The Scottish Government has always been more willing to extend the scope of FOI legislation than its counterpart in London. Back in 2014, it extended the application of  the Freedom of Information (Scotland) Act 2002 (FOISA) to organisations created by councils to deliver leisure and sporting facilities and in 2019 to registered social landlords. 

More recently though, the Scottish Government has been criticised for refusing to accept suggestions to extend the FOI regime to all bodies providing public services, including social care providers, following a consultation. Opposition MSPs described the decision as “utterly undemocratic” and accused ministers of secrecy.
The Scottish Information Commissioner has also called for reform.  

On 2^nd June 2025 MSP, Katy Clark, laid a Private Member’s Bill in the Scottish Parliament which, alongside extending the scope of FOISA, contains a number of provisions to refresh and update the legislation. These are explained in full here. 

We list below the provisions of the Bill which caught our eye:  

Section 1 – General entitlement 
Introduces a presumption in favour of disclosure when public authorities are considering whether an exemption applies. This would apply to all exemptions, apart from the small number of “absolute” exemptions. 

Section 3 – Publicly-owned companies 
Addresses an anomaly in FOISA to ensure that companies which are jointly and wholly owned by the Scottish Ministers and another public authority are covered. 
 
Section 7 – Time for compliance 
Amends FOISA so that the 20 working day response time is paused, rather than reset, when clarification is requested and received.  It also removes the time extension which is currently available to grant-aided and independent special schools during holiday periods. 

Section 12 – Enforcement Notices 
Gives the Commissioner the power to issue enforcement notices in relation to failures to comply with the FOISAs codes of practice. 

Section 13 – Ministerial Veto 
Removes the First Minister’s power to veto decisions of the Scottish Information Commissioner in some circumstances. 

Section 15 – Proactive publication duty and publication code 
Reforms the FOISA approach to proactive publication, requiring that an authority proactively publishes up-to-date information relating to its functions in an accessible way. Section 15 also gives the Commissioner the power to issue a publication code of practice, and requires that public authorities comply with that code. 

Section 16 – Freedom of Information Officer 
Creates a statutory requirement to appoint an FOI Officer within public authorities. He/she would be responsible for ensuring the fulfilment of a number of duties, including staff training, advising on compliance with FOISA and the codes of practice, and reporting to senior management. 

Section 18 – Offence Amendment 
Enables prosecutions to be taken forward in circumstances where information has been destroyed to prevent disclosure under FOISA, without requiring that an information request for the information has been made.   

Section 19 – Time limit for proceedings 
Changes the time limit for bringing a prosecution for the deliberate destruction or concealment of records to three years from the beginning of a criminal investigation, rather than three years from the date of the offence. 

The Bill contain some interesting proposals (e.g. introducing the FOI Officer and new time limits) but it will be interesting to see if, as a Private Member’s Bill, it makes it on to the statute books.  

The Scottish Information Commissioner, David Hamilton, has welcomed the Bill, noting that “after twenty years, it’s undoubtedly time for a refresh… by taking action to protect and update FOISA now, we can ensure that our vital right to hold public bodies to account remains fit-for-purpose for the future”.  

Are you looking to develop your FOISA skills? The Act Now Practitioner Certificate in Freedom of Information (Scotland) is designed for FOI practitioners wishing to demonstrate that they have the knowledge and skills to handle FOISA requests and implement related information access legislation in Scotland.  

Author: actnowtraining

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