for the same reasons between 2002 and 2005, when the Freedom of Information (Scotland) Act had been agreed but not implemented.
Privatised prisons at Kilmarnock and Addiewell in West Lothian with capacity for 1,400 prisoners are not covered by FoI. Around 100 new private bodies known as arms-length external organisations (ALEOs) set up by local authorities to provide public services are also outwith FoI legislation (see table below).
“The scope of FoI has reduced since it came into force on 1 January 2005,” says Agnew. “The rights to access information have diminished and in some areas, such as some social housing, have been lost.”
The main reason is that ministers have failed to use powers under the legislation to designate newly privatised bodies, she argues. ”The early stated intentions to extend FoI to completely new areas have not been delivered.”
Agnew urges ministers to carry out a review to identify where FoI rights have been lost, and to reinstate them. “I consider this to be a priority,” she says. Ministers should “immediately” bring housing associations and private prisons within the scope of FoI.
She has supported a petition to the Scottish Parliament calling for housing associations to be subject to FoI. The fact that associations are public bodies under ombudsman law but not under information law is “confusing and could introduce inequalities for tenants,” she argues.
Ministers should also adopt a policy that automatically extends FoI law to private bodies that take over from public authorities, she recommends. “I consider this to be a priority.”
FoI legislation was meant to have evolved to include new models of public service delivery, Agnew points out. “My concern is that the powers that enable this extension of the coverage of FoI have been woefully underused, and if not exercised we run the risk of eroding the impact of one of Scotland’s major success stories.”
Willie Rennie MSP, leader of the Liberal Democrats in Scotland, agreed that the aim of an open society had been undermined. “This Scottish government has an unhealthy relationship with secrecy,” he said.
“The growth in arms length and other bodies which fall outside the scope of the FoI Act means that services previously open to scrutiny are now operated in secret. That needs to change and the Information Commissioner is right to highlight it.”
The Campaign for Freedom of Information in Scotland backed moves to extend FoI coverage. “Successive Scottish governments have failed to act on this,” said the campaign’s convener, Carole Ewart. “It is long past time for FoI rights to cover all public services - whoever delivers them.”
There were many new bodies that ought to be subject to FoI, she suggested. “Our care services are increasingly delivered under contract by voluntary or private bodies. Privatised services deliver public transport, roads maintenance, water and sewerage services.”
The Scottish government welcomed Agnew’s report, and promised to consider her recommendations. “We anticipate consulting on proposals for further extension of FoI in the spring,” a government spokeswoman said.
“This will include looking at areas where FoI rights in relation to a particular service have been lost due to changes in how public services are delivered.” She pointed out that an order extending FoI to leisure, cultural and sporting bodies set up by councils had come into effect in April 2014.
“The Scottish Parliament is currently considering an order to make the new Integration Joint Boards, which are partnerships between councils and NHS boards to improve local health and social care services, and the James Hutton and Moredun research institutes subject to FoI,” the spokeswoman added.
“Scotland has the strongest and most robust freedom of information regime in the UK. As set out in our principles of FoI in 2007, we are committed to keeping the Act under review – this includes further extending coverage as necessary and appropriate.”
Losing freedom of information rights
15,000 households transferred to housing associations since 2005
103,000 households transferred to housing association between 2002 and 2005
Around 100 new private bodies set up by local authorities
Private prisons at Kilmarnock and Addiewell for nearly 1,400 prisoners