Scotland slipping behind on FOI laws and transparency, MSPs warned

Scotland is slipping behind other countries on transparency as legislation moves at a “tectonic pace”, the nation’s Information Commissioner has warned.

David Hamilton said the country is not in a “tolerable” situation with its laws and practices around freedom of information.

Appearing before Holyrood’s Standards Committee, he urged the Scottish Government to “keep up” with other countries who have surpassed Scotland in levels of transparency.

Mr Hamilton also criticised the way in which FOIs are responded to, telling MSPs the AI software ChatGPT often provides more “human responses” than public bodies.

However, he said overall the FOI system is in a “very good place”.

In the last 20 years, more than 1.4 million FOIs have been submitted to public bodies in Scotland, 83% of which resulted in some or all of the information requested being provided. In addition, 80% of the requests came in on time.

But he said the law around FOIs must be urgently updated to keep pace with other countries.

He told the committee: “I think the changes to legislation move at, frankly, a tectonic pace, which maybe that’s even too fast.

“It has been a source of great frustration to see things that need to be done not being done.

“One of the parts of my strategic plan was talking about protecting Scotland’s reputation in an international forum and making sure that it was a leader of transparency and freedom of information.

“That is now slipping and that’s because the legislation is ageing and new emerging democracies and regimes are coming through that have got better information rights than people in Scotland.

“It needs attention, and it’s something that I hope, with the private member’s Bill, at least, that that will move forward.

“But it was a great disappointment that the Scottish Government didn’t see that there was a need to change things.”

Scottish Labour MSP Katy Clark is expected to introduce a Freedom of Information Reform (Scotland) Bill to Holyrood.

The proposals include extending coverage to all bodies delivering public services and also increasing accountability by introducing a statutory duty for information to be proactively published.

Mr Hamilton said Scots are suffering an “information deficit” as legislation moves at a slow pace.

He also said he wants to see FOI laws extended to care homes, but changes to legislation have now been held up by the scrapping of the National Care Service.

The Information Commissioner said while Scotland is “good” around FOI laws, it could be “better”.

He said FOI responses are often “too legalistic” and he has asked public bodies to make their answers more accessible.

“We actually did an experiment on using ChatGPT to construct a response that would explain a decision, and it gave a more human answer than many of the responses I’ve seen,” he told the committee.

Mr Hamilton said other countries have improved their FOI laws, and he pointed to South Africa where political parties and some corporations are subject to FOI.

He added: “I think the days of thinking we are pioneers in this and that we can sit back on our laurels – the world is moving on.

“New countries are adopting better, tighter, more expansive approaches and we need to make sure we keep up with that.”

A Scottish Government spokesperson said: “Scotland has the most open and far-reaching freedom of information legislation in the UK.

“We remain committed to our obligations under the Act to ensure openness and transparency and the current level of performance has been maintained in the context of a continued increase in request numbers.”