The SPSO has responded to a consultation from The Scottish Government on Access to Information Rights in Scotland. This consultation aimed to collect views from a wide set of stakeholders on the need for future legislative changes to the Freedom of Information (Scotland) Act 2002 (FOISA).
We responded to this consultation because access to information, in respect of our statutory functions, is provided for in the Scottish Public Services Ombudsman Act (Scotland) 2002. This gives us the powers during investigations (separate to FOI) to obtain information from third-parties that may be challenging for complainants to access.
In our response, we made suggestions to provide assurance that the FOI Act, particularly Section 5 powers, can be used consistently to ensure it can keep pace with any changes in the delivery of public services. These included:
- Including a purpose clause, which would “follow” the contractual/ procurement journey of the functional changes
- The Scottish Parliament could include questions about access to information rights as part of the consultation and co-design of services when major reforms are underway to public service delivery as standard
- A risk based approach that ensures the risk of losing access to information rights are mitigated
- Make access to information rights integral to the procurement process and contract.
We also commented in the consultation that we support the introduction of any mechanism that ensures information rights are not impacted if a public service is being delivered by the third or private sector.
The consultation asked our thoughts on amendments to the FOISA that would prevent Scottish public authorities from relying on confidentiality clauses with contractors as a basis for withholding information. We regularly consult with expert external advisers during the course of our investigations. We are required by law to investigate in private and prohibited from disclosing information unless it is covered by exceptions in our legislation (the Scottish Public Services Ombudsman Act 2002). The information we share is also often sensitive, special category data – including social work and clinical records. We require our external advisers to keep this work and information confidential.
With regards to an amendment, we said that we support this in principle but extreme caution would have to be exercised in how this was drafted to ensure that there is protection for members of the public (and some contractors) in relation to personal data (particularly special category data).
Many confidentiality clauses are put in place to protect members of the public and specialist advisers, and this should not be undermined or reduced in any way. For our work at the SPSO, this could undermine our ability to deliver our statutory functions and procure specialist advice.
Previous inquiry and consultation responses can be found on our policy work webpage.