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An Analysis of the scope of reform of Freedom of Information legislation in Scotland and the rest of the UK

In this article, Christopher Lewis-Laverty, Diploma in Legal Practice Student and Editor-in-Chief of the Law Review, discusses the scope of reform of freedom of information legislation both in Scotland and the rest of the United Kingdom.

The amount of information available to the public either online or by opening Governmental archives is increasing exponentially. We are living in a ‘digital revolution’ where transparency, openness and access to information have never been more important. But information is not only of importance to the public:  it is a necessity for good Government and democracy. Frequently termed the ‘Right to know’, this importance is being recognised globally with more and more democratic countries adopting access to public information laws[1] – so much so it has been described as a major and fundamental human right.[2]

As the leading regulation in this rapidly growing domain, Freedom of Information (‘FOI’) legislation too must update and change in order to tackle this exponential increase in data and information. So far, despite numerous amendments to legislation[3], this has not been achieved. Instead, as the Freedom of Information Act 2000 (the ‘FOIA’) and Freedom of Information (Scotland) Act 2002 (the ‘FOI(S)A’) pass their tenth anniversary[4], they have arguably failed to fully achieve the aims they were created for – that is, a tool ‘to encourage more open and accountable Government by establishing a general statutory right of access to official records and information’.[5] It will be discussed whether or not these ambitious aims have been achieved.

Despite certain weaknesses there has been a noticeable shift in culture among public authorities towards greater openness and accountability since FOI legislation came into force. As certain attitudes towards openness change, the aim of this paper is to analyse the current framework of FOI in Scotland and the UK which are outset against the entrenched culture of secrecy extending back to the 19th century with the Official Secrets Act 1889. Three areas of reform concerning FOI legislation will be submitted in order to increase public confidence in our Governmental system and legislative framework.

In the examination of these issues, primarily the FOIA will be addressed, but as a secondary reference its devolved Scottish counterpart, the FOI(S)A, will be referred to also.[6] 


1. Unrecorded Information and the ‘Chilling Effect’

The general access right to information[7] is given a broad and flexible application, covering ‘information recorded in any form’.[8] This covers all forms of written or stored information such as electronic records, film and reports held by public authorities who then have until the twentieth working day to respond[9] to the request.

Non-recorded information however - such as oral transmissions given by officials but not written down - lacks any protection whatsoever, highlighting a potential loop-hole in the effectiveness of current FOI legislation. Patrick Birkinshaw supports this by saying, “there is also the possible cost of ‘the paperless environment’ where record-keeping is minimised’.[10] Birkinshaw refers firstly to the cost of time in wasted requests for unwritten information outwith the scope of the FOIA. Secondly, this shows in the digital age where information is often transmitted in non-paper formats (such as via webcasts), information will not always be physically recorded, thereby meaning not subject to FOI requests.

This highlights another problem in this domain:[11] there exists a possible ‘chilling effect’[12] imposed on politicians or civil servants attempting to evade political embarrassment, by avoiding formal discussions based on written evidence so that what is discussed cannot be subject to a FOI request. For example, officials may avoid sending emails or written correspondence to one another and instead communicate over the phone or in person, purely to avoid this information being subject to FOI control. This chilling effect is primarily manifested in three forms: a decline in the value of the official record;[13] a decrease in the frankness of advice to ministers; or a reduction in the supply of information to Government from third parties.[14]

Even the incertitude that information may be disclosed constitutes a ‘chilling effect’ resulting in a behavioural change in policy makers, which must be avoided. Case law is not adequately developed for Government officials to be sure what information can or cannot be discussed.[15]

Proposed solution:

Some form of ‘safe space’ is required within which policy can be discussed and recorded with a degree of confidentiality to avoid any possible ‘chilling effect’ arising. ‘Safe spaces’, or safeguards, may arise through the use of exemptions or the ministerial veto. Although these already exist, their effectiveness must be questioned as the chilling effect nevertheless prevails.[16] Even so, by relying too heavily on the constant use of exemptions or the veto, the right to access embodied in the FOIA is weakened and the benefits of transparency are diminished. Thus, a medium between pure confidentiality and transparency must be found. It is the role of the Information Commissioner (‘IC’) to find such a medium, and in continued case-law of the Information Tribunal[17] it has ruled against disclosure in protecting this ‘safe space’. Some think to avoid such uncertainty the UK should copy the approach taken in Australia where ‘Cabinet documents’ are subject to an absolute exemption[18].

Concerning non-recorded information, the example of New Zealand should be highlighted where such information does fall within the scope of the FOIA, as ruled in the case Commissioner of Police v Ombudsman:[19] ‘information… is not confined to the written word but embraces knowledge, however gained or held, by the named bodies in their official capacities [emphasis added]’. Thus, Scotland and the rest of the UK should consider following in New Zealand’s footsteps, based on their successful implementation of using non-recorded information in the FOIA, which in a small but significant way, could widen the scope of FOI legislation and ‘the right to know’, further enhancing the principles of open Government.


2. The Threat of Privatisation to FOI Requests

Schedule 1 of the FOIA lists authorities bound by the Act – those that are not mentioned, simply, are not within its scope. The exception is that certain bodies are partly within the scope of the FOIA, but are also partly excluded – such as the BBC and the Bank of England who only have to conform to certain requests.[20] Section 5 of the FOIA is a tool for Ministers to add to the bodies covered within the Act, and Section 4 allows Schedule 1 to be amended, thereby increasing the Act’s scope. In practice however, these powers have been used infrequently showing the FOIA is to a certain extent out-dated and in need for reform by Ministers in order to bring further bodies within its scope.  

Besides outdated provisions, the FOIA’s scope is being diminished due to privatisation. Responsibility has been transferred from formerly public services to new private authorities, which are often now called ‘arms-length external organisations’ (‘ALEO’s’). Some of these bodies[21] are still under the control or influence of public authorities, be it through funding their operations or councillors sitting on boards running their activities. Indeed, councillors and members of ALEO’s risk potential conflicts of interest in finding a balance between their duties and responsibilities for both the council and the private body.[22] Consequently, although still controlled by the State to an extent, following their transfer to a private organisation in nature, the newly formed private bodies no longer fall within the scope of the FOIA meaning people can no longer successfully make the same FOI requests to them as they once could. These private bodies have no legal duty to respond to these requests, and accordingly the FOIA has had its functions and scope reduced in this respect.[23]

This is a massive problem which has mostly remained unaddressed. A staggering 15,000 tenants in Scottish social housing have lost enforceable FOI rights from their landlord due to the housing association becoming privately operated.[24] Hence the problem of privatisation to public authorities is in reality wide-ranging, being recognised by current Scotland IC, Rosemary Agnew, as one of the main areas of reform needed.[25]

Thus many privatised companies remain outwith the scope of the FOIA due to the changing nature of public services and increase in ALEOs. However, academy schools in England, UCAS, and the Association of Chief Police Officers are now subject to the FOIA and other moves are being taken elsewhere to bring further bodies within this domain – such as Network Rail which was reclassified as a public sector body from the 1st of September 2014. Yet many public-functioning bodies still remain beyond the reach of the FOIA[26], meaning further progress is required. With the Freedom of Information (Amendment) Bill 2014-2015 private healthcare companies and other bodies seeking health service contracts have been brought within the scope of the FOIA. Beyond this 2015 Amendment, the Government’s lack of action in bringing other private authorities with a ‘public nature’ under closer scrutiny (through a section 5 Order or otherwise) has reduced the effectiveness and credibility of the FOIA further.[27]

Proposed solution:

It is submitted that a functional approach should be taken, extending the FOIA to take into account the nature of the functions or types of bodies that serve the public, instead of (or alongside) the current list-based approach and blanket FOI application on ‘public authorities’. This would help in keeping updated with changes in the delivery of public services, and automatically include new services if they carry out some form of public function. Many more bodies would be brought within the scrutiny of the public, thereby increasing accountability in the way services are run, as well as improving transparency and openness in several areas of society.

Difficulty would remain in determining exactly what constitutes ‘public in nature’ but parallels can be drawn from the Human Rights Act 1998 (Meaning of Public Function) Bill which takes into account 8 different factors in determining if a service should be considered public in nature.[28] Further, it would also be advantageous to have a set list of ALEOs in existence and Section 5 designees still to be created, to ensure that support can be given and learning shared. This idea has recently been approved by the Scottish IC[29].


3. The Public Authority Only Considers Currently Held Information

Pursuant to section 1(4) of the FOIA, if an applicant applies to a public authority for a decision or appeal, the authority will consider only the information which is held at the time of the request. This means even if the authority becomes aware of any new relevant information coming to light following the date of the request and before the application is returned (potentially twenty working days later), they are under no obligation to inform the applicant of this. The only way around this is for the applicant to submit a new request for the information at a later point, if they think the information latterly comes to the authority’s attention.

This has been a problem in practice, seen through the example of the IC’s decision in Mr James Bell and Central Scotland Fire Board.[30] Here the requested information was not initially available (but latterly became accessible) raising a dispute between the parties involved on whether the information should or should not be disclosed. Eventually, despite being under no obligation to do so, the authority decided to disclose it. Not only did this constitute a waste of time for all parties involved (which could have been made worse had the authority not volunteered the information) but highlighted a flaw in the system of FOI that needs to be addressed. Section 1(4) FOIA therefore increases the work-load of the authorities by opening themselves up to receiving more requests than is necessary, and in turn, decreases the overall efficiency of the Act.

In relation to this, there is also a threat from information being destroyed before an applicant has access to said information.[31] This may involve technical failures of storing electronic data,[32] or information being destroyed on purpose, however section 1(5) of the FOI(S)A provides against this.[33] Sometimes deletion has been done in error resulting in the IC requiring the authority to review its procedures.[34]

Proposed solution:

Concerning information only being considered at the time of sending, it is submitted that this should be changed in order to include information made available even after the date of application. The new date of consideration should be the latest point possible i.e. when the authority is returning the application, in order to increase the effectiveness of the FOIA as a whole. Arguably this too would increase the work-load and efficiency of the authority involved as they may have to constantly check if the requested information has been made available, however in terms of efficiency this satisfies the purpose of the Act[35] in the first place so should be carefully considered.

To avoid the deletion of important information we should have statutory provisions on what information should be kept to avoid anything important being deleted. Although guidance exists on what should be kept in the form of a Code of Practice issued by the Lord Chancellor,[36] or advice from the IC’s website,[37] uncertainty still remains over what public authority officials are allowed to destroy - no clear amendment or provision has ever been created to address this entirely. Moreover, the current guidance recommends authorities establish a disposal schedule for records, but never precisely says what this is. If a more coherent and structured practice was in place, members of the public would know exactly when and for how long they could access certain information, thereby improving clarity in the law and reducing undue uncertainty.[38]



FOI has been rapidly reformed in the past 20 years, decreasing secrecy in Government and improving its accountability, however much still remains to be done to remove closed systems of Government in order to introduce more open and participative systems. Means by which the scope of the FOIA should be widened have been submitted in order to ensure the long-lasting usefulness of the Act goes beyond academics and members of the media. Success depends upon the extent to which the public appear willing to make use of the FOIA and continue to press for more information.

The FOIA provides some protection but further reforms are needed before a fully open Government can be achieved; and due to the nature of the legislation, it is one that must be continually monitored and reviewed to adapt to changing needs. The system is not perfect and areas of reform have been identified.


[1] Starting with Sweden adopting the Freedom of the Press Act in 1766, and more recently, China implementing Freedom of Information regulations in 2008.

[2] In the case Claude Reyes et al v Chile [No. 151, 19/09/06] Article 13 of the American Human Rights Convention was interpreted for the first time to provide a right to information.

[3] For instance the Freedom of Information (Amendment) (Scotland) Act 2013; and the Freedom of Information (Amendment) Bill 2014-2015 (addressed below).

[4] Both introduced on the 1st of January 2005.

[5] White Paper ‘Your Right to Know: The Government’s proposals for a Freedom of Information Act’; 1997; Cm 3818; p9.

[6] Although the FOI(S)A was created to mirror the FOIA several differences exist, such as terminology (i.e. ‘applicant’ in Scotland, and ‘complainant’ in the UK Act) and the tests for exempt material. In analysing reform in the FOI domain the analysis in general will relate to both Acts, unless otherwise stated.

[7] S.1(1) FOIA and s.1 FOI(S)A.

[8] S.84 FOIA and s.73 FOI(S)A.

[9] S.10 FOIA and s.10 (FOI(S)A; the National Archives have a slightly longer limit of 30 days to respond. Further, these 20 days can be extended where the authority is relying upon a public interest not to disclose.

  1. P Birkinshaw; Freedom of Information: the law, the practice, the ideal; (2nd edition); (Cambridge University Press, 1-04-2010); p49.

[11]As highlighted in Post-legislative scrutiny of the FOIA 2000; House of Commons Justice Committee; (1st report of 2012-13, Volume 1; HL 96, July 2012); p54 §142.

  1. Defined as ‘a shift towards keeping things off paper where they cannot be disclosed’ (R Hazell et al; The Impact of the Freedom of Information Act on Central Government in the UK: Does FOI Work? (Palgrave Macmillan, August 2010; p162).

[13] This makes it harder for historians or those wanting to refer back to older records to have access to full and accurate information.

[14] As seen in EA/2007/0072: Department for Business, Enterprise and Regulatory Reform v Information Commissioner and Friends of the Earth; 29-04-2008.

[15] House of Commons Justice Committee; Post-legislative Scrutiny of FOIA (cited above); p63.

[16] The Constitution Unit dispute that the chilling effect exists however, hence this is an area lacking consensus (The Impact of the FOIA on Central Government in the UK – Does FOI Work? (cited above); p164.

[17] E.g. decision EA/2014/0012: Jonathan Corke v the Information Commissioner; 15-05-2014.

[18] House of Commons Justice Committee; Post-legislative Scrutiny of FOIA; (cited above); p68.

[19] [1985] 1 NZLR 578, [1988] 1 NZLR 385.

[20] ICO report: Public authorities under the FOIA (available at

[21] Such as sports facilities, cultural buildings or housing associations.

[22] Audit Scotland (2011) report: Arm’s length external organisations (ALEO’s): are you getting it right? (available at; p3.

[23] Scottish Information Commissioner Report; FOI 10 years on: are the right organisations covered? (January 2015) p6.

[24] Ibid; p3.

[25] Ibid; p8.

[26] E.g. prison contractors which although privately run, exercise functions of a public nature and should therefore also be subject to the FOIA. 

[27] The Cabinet Office Efficiency Reform Group (ERG) has also called for the FOIA to be extended to public-private contracts (Report available at

[28] Including ‘the extent to which the state has assumed responsibility for the function in question’.

[29] FOI 10 years on: Are the right organisations covered? (cited above); p17.

[30] Decision 046/2006.

[31] Decision 150/2011: Mr Z and the Scottish Prison Service.

[32] Ibid.

[33] However no explicit provision similar to this is contained in the FOIA.

[34] Decision 080/2008: Mr Frank French and the Scottish Public Services Ombudsman.

[35] Supra no.5.

[36] S.46 of the FOIA states the Lord Chancellor shall issue a Codes of Practice on the keeping, management and destruction of records.

[37] Advice and recommendations currently exist on the IC’s website stipulating procedures of when records should be retained or destroyed – however none of this is binding.

[38] EA/2005/0001: Harper v. the Information Commissioner and the Royal Mail §17; 15-11-2005 states at what stage an authority has committed an offence in this regard.


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