Viktoria Akerø-Stueland
Can the Freedom of Information Act Effectively Secure Government Accountability in Scotland?
This article critically evaluates the effectiveness of the Freedom of Information (Scotland) Act 2002 (FOISA) in securing government accountability in Scotland. First, it explores the relationship between freedom of information and government accountability, arguing that the former is a necessary precondition for the latter. The most important factors necessary to ensure that freedom of information effectively generates government accountability are outlined. Thereafter, these are applied to the context of the FOISA regime, addressing its main strengths and weaknesses. The article concludes that while the conditions are present for the FOISA to generate government accountability, the Act should be amended to provide a more robust right to freedom of information. The pro-disclosure environment of Scotland should also be strengthened to ensure that individuals are empowered to use the FOISA to secure government accountability.
Relationship between Freedom of Information and Government Accountability
Freedom of information is a necessary precondition for government accountability. Without information, accountability will merely be the "shadow of an idea". Freedom of information delivers more deliberative and participatory democracy as it allows for meaningful public engagement with the government, which can therefore be held to account.
The World Bank has termed this a "virtuous cycle of transparency": information exposes policymakers' activities and facilitates oversight. As a result, "activism rises and with it the level of public debate". Policies can be contested and citizens are motivated by the possibility of accountability. Communication with the government becomes a "two-way flow", facilitating further demands and reliable information. The cycle is completed as government practices become more open and responsive to citizens.
Empirical evidence from across the globe supports the existence of a positive correlation between freedom of information and government accountability. Freedom of information has been instrumental in exposing and holding governments accountable for human rights abuses and has, therefore, been characterised as an "enabler right" and the "touchstone for all freedoms".
Factors Ensuring Government Accountability
Various factors must be in place for freedom of information legislation to effectively secure government accountability. To critically evaluate the effectiveness of the FOISA in generating government accountability, these factors are outlined and thereafter discussed in the context of the Act.
A Robust Right to Freedom of Information?
Meaningful government accountability can only be achieved through accessible and reliable knowledge of government actions. The key to the effectiveness of freedom of information legislation is the ease, affordability, and promptness in providing information to requesters. Freedom of information legislation is of limited effect if it is "inaccessible to most of the community". The law should establish "clear and uncomplicated procedures" for information requests that ensure timely responses from public bodies.
Prima facie, the FOISA's process for requests, is simple and accessible. Anyone can lodge a request, as per Section 1 FOISA, and Section 8 outlines the requirements: a brief explanation of the information requested, the name, and the address for correspondence. A request can be made in any form, per Section 8, and, public bodies must respond to the request within 20 working days, under Section 10.
There are, however, concerns that the process has become too "technical and legalistic". The Campaign for Freedom of Information Scotland states that this is partly a result of the assumption that successful requests must be treated "as if they may end up in court". While the Scottish Information Commissioner has published guidance on most aspects of the FOISA process, more resources should be devoted to inform the public on how to craft successful freedom of information requests and disprove the false assumption that this requires legal assistance.
A Pro-Disclosure Environment?
As Dunion, the first Scottish Information Commissioner, has recognised: "legislation only takes us so far". The FOISA must be accompanied by a pro-disclosure environment, wherein individuals are empowered to exercise their right to freedom of information, in order for it to effectively generate government accountability.
Public awareness of the legislation and tools that empower its use are crucial components of a pro-disclosure environment. About 636 applications were made to the Scottish Information Commissioner in the first year of its operation, which is more than double the highest estimate of a study conducted. Furthermore, the number of information requests is rising yearly. The Scottish Information Commissioner has concluded that this increase is likely due to greater awareness of the power freedom of information holds in generating government accountability and generally positive attitudes towards the FOISA. This frequent and widespread use of the FOISA, coupled with the positive attitudes towards and awareness of the legislation, indicates that a pro-disclosure environment does exist in Scotland.
However, evidence also suggests that this pro-disclosure environment is limited. A challenge in adopting a more open culture has been intimidation. Warnings about consequences of sharing information and "alerts that [requesters] must comply with 'copyright law' and the 'Open Government Licence''' have been included in freedom of information responses to deter requesters from sharing the information disclosed to them. For the FOISA to effectively secure government accountability, it is crucial that individuals are empowered rather than deterred from exercising their right to share information disclosed to them with the public. As noted by the Campaign for Freedom of Information Scotland, the public must be reassured that it is their right to share the information and that no legal consequences will be incurred. This can be done, for instance, through public information campaigns carried out by the Scottish Information Commissioner which have proved successful in the past.
Public Watchdogs
This section discusses the extent to which civil society is capable of and empowered to exercise their right to freedom of information through the FOISA, and the impact of this for government accountability. An engaged civil society, with an active media sector, characterises a pro-disclosure environment. The role of the media in "scrutinising government actions [...] to expose mismanagement and corruption and demand accountability", is what underpins Norris' conception of the media as a "watchdog".
The European Court of Human Rights has confirmed the importance of a right to freedom of information of the media and third sector. The vital role of these actors in facilitating the public's right to impart information once disclosed has been repeatedly recognised by the Court. Information in the hands of journalists is likely to be distributed to a wide audience and used strategically to result in a significant impact on accountability. For the FOISA to generate government accountability, public watchdogs must not be prevented from accessing information.
The FOISA is "applicant and purpose blind", requiring requests to be considered equally, regardless of who is requesting the information or the purpose of the request. It is important that this is upheld in practice. Requests, specifically from the media, for information "inevitably come up against the almost natural instinct of the state to obscure its workings and retain its powers". An open letter by journalists in 2017 highlighted that freedom of information requests from journalists had been differentially treated. Requests had been blocked or refused by Scottish Government officials for tenuous reasons and screened for political damage by special advisers.
In response to these concerns, the Scottish Information Commissioner carried out investigations into the freedom of information practices of the Scottish Government, which culminated in a report published in 2018. The report revealed that journalists had been "expressly made subject to a different process for clearance than other requester groups". Their requests were "almost invariably subjected to an additional layer of clearance [...] likely to delay the consideration of the case", and media requesters were significantly less likely to receive information.
The Scottish Information Commissioner provided recommendations to improve the Scottish Government's freedom of information practice, including reviewing its clearance process, ending its practice of differential treatment, and ensuring sufficient training of freedom of information officers. Several steps have been taken to ensure compliance; for example, the creation of a new process for the clearance procedure of freedom of information cases of which the Scottish Information Commissioner has approved. The difference in treatment between journalists and others narrowed considerably in 2017 and 2018. While this is an important development for maintaining a pro-disclosure environment in Scotland, this gap must be closed to increase the FOISA's effectiveness in securing government accountability.
For the FOISA to effect a strong positive correlation between freedom of information and government accountability, the legislation must provide a right to freedom of information with few restrictions. Any restriction to the right must be monitored and unlawful restrictions should be deterred by strong enforcement. Its effectiveness further hinges on the extent to which it operates in a pro-disclosure environment where individuals and civil society actors are empowered to use the FOISA to demand government accountability.
The FOISA provides a simple process for requesting information, but the impression that legal assistance is required to lodge a successful request must be challenged. While the process is prima facie accessible to all, the timely and costly appeals system must be reformed.
The widespread and frequent use of the FOISA, the commitment of journalists to guard the FOISA against dilution, and the generally positive attitudes towards the Act signal that the FOISA, to a large extent, operates in a pro-disclosure environment. However, measures must be taken to combat intimidation and empower individuals, the media, and wider civil society to use the FOISA as a tool to demand accountability.
While currently, the FOISA can generate government accountability to a significant extent, reformed laws and measures to promote a sustainable culture of transparency will prove crucial to increase the FOISA's effectiveness in securing government accountability in Scotland.