Scottish Institutional transparency

Introduction
This open Wiki page is intended to collect together proposals, campaign asks and evidence on opening up Scotland's public institutions.

We hope the Open Government Scotland network can use this to develop letters, campaigns, awareness raising or to support meetings with influencers.

Why do we need this?
Recent developments:
 * Concerns raised by Scottish Parliament and others about the transparency of the Scottish Police Authority has garnered media attention
 * Concerns raised by mainstream media journalists in Scotland around handling of Freedom of Information requests by Scottish Government
 * Opportunities to use Scotland's Pioneer status, and Scottish Government's Open Government Action plan to take a step up in transparency of public institutions this year.

Deadline
Friday 28 July 2017

Purpose
The Committee can decide to consider previous Acts of the Scottish Parliament to determine whether they have achieved their intended purpose. This may mean examining a specific part of an Act rather than examining the legislation as a whole.

Questions to consider

 * Do you consider that the Act has had sufficient time to have made a difference? The Committee is unlikely to consider Acts that have only recently come into force.


 * Does the Act have a measurable outcome or policy objective, and has it fulfilled its intended purpose? When a Bill is introduced, a separate document called the Policy Memorandum explains why the Bill has been proposed and describes the objectives and outcomes it is designed to achieve. Has the Act been effective in delivering these objectives and outcomes?


 * Has another committee of the Parliament already carried out post-legislative scrutiny of the Act? Other committees of the Parliament have always been able to undertake post-legislative scrutiny and will continue to do so.It is therefore important to avoid possible duplication; having said that, if the scrutiny was undertaken more than five years ago, we may    wish to revisit the legislation.


 * Does the Act contain an in-built mechanism for post-legislative scrutiny? The High Hedges (Scotland) Act 2013, for example, was amended to allow for a review of the operation of the Act to take place within a specifictimeframe. It is anticipated that the relevant subject committee would therefore undertake post-legislative scrutiny at the appropriate time.


 * Has the Act been subject to, or could it be subject to, significant revision? The Scottish Government outlines its legislative programme on an annual basis, which may contain proposals for Bills that would alter existing Acts or perhaps even repeal an Act. MSPs and Committees can also seek to introduce bills. If the Government has said it will be reviewing or is planning to amend the legislation, we would not want to duplicate that work.


 * Would there really be merit in undertaking post-legislative scrutiny of the Act? For example, does the Act deal with a very technical or minor issue?


 * Is the Act subject to legal challenge? The Committee is not allowed to consider any matter that is sub judice; in other words, the Committee would not consider an Act that is being reviewed in the courts.

Letter to Scottish Parliament Public Audit and Post-legislative Scrutiny Committee
Final letter will be available at Letter-SP-PAPLSC

Drafts

Letter to Scottish Parliament Public Audit and Post-legislative Scrutiny Committee

The Scottish Government has committed itself to principles of transparency, openness, and accessibility. The First Minister committed her Government to be an "outward looking Government which is more open and accessible to Scotland's peoples than ever before" and for her Government and public services: "to be known for the quality of our relationship with Scotland's communities". Following this statement, and with the support from civil society in Scotland, the Scottish Government successfully applied for Subnational Pioneer Status with the international Open Government Partnership.

As members of the Open Government Network for Scotland, we fully support this ambition.

However, with this status comes both the recognition and responsibility to be a global exemplar of open government. One of the vital mechanisms for assuring Scotland's people of this status is a properly functioning freedom of information law. Recently, concerns have been raised from across society in Scotland regarding the effectiveness of the Freedom of Information (Scotland) Act 2002. Including:

- A coalition of journalists from across the media landscape in Scotland raising concerns about the treatment and management of freedom of information requests.

- Motions passed by the Scottish Parliament condemning the record of response to freedom of information requests.

- Statements from the outgoing Scottish Information Commissioner.

- [MORE?]

These concerns are at a sufficient level, and represent a significantly wide array of society that we believe the Freedom of Information (Scotland) Act 2002 should be examined by the Scottish Parliament’s Public Audit and Post-legislative Scrutiny Committee.

But important as it is, it is also our view that effective Freedom of Information is merely the tip of the iceberg to ensure transparency and trust in Scotland's public institutions. In due course, this may merit a parliamentary inquiry into the transparency of Scotland's institutions, building on an initial examination of FOI by the Public Audit and Post-legislative Scrutiny Committee.

As members of the Open Government Network, we call for the Public Audit and Post-legislative Scrutiny Committee to review of the effectiveness of FOISA 2002 and stand ready to inform this.

Yours,

Signatories:

= Institutional Transparency Meet-up =

Event Initiation Plan
= Key messages for discussion with Scottish Parliament Public Audit Committee =

Context
The Scottish Parliament has invited members of the Open Government Network to provide evidence supporting the Letter-SP-PAPLSC.

They have requested a private hearing and are seeking advance bullet points which they are happy to be published.

Here are draft bullet points for the Committee in advance of their hearing which has been drawn from the opengovscot forum. Please feel free to add to this:

Key points for review
The following is a summary of issues raised in the opengovscot network forum. Network members have also been encouraged to add or tweak this.

Issues raised

 * Growing concerns around the application of FOI by public authorities, in particular the Scottish Government.
 * Concerns around the increasingly systematic practice of not minuting meetings held by Scottish Ministers undermines representative democracy
 * Concerns raised that unnecessary secrecy in government will undermine Scotland's credibility as an open government pioneer
 * Concern raised that without progressive FOI requests how are we to have mechanisms to ensure human rights are being met 'amongst other things'.
 * Concern that some NHS regional authorities may be over-using/abusing 'confidentiality' to prevent the public from accessing essential information.
 * Examples given of 'stalling tactics' in responding to FOIs by local councils e.g. by using the full time allowance around FOIs to run.
 * Concern that Minister Joe Fitzpatrick MSP last year had to admit inadequacy to Scottish Parliament in scotgov FOI responses
 * Concern of examples of quangos that seem to be avoiding writing to their boards in order to avoid attracting FOI requests
 * Concerns that journalists had to write to the Parliament last year claiming widespread failures to comply with laws on the supply of information held by public bodies.
 * Concerns raised that some prominent public bodies seemed to be using a tactic of releasing lots of information at last notice in order to make meaningful scrutiny/transparency difficult.
 * Post-Legislative Scrutiny of FOISA is different to any review carried out by Scottish Information Commissioner even if the latter is widening their intervention. They are two very separate processes.
 * Campaign for Freedom of Information in Scotland (CFoIS) has launched a ‘Get it Minuted’ Campaign and is calling on people and organisations to ask and insist that there are agendas, notes and minutes for any meetings with the Scottish Government.
 * Finally, concerns raised that the Scottish Parliament Public Audit Committee want to hold this hearing informally. This session cannot be informal as the purpose is to inform a critical decision on official business.

Research
Ben Worthy, Birkbeck College, University of London
 * FOI in the UK https://opendatastudy.wordpress.com/2016/01/21/whats-going-on-more-evidence-on-foi-in-the-uk/
 * On the chilling effect and attempts to avoid FOI https://opendatastudy.wordpress.com/2017/09/28/does-foi-create-a-chilling-effect-evidence-from-the-uk/
 * This longer paper you can access for free https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2708768