Top brass accused of attack on FOI

by DOUG COLLIE

The associations representing local government lawyers and chief executives stand accused of trying to weaken Freedom of Information legislation in Scotland by seeking to amend the threshold governing 'vexatious' requests.

In a joint submission to a Scottish Parliament committee which is reviewing the FOI system, the societies of lawyers and administrators, and chief executives also point to the high cost of investigating and responding to requests, call for an extension to the 20-day period allowed for responses, and claim information has been misused on occasions.

Critics, and campaigners for greater transparency by public authorities say the submission is an attempt to undermine the system which has opened up local government to greater public scrutiny. But the lawyers and chief officers maintain their response to the call for evidence is an attempt to make the system work better for all users.

The document lodged with the Public Audit Committee at Holyrood states: "On the downside we think the resource implications for local authorities in complying with this legislation have been significantly underestimated. No additional resources were made available to implement this legislation so all the resources required to comply have had to be diverted from other front line services.

"We are also concerned about what could be seen as misuse of the legislation by commercial sector actors, such as companies asking for staff contact details simply to send marketing emails or seeking commercial opportunities, both of which are irrelevant and pointless for public sector bodies subject to European procurement rules. 

"We are also conscious that authorities occasionally have to deal with highly disgruntled individuals who will pursue any avenue of complaint open to them regardless of the merits of their case, and FOI has created another such route for these individuals, some of whom use FOI as a weapon to punish local authorities for supposed misdeeds."

This powerful lobby group add that the resource implications of FOISA have not been adequately addressed (or indeed, addressed at all). This factor is compounded by the fees regulations which impose what is now an artificially low cap on the amount of staff time which can be charged for. The staff who routinely have to deal with FOI requests (and particularly the sensitive and/or high profile requests) typically cost authorities significantly more than £15 per hour to employ. The fees regulations are effectively pointless in practice. 

"In terms of misuse of the legislation, we appreciate that from the perspective of some applicants they will genuinely believe they are victims of misconduct which they are seeking to expose, but a review of the current very high threshold for declaring a request to be vexatious would be welcome", adds the submission.

"We have also noticed an increasing tendency for MSPs and their researchers to use FOI as a means of acquiring information from local authorities. We would hope that positive and trusting relationships between different parts of the public sector would make recourse to FOI by MSPs and their researchers unnecessary."

The paper repeats the request for a more flexible regime for dealing with vexatious requests and a more realistic approach to fees and charging.

"We also feel that it would be helpful for authorities to be able to extend the timescale for compliance under FOISA for particularly complex cases, as is currently the case under the EIRs (and also for subject access requests under GDPR). We do not think this provision would be abused as our experience is that the extension provisions under the EIRs are only used very rarely."

In conclusion the local government leaders say: "The organisations who have submitted this response are at the forefront of turning the legislative ambitions for FOI into the reality of stakeholders actually receiving information (or the reason why they cannot have that information). We strongly support the retention of comprehensive freedom of information laws to support transparency and inclusiveness agendas. The comments made above are intended to make FOI work better for the majority of people using the legislation as intended by the Scottish Parliament."

Carole Ewart, of The Campaign for Freedom of Information in Scotland, told the investigative media website The Ferret: "We oppose all attempts to diminish the right of people to enforce transparency and accountability in elected government in Scotland. Within local authorities there needs to be a change in culture and practice so that far more information is pro-actively published and jobs are created to process FoI requests lawfully.”