Freedom of information (FOI) has been around in Scotland since 2005 yet it remains underused by Scottish third sector organisations (TSOs), with few applications to the Scottish Information Commissioner (SIC) coming from TSOs.
FOI provides individuals and organisations with the right to access valuable information held by Scottish public authorities (SPAs) by requesting it from them.
Making an FOI request could not be simpler. All a TSO needs to do is to put the request in writing (which includes e-mail), provide a name and address for receiving the information and wait 20 working days for a response. SPAs are entitled to charge a fee of up to £50 for providing access to information, although information is often provided free of charge.
SIC research indicates that TSOs have been slow to utilise FOI for two reasons.
First, some are concerned that making FOI requests might impact their working and funding relationships with SPAs, especially those TSOs heavily reliant on SPA funding. This has meant that some TSOs have made FOI requests through third parties to avoid the request being attributed to the TSOs. Others have not made express reference to FOI within the body of the request, as they consider that doing so could be viewed as aggressive or confrontational. This has resulted in informal routes to obtaining information being preferred, with FOI being the last resort.
The second reason is lack of knowledge, with some TSOs not being fully aware of how to exercise their FOI rights and what FOI entitles them to, including the right to apply to the SIC for a decision on how SPAs handled their requests.
This is unfortunate because FOI is a valuable tool for TSOs to:
obtain further information on SPA decisions affecting their service users, the underlying rationale and to hold officials to account;
highlight an issue of concern and bring it higher up an SPA’s corporate agenda;
use information to improve core service quality for their service users;
help with campaigning and advocacy work and lobby the Scottish Parliament during the law-making process;
access information on service availability;
identify forthcoming policy and legal changes and scrutinise or challenge them; and
work collaboratively with SPAs to improve the quality of public services.
While there are no proposals to extend FOI to TSOs either north or south of the border, information relating to TSOs can be accessed by making an FOI request to the SPAs that hold it. If TSOs wish to prevent disclosure of their confidential and commercial information in response to requests, TSOs can include robust confidentiality clauses in any contracts with SPAs, requiring SPAs to consult with TSOs before disclosure.
If TSOs want to make the most beneficial use of FOI, they must provide staff with training and guidance on framing requests, the request handling process and how to challenge SPAs’ responses at the review and SIC application stages.
Contact us for advice if your TSO is interested in making an FOI request to an SPA . We can help your TSO get the most out of FOI by framing requests in the most effective manner, negotiating disclosure protocols with SPAs on your behalf and challenging SPAs’ decisions on disclosure before the SIC. We also deliver FOI training and webinars.