REF NO.
PUBLIC AUDIT AND POST-LEGISLATIVE SCRUTINY COMMITTEE
POST LEGISLATIVE SCRUTINY - FREEDOM OF INFORMATION (Scotland) ACT 2002
SUBMISSION FROM SOLAR (THE SOCIETY OF LOCAL AUTHORITY LAWYERS AND
ADMINISTRATOR IN SCOTLAND) and SOLACE SCOTLAND (THE SOCIETY OF
LOCAL AUTHORITY CHIEF EXECUTIVES AND SENIOR MANAGERS)

1. In your view, what effects has the Freedom of Information (Scotland) Act 2002
(FOISA) had, both positive and negative?
The introduction of FOISA has created new legal opportunities for members of the public
and organisations to seek information relevant to themselves, and to use that information to
challenge decisions or inform responses. This has clearly made the public sector more
transparent, although in the case of local authorities this is another step on a journey which
commenced with the Local Government (Access to Information) Act 1985.
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.
2. Have the policy intentions of FOISA been met and are they being delivered? If not,
please give reasons for your response.
We think the policy intentions of FOISA have been met. While there are some
improvements which could be made, we think these are minor and on the whole the
legislation strikes an appropriate balance both in terms of the exemptions which exist and
the time within which an authority must respond to a request and (other than as mentioned
below in relation to timescales) we would not propose any significant changes to either of
these.

3. Are there any issues in relation to the implementation of and practice in relation to
FOISA? If so, how should they be addressed?

 REF NO.
As noted above, 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. This factor, combined with the £100/90% cost disregards, mean that the fees
regulations are effectively pointless in practice. The only element of the fees regulations
routinely applied by authorities is in relation to the £600 limit. It should be noted that this
equates to 40 hours of staff time before a request can be rejected on cost grounds, which
still represents a significant diversion of resources to something which may only be of
interest to one individual. This is in contrast to the more flexible (and practical) charging
regime under the Environmental Information (Scotland) Regulations 2004.
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. We would also welcome consideration of Ministers making
use of the provisions under section 12 of the Act to address the scenario where councils are
on the receiving end of orchestrated campaigns of FOI requests for broadly the same
material.
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.
4. Could the legislation be strengthened or otherwise improved in any way? Please
specify why and in what way.
As noted above, a more flexible regime for dealing with vexatious requests would assist, as
would regulations made under section 12, 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.
Lastly, particularly in the context of the integration of health and social care, we feel it would
be helpful if authorities could transfer FOI requests in a similar manner to how we can
transfer EIR requests. A health and social care partnership is, in reality, three separate
entities and the feedback we have received from applicants is that they see the HSCP as a
single entity and find it frustrating when they are told they need to submit a fresh application
to another part of the partnership.
5. Are there any other issues you would like to raise in connection with the operation
of FOISA?

 REF NO.
The Commissioner has continued a practice whereby if the investigation by his staff
suggests that an applicant is unlikely to win an appeal, they are given the chance to
withdraw the application. No decision notice is published in these circumstances. However
this deprives the authority involved in the appeal the opportunity to see which parts of the
submissions they made to the Commissioner were persuasive, and it deprives all other
public authorities (and applicants) of the learning opportunity which a published decision
notice provides. The practice also has the effect of skewing the published statistics by
inflating the proportion of decisions in favour of applicants, as decisions which would have
been in favour of the authority are closed off before a decision notice is published and
therefore do not appear in these statistics.
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.