Scottish Institutional transparency
From Open Government Pioneer Project
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?
- 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.
What should we ask for?
|Audience||What is our ask?||Approach||Timing||Who wants to be involved in this? (add your organisation or name here)|
|General public||Coverage in mainstream media|
|Scottish Parliament Public Audit and Post-legislative Scrutiny Committee||Letter from opengovscot network members 2018||Open Rights Group Scotland
Scottish Council for Voluntary Organisations
|Scottish Parliament MSPs signatories to FOISA motion by Neil Findlay MSP||Follow up letter to Neil Findlay MSP from opengovscot members|
|HMISC review into openness and transparency of Scots Policing Authority.|
|Scottish Government Ministers|
|Joint letter to new Information Commissoiner||An open meeting with civil society, journalists, academicresearchers||Commitment from Info Commissioner to address these issues. A plan of action for improvement of access to information in Scotland.|
Scottish Parliament Public Audit and Post-legislative Scrutiny Committee
Friday 28 July 2017
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
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.
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.
|Organisations||Individuals (members of Open Government Scotland network)|
|Scottish Council for Voluntary Organisations (SCVO)
Glasgow Council for Voluntary Organisations (GCVS)
Centre for Scottish Public Policy (CSPP)
Voluntary Action East Renfrewshire (VAER)
Open Rights Group (ORG)
Plus Perth and Kinross
Scottish Independent Advocacy Alliance (SIAA)
The Democratic Society
|Ruchir Shah, SCVO
Robin McAlpine, Common Weal
Helen MacNeil, GCVS
Richard Kerley, CSPP
Anne Kidd, VAER
Matthew Rice, ORG Scotland
Susan Scott, Plus Perth and Kinross
Janine Rennie, Wellbeing Scotland
Shaben Begum, SIAA
Eliot Stark (STRIVE)
Institutional Transparency Meet-up
Event Initiation Plan
|Event Name||Institutional Transparency Meet-up|
|Event Sponsor||Ruchir Shah|
|Event Lead||Paul Bradley|
|Start Date||June 2017|
|Completion Date||Meet-up will take place in early August 2017|
|Team Involved||· Open Government Network Scotland
· Scottish Council for Voluntary Organisations
· Common Space
|The objective of this meet-up is to bring together journalists in Scotland and the Open Government Network on the broad theme of institutional transparency in Scotland and to advance the conversation on this topic. We would like to engage the Network’s members – who are thought leaders on open government – and Scotland’s media – who play a pivotal role in holding the Scottish Government to account – with an exchange of ideas around the challenges in Scotland and shed light on how these might be addressed. We would also like to consider how we might bring the broad skills, knowledge and expertise in the Network together with the wider media to support one another on issues connected to open government.|
|How will the event fit with the Open Government Network’s objectives?|
|A primary aim of the Open Government Network in Scotland is to expand civil society involvement in the open government movement through increasing knowledge and awareness of open government. Through initiating outreach and increasing engagement with Scotland’s media, the Network can better understand how to promote its ideas and serve as a thought leading voice on issues concerning transparency, accountability and participation.|
|Who is the event’s key audience – who are we trying to engage?|
|The meet-up is targeted at journalists, Open Government Network members as well as wider civil society.|
|Deliverables (in order of delivery)|
|Key activity||Deliverable||Completion date|
|Initial contact with Common Space and SCVO||Initial thoughts on ideas||Late June|
|Write Event Initiation Plan||Plan developed||Late June|
|Circulate plan to Open Government Network – Feedback||Feedback given on plan. If approved, continue with activity||Late June|
|Initial contact with media to enquire about interest in meet-up||Interest to go ahead with meet-up||w/c 3rd July|
|Invitation to meet-up circulated||Invitation accepted||w/c 10th July|
|Scoping comms/meetings to understand ground to cover and key outcomes.||Briefing sheet to ensure clear direction||w/c 10th July|
|Moderators briefing||Key questions produced linked to briefing sheet||w/c 24th July|
|Blog on institutional transparency in Scotland||Pushed out through various channels||w/c 24th July|
|Final agenda and paper sent to meet-up attendees||Receive final agenda and paper||w/c 24th July|
|Meet-up||Event takes place||Early August – TBC|
|Review of meet-up||Blog and paper from meeting with clear sense of direction||w/c 14th August|
|Follow up activity||TBC||w/c 14th August|
|Members of Scotland’s Open Government Network
Daily Mail Scotland
Scottish Catholic Observer
Key messages for discussion with Scottish Parliament Public Audit Committee
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:
- The delegation (listed at the Scottish Parliament website) to the Public Audit Committee from the Open Government Network was determined openly with the network
- They will bring different perspectives to the Committee, including two delegates who were signatories of the Letter-SP-PAPLSC.
- They are however not representatives of the Open Government Network, and are representing various interests.
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.
Case for review May 2018
- 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.
- Strong concern that Scottish Parliament agreed to inquire into FOISA back in June 2017, and yet we are still needing to make the case for this. Seems like lots of buck passing within parliament between parliament and government and with the FOI commissioner.
- 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.
- Founding principles of Scottish Parliament specifically set it out to be open and transparent - so robust and trusted FOI is core the Parliament's function and our democracy
Response to review May 2019
Questions from Committee - available at Scottish Parliament website.
1. In your view, what effects has the Freedom of Information (Scotland) Act 2002 (FOISA) had, both positive and negative?
2. Have the policy intentions of FOISA been met and are they being delivered? If not, please give reasons for your response.
3. Are there any issues in relation to the implementation of and practice in relation to FOISA? If so, how should they be addressed?
4. Could the legislation be strengthened or otherwise improved in any way? Please specify why and in what way.
5. Are there any other issues you would like to raise in connection with the operation of FOISA?
|Area of concern||Analysis||Proposal|
|Impact of FOI||Has brought greater awareness to the general public about the need for transparency of information by government
|Scope of FOI||"public authorities" that FOISA applies to are found in Schedule 1.
There is an additional power for Minister's to provide for other bodies to be covered by FOISA under section 5 (1) orders.
This section allows for inclusion of private contractors providing public services or exercise functions of a public nature.
Public services such as prisons and housing are being provided by private services.
Despite consultation and the eventual conclusion that registered social landlords should be included under FOISA, they have not been.
Despite consultation and the eventual conclusion that private contractors providing prison services should be included, they have not been.
Arms Length External Organisations (organisations established by local government, formally separate but subject to control by councils) are used to help deliver public services.
These services range from leisure and health, to identity systems like myaccount (run by Improvement Service a partnership between the Convention of Scottish Local Authorities and the Society of Local Authority Chief Executives, a company limited by guarantee).
ALEOs receive public money and work to improve or help deliver public services.
Yet due to the nature of their structure they are not seen as a "public authority" nor has there been an ALEO designated as one under section 5(1).
There are an estimated 130 ALEOs in Scotland with a turnover of 1.3bn (Source: Audit Scotland: http://www.audit-scotland.gov.uk/report/councils-use-of-arms-length-organisations).
ALEOs can do work for multiple councils. Meaning one freedom of information request that could me made to the ALEO, would need to be made to each council to get a full picture of the operations of ALEOs.
There is more public money going to places where the public cannot access it directly.
Any proposed extension of coverage of FOISA to bodies like private contractors delivering public services should include other forms of public service delivering: ALEO, community planning partnerships, integrated health and social care boards, valuation joint boards, and regional transport partnerships.
|Any proposed extension of coverage of FOISA to bodies like private contractors delivering public services should include other forms of public service delivery: ALEO, community planning partnerships, integrated health and social care boards, valuation joint boards, and regional transport partnerships.|
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