SCVO response to FoI Reform Bill consultation (Katy Clark MSP)

About our response

SCVO takes transparency and accountability of voluntary organisations seriously, as well as issues that could have potential risks for the voluntary sector in Scotland. We have undertaken substantial scoping work and engagement with voluntary organisations to inform our position on Freedom of Information (FoI) extension, which includes:

• Reviewing and analysing responses and submissions to previous consultations.
• Holding one-to-one meetings with different parts of the sector to shape our approach.
• Arranging a well-attended webinar to give proponents of FoI reform the opportunity to share views, and holding two interactive focus groups with voluntary organisations.
• Sharing our draft response for two weeks to secure broader input from the voluntary sector, including with our 3,000+ members.
• Securing feedback and insight from bodies currently covered by FoI, and legal experts.

Our position

SCVO welcomes the opportunity to respond to this consultation on proposals to introduce a Freedom of Information (FoI) Reform Bill. We use this opportunity to present the case for maintaining and strengthening information rights in symmetry with protecting and supporting the vital role that voluntary organisations play throughout Scotland. Our response relates directly to question 7 of the consultation.

There is a strong consensus within the voluntary sector that transparency and accountability are paramount, and voluntary organisations should approach related proposals with an open mind to find viable solutions. However, there is an equally strong sense among voluntary organisations that this consultation's purpose is to extend FoI legislation at any cost rather than finding balanced and proportionate solutions to maintaining and enhancing access to information rights. 

The Scottish Government already holds powers to extend FoI, which, when used, are shown to work effectively. While some voluntary organisations actively advocate for a much wider mechanism for extending FoI, the overwhelming message from the voluntary sector is that the proposal to extend FoI in the broad, one-size-fits-all manner set out is not feasible or realistic, as it fails to deliver targeted and proportionate regulation across a unique sector. This means the position that best expresses SCVO's view of the proposed bill (question 5) is 'partially opposed' to the proposals in their current form.

The focus should also be on maintaining and strengthening the duties of the contracting authority to respond to FoI requests about a service that a voluntary organisation delivers. In most cases, we can achieve continuity in rights under FoI law by developing existing governance and processes, such as expanding the definition of information that a contracting authority can be reasonably expected to hold and request from suppliers.

Charities are in a running costs crisis, with organisations closing their doors and others facing a perfect storm of rising costs, reduced donations, and funding and contracts that either remain static or disappear altogether at a time of rising demand. The Scottish Third Sector Tracker reveals this has affected the ability of one-in-five organisations to deliver their core services or activities at a time when 89% of organisations providing services to the public highlight that their communities’ needs are worsening.

SCVO recognises the critical importance of transparency and accountability. Still, we also understand the practical limitations of implementing FoI proposals and the potential impact on resources that voluntary organisations must carefully manage to deliver vital services. Our response takes account of this and seeks to move the discussion forward flexibly and pragmatically.

Our recommendations

SCVO supports the public policy aim of maintaining and strengthening people's access to information rights…

Developing the right strategy to achieve this must arrive at a proportionate and practical approach. We focus on the specific proposal in the consultation to extend the coverage of the Freedom of Information (Scotland) Act to voluntary organisations delivering services of a public nature and receiving public funding for what they deliver.

Policymakers must develop tailored solutions that have a clear purpose to ensure that voluntary organisations continue to play their part in access to information rights…

Charities are calling on policymakers to give greater thought to the real purpose of extension and to focus on tailored, proportionate, and financially viable solutions that meet those aims. SCVO is not convinced that a broad, one-size-fits-all approach to designating voluntary organisations is the only option or the best option available to policymakers. A disproportionate or one-size-fits-all approach would place unnecessary burdens on charities, divert resources from frontline services, create uncertainty, and leave organisations open to malicious use of FoI.

The following approach should be taken to review, design, and implement regulations relating to access to information rights…

SCVO supports efforts to maintain and strengthen people's access to information rights and wishes to work constructively with partners to find the right solutions. This response puts forward a proportionate and practical approach to policy development that would deliver improvements to benefit groups in society and society at large. Our recommendations are:

1. Regulatory policy must be joined up, provide certainty to charities, and secure the future of vital services and support that people across Scotland rely upon.

SCVO supports proportionate regulations that can provide the stable foundations upon which voluntary organisations can thrive. Charities already comply with various regulatory models and any proposals to extend FoI should factor in the multiple layers of regulation and regulatory change for their interdependencies. The forthcoming independent review of charity regulation will help policymakers to do this. 

RECOMMENDATION: Policymakers should engage with SCVO’s call for an independent review of charity regulation in Scotland, which is one step closer following the Scottish Government’s commitment to a comprehensive review. This is an ideal place to shape what a modern, fit for purpose, and joined-up regulatory model should look like and to identify gaps and overlaps in accountability.

2. Reform of access to information rights should not forego the vital role that voluntary organisations play throughout every community in Scotland.

The consultation paper suggests that organisations need not apply to deliver services if they cannot comply with FoI in the form proposed. Voluntary organisations are very concerned with this, as regulatory change should not seek to establish barriers that could cause harm to people and the services they access. Indifference towards the value of voluntary organisations is not shared by those who rely on their services.  

RECOMMENDATION: Policymakers should approach any reform of the Freedom of Information (Scotland) Act in a manner that does not cause harm to people and the voluntary sector services upon which they rely. Policymakers must design regulations that support the vital role that voluntary organisations play throughout every community in Scotland.

3. Definitions and parameters should be apparent in proposals to extend freedom of information coverage so voluntary organisations know what the proposals mean for them.

Proposals within this consultation paper and discussions with voluntary organisations reveal confusion around the aim of designating voluntary organisations and who and what might be subject to FoI within the broad bracket of organisations that are ‘publicly funded and [if] the service is of a public nature’. The lack of clarity has made it challenging for organisations to understand the potential impact on the sector.

RECOMMENDATION: Clear definitions and parameters should accompany any proposals to extend freedom of information coverage, to ensure that voluntary organisations are clear about the proposals they are to consider and understand how they will impact their organisation and those they support.

4. There is a need to appraise multiple solutions – including designating voluntary organisations – and their costs/benefits to find a balanced and practical outcome.

The benefits of delivering any public policy result in financial and other costs elsewhere and maintaining and strengthening access to information rights is no exception. Existing powers to extend FoI and the proposal in this consultation paper sit at one end of the spectrum where risk is transferred from public bodies to voluntary organisations by outsourcing FoI duties.  

RECOMMENDATION: A robust options appraisal that explores the costs/benefits of potential options for maintaining and strengthening access to information rights is necessary to arrive at a combination of well-balanced, effective, and practical solutions. Policymakers and voluntary organisations must understand any trade-offs before a course of action is taken.

5. The Scottish Government should assess and, if needed, strengthen existing Section 5 powers to designate authorities, as these powers work when used.

Aside from their limited use, there is no substantial evidence that the current legislation and Section 5 powers to extend FoI do not work when used. It is logical to strengthen existing powers that work when applied and when necessary, especially when they offer a targeted, proportionate, and factors-based approach to extension.

RECOMMENDATION: Policymakers should review the Scottish Government's existing Section 5 powers to designate other bodies within the scope of freedom of information. If there is a need to strengthen these to allow for timelier and more consistent use of existing powers, they should adopt improvements here first.

6. The Scottish Government should use Section 5 powers only when achieving continuity in individuals' rights is impossible through existing governance and processes.

Maintaining and strengthening the duties of the contracting authority to respond to FoI requests about a service that a voluntary organisation delivers, coupled with a standardised approach to voluntary organisations proactively publishing information, would benefit voluntary organisations, people, and the public purse. In most cases, we can achieve continuity in individuals' rights under FoI law by developing existing governance and processes.

RECOMMENDATION: Strengthen current structures that allow the sharing of information between the service provider and contracting authority, who should retain the responsibility to respond to individual information requests about a specific service, unless there is an evident loss of rights by doing so. Explore a standardised approach and clearer expectations on voluntary organisations to publish information proactively.

7. A tailored support model must accompany any targeted and proportionate plans for extending FoI to voluntary organisations.

Even targeted and proportionate extensions of FoI to voluntary organisations will raise major concerns if policymakers fail to grasp the reality of the operating environment. It is disappointing that the consultation paper does not assess the potential impact on charities or put forward a range of practical solutions to overcome known concerns around partial coverage, costs and administrative burdens, malicious use of FoI, or commercial sensitivities and how these issues play out in a voluntary sector setting.   

RECOMMENDATION: Policymakers must find practical solutions to the challenges of extending existing FoI legislation by engaging voluntary organisations at the early stage of policymaking; this will help to ensure that unnecessary financial and non-financial costs and obligations are not put upon Scotland's voluntary sector.

RECOMMENDATION: Any proposal to specifically designate voluntary organisations must have clear parameters. Measures should take account of the mixed funding environment that organisations experience and put in place protections to prevent misinformation that causes harm to those organisations and the wider sector.

RECOMMENDATION: Where there is a clear evidence-based case for designating voluntary organisations under FoI, a robust funding model must be put in place to support new regulations, to ensure that voluntary organisations do not need to direct their resources away from front-line delivery.

RECOMMENDATION: Were any voluntary organisation to be designated under FoI, policymakers should collaborate to agree on an approach that protects them, their staff and volunteers, and the people they support from malicious requests for information. This should include exemptions where there is a clear risk of harm.

RECOMMENDATION: Policymakers must base their decision to classify certain information held by voluntary organisations as commercially sensitive on the context in which voluntary organisations operate and their need to compete with private sector organisations and other voluntary organisations for public contracts.

Our response

SCVO welcomes the opportunity to respond to this consultation. We have undertaken significant engagement with voluntary organisations to inform our response. In this paper, we focus on the specific proposal to extend the coverage of the Freedom of Information (Scotland) Act to voluntary organisations and other bodies delivering services of a public nature and/or receiving public funding. 

SCVO supports the public policy aim of maintaining and strengthening people's access to information rights. Developing the right strategy to achieve this must find a balance that protects voluntary organisations' financial, operational, and reputational resilience. Decision-makers should explore all options to find a proportionate and practical approach that delivers on both fronts.

The overwhelming message from the voluntary sector is that the proposal to extend FoI in the broad form set out is not feasible or realistic. However, there is an equally strong view that transparency and accountability are paramount. Charities are calling on policymakers to give greater thought to the real purpose of extension and to focus on tailored, proportionate, and financially viable solutions that meet those aims. This means the position that best expresses SCVO's view of the proposed bill (question 5) is 'partially opposed' to the proposals in their current form.

We are always keen to explore ways to strengthen trust in the voluntary sector and welcome debate and solutions that enhance transparency and accountability. Our long-term call for an independent review of charity regulation in Scotland is a sign of our commitment to improving the regulatory environment that our members are not only subject to but upon which they and members of the public rely.

Therefore, it is right that SCVO approaches this discussion with an open mind. However, as with any regulation, new regulations relating to maintaining and strengthening access to information rights must show evidence of being designed with those to be regulated in mind. We hope the analysis and recommendations we set out in this paper make that an easier task; our response relates directly to question 7 of the consultation.

1. Regulatory policy must be joined up, provide certainty to charities, and secure the future of vital services and support that people across Scotland rely upon.

SCVO has consistently championed the role of regulation in fostering a landscape in which voluntary organisations can operate effectively through good governance and with high levels of public trust and confidence. Charities and other voluntary organisations need the right conditions to deliver on their missions, and well-formed regulations form a crucial part of this and are central to a thriving voluntary sector. The landscape of charity regulation and oversight is incredibly complex, and charities are already highly regulated. We want to see policymakers ensure that existing rules and new measures are fit for purpose, proportionate, and minimise gaps and overlaps in accountability.

The Scottish Government has recently published the Charities (Regulation and Administration (Scotland) Bill to update and strengthen existing Scottish charity law. SCVO supports this legislation and is seeking the government to go further. Still, voluntary organisations must comply with many other legal requirements and standards for governance and financial management. The entire sector will fall under different regulatory regimes, such as those of the Information Commissioners Office (ICO). Organisations operating in specific industries or carrying out certain functions will also be subject to additional regulatory requirements, such as those that fall under The Care Inspectorate, The Financial Conduct Authority (FCA), and the Fundraising Regulator or the Scottish Fundraising Adjudication Panel. These are a few regulatory regimes that charities must comply with, and it is far from an exhaustive list.

There is a need for a nuanced and tailored approach to any changes to freedom of information legislation and a recognition of the challenges the voluntary sector faces. Voluntary organisations are not public bodies with the infrastructure to absorb any new FoI responsibilities. They are in a different position than private sector delivery bodies, which are in a better place to soak up additional costs by using other income streams to plug gaps. Charities delivering public services are already massively underfunded for their work, and a disproportionate, ambiguous, or inefficient extension of FoI will impede charities that provide vital services.   

We welcome the Scottish Government’s commitment to SCVO’s call for a comprehensive review of charity regulation; this could provide the opportunity to resolve many of the issues that the proposal to extend FoI is seeking to address. Regulation is essential, but the reality is that additional regulations come with a cost of compliance – both financial and non-financial – and policymakers must ensure they assess the multiple layers of regulation and regulatory change for their interdependencies to ensure they are proportionate and that they do not stifle the operating environment. An independent review is the right place to understand the multiple layers of regulation and to address gaps and overlaps in accountability. 

RECOMMENDATION: Policymakers should engage with SCVO’s call for an independent review of charity regulation in Scotland, which is one step closer following the Scottish Government’s commitment to a comprehensive review. This is an ideal place to shape what a modern, fit for purpose, and joined-up regulatory model should look like and to identify gaps and overlaps in accountability.

2. Reform of access to information rights should not forego the vital role that voluntary organisations play throughout every community in Scotland.

We agree that there should be no harm or damage to the rights of people accessing public services delivered by private and not-for-profit organisations, which is why we make proposals to ensure that people can benefit from these information rights, regardless of who provides the public service. How we approach any reforms to extend freedom of information cannot be to the detriment of the public and quality of public services, and certainly not to those who rely on these services; new regulation should drive up the quality of public services. SCVO is concerned by the line in the consultation, 'If a potential provider does not wish to be covered, they need not tender.' Unfunded and unsupported demands placed on organisations will likely lead to such outcomes.

Regulation should not establish barriers that could undermine people in other ways and the services upon which they rely without carefully designing mechanisms to prevent this. We do not want to see public authorities with less competition for contracts or more contracts going to private sector organisations that are in a better position to absorb costs due to their size and flexibility to use other income sources. As an example, the STUC's report, 'Profiting from care: Why Scotland can't afford privatised social care,' highlights how private care provision in Scotland differs systematically from other types of provision and why care '…must be based on a not-for-profit public service, delivered through local authorities with an ongoing role for the voluntary sector.’ This consultation paper also references the report and highlights the positive difference found in not-for-profit care homes compared to those run by private providers.

SCVO and those calling for reforms can only know what would happen if policymakers were to extend designation under FoI to voluntary organisations with a robust and independent impact assessment published alongside proposals. However, the suggestion that voluntary organisations need not tender misses the point of what freedom of information is about, improving quality and outcomes. Voluntary organisations provide tailored support in local communities, deliver vital services and work with some of Scotland's most marginalised communities. Access to information regulations must not create disproportionate barriers, and achieving continuity in individuals' rights under FoI law can be done in a manner that does not have to be a barrier.

Regulation can be essential in improving the quality of services and outcomes. Still, so can having increased choice where no single organisation or type of organisation has a significant market share and where barriers to entering the market for those that deliver specialist services are removed rather than created. It is government policy to work towards eliminating barriers to participation in public procurements, especially for small and medium enterprises, including voluntary organisations. Yet, there is no mention of this under 'procurement' in the 'potential impacts of the proposed bill.' We put forward our recommendations to maintain and strengthen people's access to information rights in a manner that does not conflict with efforts to remove significant barriers to the participation of voluntary organisations that limit the pool of organisations tendering for contracts.

RECOMMENDATION: Policymakers should approach any reform of the Freedom of Information (Scotland) Act in a manner that does not cause harm to people and the voluntary sector services upon which they rely. Policymakers must design regulations that support the vital role that voluntary organisations play throughout every community in Scotland.

3. Definitions and parameters should be apparent in proposals to extend freedom of information coverage so voluntary organisations know what the proposals mean for them.

Whether policymakers should designate under FoI voluntary organisations that are ‘publicly funded and the services is of a public nature’ requires a more nuanced response than yes or no. Parts of this consultation paper refer to contracted public services, other sections refer to grants, and sometimes the focus is on public funding. The consultation paper says that an aim is to ‘extend FoISA to those bodies delivering public services, services of a public nature and publicly funded services.’ The question and content of this consultation paper, as it stands, could mean all manner of coverage, making it difficult to understand the parameters of the proposal.

Given that charities must pass the public benefit test, any public funding that goes to charities will benefit a group in society or society at large. Voluntary organisations need more clarity about whether the proposal would only cover contracts – where public money is exchanged to deliver a public service and fulfil the contracting authority's obligations – or whether it would also cover grant funding. Definitions and clear parameters are essential as how and why voluntary organisations receive public funding is complex.

The lack of clarity around definitions of what would and would not be covered by such a broad proposal to extend FoI raises significant concerns, not least those relating to very small, largely volunteer-run organisations. For example, local community groups that might not be charities can apply for public funds for a range of issues. Were FoI to be extended to such organisations, smaller groups may be put off from applying for public funds, would require significant additional support from intermediary organisations, and may struggle to meet the requirements.

Supposing that this public policy proposal aims to extend FoI to secure the continuity of rights, the proposal should refer only to delivering outsourced services via contracts with organisations taking on an explicit function of the state in return for money. Whilst we are of the belief that designating voluntary organisations is not the best way to maintain and strengthen access to information rights in these circumstances, going beyond this boundary in the consultation presents a far more complex and costly intervention, especially when other mechanisms for transparency and accountability of charity finances are in place.

The proposals are also challenging for organisations to engage with because there are two different types of FoI legislation we must look at; the existing FoI legislation as it applies, where there is a clearer sense of how this works in practice for those currently designated, and an updated version of FoI legislation as presented in this consultation paper, with a range of different reforms relating to technology, a new statutory role of Freedom of Information Officer, and other processes. Extending FoI coverage to voluntary organisations while adding to the list of duties those currently designated must comply with raises even more unknowns for voluntary organisations. 

RECOMMENDATION: Clear definitions and parameters should accompany any proposals to extend freedom of information coverage, to ensure that voluntary organisations are clear about the proposals they are to consider and understand how they will impact their organisation and those they support.

4. There is a need to appraise multiple solutions – including designating voluntary organisations – and their costs/benefits to find a balanced and practical outcome.

The benefits of delivering any public policy result in costs elsewhere and maintaining and strengthening access to information rights is no exception. The obvious cost is a financial one, but there are usually other costs which can take all manner of forms (e.g., choice, competition, provision). The assessment of potential impacts included in this consultation paper lean heavily towards the positive impacts relating to certain public policy aims, with very little attention given to the negative costs, be those financial or non-financial.

For example, there is an assumption in the consultation paper that ‘some public authorities will save money as they will no longer be liable for answering FoI requests relating to contracted out services to ALEOs, third and private sector providers.’ While this is a potential benefit for public authorities, there should be recognition of potential staff costs incurred by providing advice and support to voluntary organisations under contract.

We have heard those responsible for FoI in local authorities share their concerns about the potential impact on their resources. Those we have heard from feel there will be an onus on them to provide training and support as part of ongoing funding relationships, even if this is a less formal supplement to what the Scottish Information Commissioner provides. They also share concerns about the potential for duplication of requests to multiple organisations that would further increase workload and costs to the public purse. The varying approaches taken by two different bodies in responding to the same FoI request also lends itself to creating confusion around what and why certain information has been shared and would require additional resource to ensure an approach is joined-up and satisfactory.

Appraising options and the costs and benefits of these is key to designing good regulation. The Scottish Government’s existing powers to extend the coverage of freedom of information, and the proposal in this consultation paper, are only two options that both sit at the same end of the spectrum where risk is transferred from public bodies to voluntary organisations; the public authority’s duty to provide requestors with information is outsourced. The consultation paper says that ‘broadening the definition of public authorities under Section 3 of FoISA to cover publicly funded services is the simplest approach to ensure consistency in designation.’ While this one-size-fits-all approach may be the simplest approach for legislators, that simplicity must not come at the price of effectiveness or at increased and unnecessary complexity for those that stand to be regulated.  

'Guaranteeing the rights of access to information,' as covered in the Aarhus Convention, could be done by exploring other avenues. For example, the consultation paper notes that voluntary organisations already provide essential information to public authorities when they respond to FoI requests. One option we cover elsewhere in our response could be strengthening existing processes around sharing this information to ensure this method is more reliable and effective. Information held by non-public sector bodies related to the delivery of public services would still be accessible under freedom of information legislation – the overarching principle set by the Public Audit and Policy-legislative Scrutiny Committee – but not require the designation of voluntary organisations. If we can maintain and strengthen people's access to information rights in a more cost and time-effective manner and in a way that does not transfer risk to the voluntary sector, it is a practical solution to consider alongside other more fundamental reforms.

There may be instances where sound reason and evidence dictate that achieving continuity in individuals' rights under FoI law is impossible through means other than designating those voluntary organisations delivering certain services. Where such a compelling case exists, there must be explicit recognition of the tensions and trade-offs with other public policy aims and objectives relating to those services, with a clear assessment of the benefits and risks that enable policymakers to assess and decide on the correct course of action. It is important that voluntary organisations that could potentially be affected by any form of extension of FoI understand more clearly the costs alongside the benefits of what is being proposed and why achieving the policy aim and objectives cannot be met through alternative means.  

RECOMMENDATION: A robust options appraisal that explores the costs/benefits of potential options for maintaining and strengthening access to information rights is necessary to arrive at a combination of well-balanced, effective, and practical solutions. Policymakers and voluntary organisations must understand any trade-offs before a course of action is taken.

5. The Scottish Government should assess and, if needed, strengthen existing Section 5 powers to designate authorities, as these powers work when used.

The Scottish Government holds existing powers to extend the Freedom of Information (Scotland) Act to voluntary organisations in a way that is demonstrably proportionate and targeted, based on multiple factors. While this is not the only avenue to uphold access to information rights, powers to designate voluntary organisations under FoI exist. The proposals raised within the consultation paper represent a significant shift from the existing approach in law to extend the coverage of FoI when there is very little evidence that the current powers, when deployed, do not work effectively.  

The recent addition of Registered Social Landlords (RSLs) under the Freedom of Information (Scotland) Act confirms that FoI can be extended to other bodies within the current legislation, with only secondary legislation required. Execution of these powers has been slower than anticipated, and policymakers may find issues with the consistency and regularity with which the Scottish Government uses its Section 5 powers. However, there is no substantial evidence that the current legislation and the capabilities to extend FoI do not work when used. Strengthening existing powers that work when applied is the most logical option.

While the Scottish Government has used Section 5 powers successfully in recent years to bring RSLs within the scope of FoI, we have also seen evidence of the requirement on the government to consult with bodies on any future extensions to be working well. The current legislation requires the Scottish Government to consult with any bodies it is considering for extension. Where policymakers confirm a need for certain services to be brought within the scope of FoI, there is also a duty to engage thoroughly with these bodies to address concerns and aspects to inform a robust and effective extension of FoI.

We note the consultation paper raises concerns with this approach, as ‘there is an imbalance in the consultation process’ where ‘Ministers have appeared to place a greater importance on the views of the bodies proposed for designation rather than stakeholders such as the public, civil society, and journalists.’ It also states that ‘no action has so far been taken on the latest Scottish Government consultation of 2019 to extend designation.’ We agree that there should be a balance in hearing the views of different groups, but we do not see evidence that recent consultations have not been inclusive of other views. The government’s 2019 consultation received 36 responses: 14 responses were from individuals, and 22 responses were from organisations, several of which were organisations calling for reform.

SCVO's evidence to the Scottish Government's broader consultation on extension in 2019 did not oppose the extension of FoI, but it did highlight several of the concerns held by voluntary organisations. The Scottish Government's latest consultation does not rule out further extensions to the voluntary sector. Still, it reflects on the concerns that SCVO and other voluntary organisations raised in 2019. Rather than being viewed as a negative, this is an example of the existing powers to extend FoI working as they should; policymakers reflecting on a range of perspectives and consulting on alternative approaches as part of policy development around access to information rights.  

RECOMMENDATION: Policymakers should review the Scottish Government's existing Section 5 powers to designate other bodies within the scope of freedom of information. If there is a need to strengthen these to allow for timelier and more consistent use of existing powers, they should adopt improvements here first.

6. The Scottish Government should apply Section 5 powers only when achieving continuity in individuals' rights is impossible through existing governance and processes.

Organisations that SCVO have spoken to felt that there needed to be far more clarity regarding the aims and objectives of extending freedom of information coverage to large parts of the voluntary sector. SCVO understands that the aim of extending FoI is to ensure that, where public authorities outsource public services, individuals retain the rights they have under FoI law to information about the standards, performance, and day-to-day running of those services. It is about the continuity of delivery of FoI rights. A key question might be: 'How can we ensure that, where public services are outsourced, there is continuity in the rights that individuals have under FoI law?'

A solution that would benefit voluntary organisations, people, and the public purse is maintaining and strengthening the duties of the contracting authority to respond and expand the definition of information that a contracting authority can be reasonably expected to hold and can therefore ask a supplier to provide; one possible way of achieving this could be through updating the FOI/EIR: section 60 code of practice. This solution would maximise individuals' rights under FoI law while minimising compliance costs and unintended consequences. Further points raised in our response connect to this; however, a specific issue we introduce here is the risk of a lack of consistency in how voluntary organisations would respond to requests for information due to the varying nature of levels of training, internal processes, capacity, and understanding.

Voluntary organisations that deliver contracts or receive grants regularly report to the authorities funding them, and the scale of reporting has increased dramatically over the past ten years. Organisations are funded or contracted against agreed work plans, and reporting requirements continue to become even more rigorous, including details on staffing, timings, and deliverables. While we do not believe that this level of reporting resembles a funding relationship predicated on trust, it is the reality in which voluntary organisations find themselves. Public authorities providing funding and contracts hold swathes of information on how voluntary organisations spend this money, and they already fall within the scope of FoI.

Where requestors seek information that is not readily available to the public authority, they ask voluntary organisations for this information, and voluntary organisations oblige. There could be a focus on more standardised approaches and more explicit expectations on voluntary organisations to proactively publish information they hold to reduce the need for FoI requests, such as via a new Code of Practice on Publication to support contracting authorities in their efficient delivery of FoI duties. However, we do not see any evidence that policymakers cannot achieve satisfactory outcomes through the contracting authority retaining the responsibility to respond to individual requests for information, or that the margin of difference between the two approaches is of such significance that public authorities should outsource their FoI obligations to voluntary organisations.

If continuity in the rights that individuals have under FoI law is a primary driver for extending FoI coverage, then a sensible approach would be to maintain and strengthen the current structures that are in place, which have been invested in and developed accordingly over more than two decades by public bodies. If organisations should only expect to receive a small number of requests per month, it does not make sense for duties to respond to FoI to be outsourced to these organisations when existing structures are in place. If, as voluntary organisations expect, they are at risk of receiving a substantial number of requests, then utilising the scale and expertise of what is already in place in contracting authorities is logical. 

RECOMMENDATION: Strengthen current structures that allow the sharing of information between the service provider and contracting authority, who should retain the responsibility to respond to individual information requests about a specific service, unless there is an evident loss of rights by doing so. Explore a standardised approach and clearer expectations on voluntary organisations to publish information proactively.

7. A tailored support model must accompany any targeted and proportionate plans for extending FoI to voluntary organisations.

Policymakers must find practical solutions to the challenges of extending existing legislation. Voluntary organisations have expressed a range of concerns with the proposal to designate voluntary organisations under freedom of information. We recognise that bodies that now fall within FoI raised many of these concerns in the past. However, we are firm in our view that the experiences of large public authorities, private General Practitioner surgeries, or Registered Social Landlords (RSLs) provide us with little confidence that these concerns are unfounded.

A significant challenge with this consultation paper's proposal is that it approaches the voluntary sector as one homogenous group. RSLs are simply one part of a diverse sector and are an example of why Section 5 powers work when it is necessary to extend FoI to a specific area. Most voluntary organisations are small and cannot be compared to large RSLs. Organisations engaging with public policy and legal reform are also much more likely to encounter vexatious use of FoI. Voluntary organisations also operate in a highly mixed funding environment that is difficult to untangle.

If continuity in the rights that individuals have under FoI law cannot be achieved in certain cases through means other than the designation of voluntary organisations, SCVO would want to see several issues addressed in a way that recognises the unique operating environment of the voluntary sector. There is a considerable disparity in resources and capacity when comparing voluntary organisations with public authorities, as they experience different levels of resourcing and cannot rely on large legal services departments and the experience of dealing with FoI requests for more than 20 years.

RECOMMENDATION: Policymakers must find practical solutions to the challenges of extending existing FoI legislation by engaging voluntary organisations at the early stage of policymaking; this will help to ensure that unnecessary financial and non-financial costs and obligations are not put upon Scotland's voluntary sector.

7.A   Challenges with partial coverage

Being able to determine who and what is subject to regulation is fundamental to good regulation. The proposal in this consultation paper to extend FoI coverage to some aspects of what voluntary organisations deliver has the potential of causing significant confusion amongst requestors, the public at large, and organisations.

Voluntary organisations operate in a mixed funding environment, and it can be complicated to untangle what is covered by public funding and what has been covered by other sources of income. Funding is often partial and short-term and requires a mix of different streams for individual projects and staffing. By expending significant time and resources, organisations could decide whether a request relates to what they deliver with public funding and what information is relevant. However, it would be challenging to identify what is subject to FoI and potentially increase reporting beyond public funds.

Even if organisations had the time and resources to reach this point, including access to legal and expert support, voluntary organisations are concerned that the reasons for redacting information or rejecting requests may not be understood by those unfamiliar with this mixed funding environment, leading to endless requests, disputes, and court cases. It is not only the impact on organisations’ operations and finances that is a concern. Confusion about what can and cannot be shared can impact public confidence in organisations that are doing nothing wrong and creates space for misinformation when organisations tell requestors that FoI does not cover something.

SCVO knows this first-hand. In 2019, our response to the Scottish Government’s consultation on extending FoI raised several challenges we saw in practice. A national newspaper responded with the article titled; “Charities’ crisis claims over new finance rules which reveal chiefs’ wages.” There was no mention of chief executive wages in our response or the article. The public can already find details of key management remuneration in the annual accounts published by charities. Despite this, others used our consultation response in a manner that had the potential to decrease public confidence with no due cause.  

Voluntary organisations would find themselves in another legal predicament regarding the potential sharing of information to which other parties have yet to agree, such as independent funders. There is a risk of reporting beyond public funds, especially where organisations receive match funding from private funding sources, bringing additional value and benefit to our communities. While these are not hurdles that voluntary organisations cannot overcome, they would need significant resources to manage this.  

RECOMMENDATION: Any proposal to specifically designate voluntary organisations must have clear parameters. Measures should take account of the mixed funding environment that organisations experience and put in place protections to prevent misinformation that causes harm to those organisations and the wider sector.

7.B   Costs, funding, and administrative burden

The significant administrative burden and costs associated with the proposal in this consultation paper are of considerable concern to voluntary organisations, who would need adequate additional resources and funding to fulfil this responsibility without detracting from their ability to deliver services. With a robust funding model to support new regulations, voluntary organisations will not need to direct their resources away from front-line delivery.

We do not consider the experience of Registered Social Landlords (RSLs) to be a strong marker for how the wider voluntary sector would fare with FoI designation. For example, while the RSL sector is diverse and includes many small organisations, RSLs form a significant proportion of Scotland's charities with an annual income of over £10m. Money raised through, for example, affordable lettings and sales, make them a very different prospect from most other parts of the voluntary sector with less flexible income streams. Even when we do make a comparison, we see a challenging picture in the findings from 'Registered Social Landlords and FOI: One Year On.'  89% of RSLs handed lead responsibility for FoI to an existing job role, and 91% of organisations did not employ any new staff in response to becoming subject to FoI. 57% of organisations said that FoI has had a 'small' impact on the workload of staff with FoI responsibility, with 32% reporting a 'medium impact' and 10% reporting a 'large impact.' Only 1% said 'no impact.'

In many voluntary organisations, the person responsible for any information requests is likely to be the manager rather than someone in a specific role. Adding one more responsibility to these roles is unrealistic, even less so if they are to perform a function with similar powers and duties to Data Protection Officers under the Data Protect Act (DPA), as is proposed in this consultation paper. Even if it was possible to add the responsibility for FoI to an existing position, at what expense to staff wellbeing and the performance of services and other obligations? Where RSLs have taken this route, a number reveal that they have also had to engage external specialists for extra advice and assistance at an additional cost to the organisation.

The report also shows that RSLs received 1,191 FoI and Environmental Regulation Requests, working out at an average of 7.5 requests per organisation in 2020. 95% of RSLs reported receiving 24 requests or fewer – i.e., no more than two requests a month. The Scottish Government's 2018 estimates for the combined average cost of each stage of the FoI process are:

• Requests £234
• Reviews £454
• Appeals £1456

These figures are dated and reveal the estimated costs for the Scottish Government, a prominent public authority with decades of experience with FoI. Costs also varied between £4 and £3,033. University College London research from 2010, estimated the average time taken to complete an FoI request in Scotland to be 7 hours and 22 minutes. Even if voluntary organisations were to receive only two requests per month, 15 hours is a significant proportion of the working week. Receiving five requests in a month - still a relatively small amount - could absorb a week of someone working full-time.        

It is also important to note that Scotland’s voluntary sector employs more part-time staff than any other sector in Scotland. SCVO’s latest State of the Sector statistics reveal that 46% of the voluntary sector's employees work part-time - far higher than both the public (28%) and private sector (26%). While a 20-day response period may appear to be a generous allowance, the high proportion of part-time staff coupled with the lack of headroom to bolt on further responsibilities highlights the need to base any future extensions on the context in which voluntary organisations operate. However, the proposals in this consultation paper aim to tighten any additional flexibility around the 20-day response period. 

Any potential extension of freedom of information must be proportionate, fully funded, and tailored to the context of the voluntary sector’s operating environment; voluntary organisations cannot bear these costs when they are already facing a funding crisis due to years of underfunding and poor funding practices. The consultation paper notes that many voluntary organisations operate on a shoestring budget with limited staffing. While setting a financial threshold where organisations in receipt of a certain level of funding would be exempt from designation under FoI is a welcome and practical solution, it is wrong to suggest that large voluntary organisations operating above any potential threshold have the resources to absorb costs and already have the training and digital systems in place.  

In recognising that FoI legislation needs to keep pace with the changing nature of public service delivery, policymakers must also investigate what this changing nature means for other parts of the Freedom of Information (Scotland) Act. The 2001 Act required designated bodies to ‘absorb within planned resources’ the costs of implementation. However, extending a regulatory framework to voluntary organisations without a funding model does not keep pace with how government funds public services in 2023; short-term funding with minimal uplifts and often not at sufficient levels to deliver without topping up services with additional income from other sources.

The proposals in this consultation paper note that ‘the commissioner will merit an increase in budget to cover the new functions as well as investigative and enforcement powers proposed,’ but there is no mention of the need to increase funding for public services that voluntary organisations deliver. Ensuring that organisations can secure funding for all the costs involved in running a project or service, known as full cost recovery, is central to fair and sustainable funding. SCVO has spoken to many organisations that have not received an uplift for several years. For instance, one organisation reported receiving no uplift for the past 13 years, which amounts to a 27% cut in real terms. This was prior to the recent cost-of-living crisis and the rapid inflation that has impacted organisations since 2022. Voluntary organisations could only take on additional obligations if the Scottish Government, local authorities, and other public bodies increase their core investment in the voluntary sector or, at the very least, pay increased fees for the delivery of contracted services to ensure those voluntary organisations being considered for designation under FoI can take on this additional workload.

RECOMMENDATION: Where there is a clear evidence-based case for designating voluntary organisations under FoI, a robust funding model must be put in place to support new regulations, to ensure that voluntary organisations do not need to direct their resources away from front-line delivery.

7.C    Concerns relating to vexatious requests

There is an acceptance that requestors can abuse freedom of information and behave vexatiously, and provisions within the current legislation provide some protection from vexatious requests for information. However, we are concerned that these provisions still burden organisations that must go to great lengths to prove a request is vexatious.

We recognise that this is an issue that organisations are often concerned about and acknowledge that FoI is not about access to personal information but covers matters relating to how that organisation operates. However, we do not believe the experiences of voluntary organisations – especially those working in particular policy areas – align with those already designated due to the nature of what voluntary organisations do and the difference in the scale of resources available.

Far from creating a level playing field, organisations would be wide open to receiving requests submitted with malicious intentions. For example, voluntary organisations working in public health know that corporate producers of health-harming products use freedom of information to throw sand into the regulatory machine. The University of Bath's Tobacco Tactics website – Freedom of Information Requests – TobaccoTactics – explains this.

The Australian Government had to dedicate four staff to respond to one tobacco lobby group that was inundating the government with FoI requests in July and August 2010, ‘who should have otherwise been working on population health issues.’ This capacity would be unavailable to a voluntary organisation working in this space or on any other public health policy. Corporate entities submit substantial requests to the Scottish Government covering issues relating to harmful substances such as alcohol and tobacco. Voluntary organisations will support information gathering to respond to legitimate requests, but the Scottish Government provides a buffer and protection from directly facing such disrupting behaviours.

Voluntary organisations working in these spaces have a role in challenging products and services that are high risk to people's health, society, and the environment. Extending the designation of FoI to voluntary sector bodies without acknowledging the unique spaces that voluntary organisations in receipt of public funding situate themselves within, or indeed the evidence that exists that supports these concerns, could have huge implications and lead to an even greater imbalance of power around issues relating to health, equalities, and the environment.  

Organisations are not just concerned with how corporate entities use FoI to slow down processes to impede progress and abuse avenues to access information to misrepresent and undermine the credibility of voluntary sector research, policies, and activities; legislation to protect the public's right to access information can be abused by many others, including by those who disagree with the work of equalities organisations to protect marginalised communities. 

Organisations that SCVO have spoken to are concerned by the prospect of people using FoI who disagree with organisations' work and policy positions in areas such as gender-based violence and LGBTQ+ rights. We fully recognise that FoI does not cover personal and private information, but this does not mean that people cannot use FoI in a manner that causes harm. Voluntary organisations working in this space have told SCVO that people inundate public sector bodies with information requests about their organisation’s work as part of targeted campaigns.

Understandably, voluntary organisations need certainty that people and organisations cannot use FoI nefariously to bring undue burden to their organisations, their staff and volunteers, and other organisations supporting people with protected characteristics. It would be damaging if vexatious requests designed to drain capacity and silence voluntary organisations' public voice, such as the significant backlash that organisations have dealt with when they have spoken about trans inclusion, were allowed to flourish at the expense of people's other rights.

SCVO does not consider there to be adequate protections in place to prevent the system from being abused, and there is no mention of these crucial issues under ‘equalities’ within the ‘potential impacts of this proposed bill.’Even if there is the acknowledgement that the Scottish Government would need to resource voluntary organisations to assess and respond directly to FoI requests, we cannot see how the current vexatious reporting mechanisms would work in situations where there are co-ordinated campaigns asking members of the public to submit FoI requests or tactics from corporate entities. The limited protections currently in place to deal with vexatious requests would only be weakened further by the proposal in this consultation paper to allow requestors to submit their request without personal information, such as their name.

RECOMMENDATION: Were any voluntary organisation to be designated under FoI, policymakers should collaborate to agree on an approach that protects them, their staff and volunteers, and the people they support from malicious requests for information. This should include exemptions where there is a clear risk of harm.

7.D   Commercial sensitivities

Voluntary organisations often compete for contracts against private sector organisations. As highlighted in the STUC's recent report, voluntary organisations must play a role in improving quality and outcomes in the public service delivery landscape. Having increased choice where no single organisation or type of organisation has a significant market share and where barriers to entering the market are removed rather than created is crucial in the current public procurement market that operates in Scotland. 

It is accepted that information relating to a tendering process while the progress is ongoing is likely to be commercially sensitive information and not for disclosure. However, there is a view that the commercial sensitivity of this information lessens once the contract is awarded and with the passage of time. Given the short-term funding environment in which voluntary organisations operate, where arrangements can sometimes last for only 1-3 years, the sensitivity of this information – such as pricing and voluntary organisations' approach to apportioning resources – is certainly not diminished over time. There need to be explicit protections that sit alongside any designation of voluntary organisations to ensure that exemptions are in place where the nature of any information is commercially sensitive in the context of the voluntary sector's operating environment. 

Decisions relating to commercially sensitive information put voluntary organisations in a legal predicament. Most third-sector organisations do not have an in-house legal team as public bodies do. While this legislation will likely not merit establishing such, there is a concern that where voluntary organisations must invoke commercial confidentiality, they are likely to need legal advice. This would be a cost over and above the creation or expansion of an identified role within organisations. Where this occurs, it is likely ad hoc and difficult for organisations to estimate the costs. 

What is and is not deemed commercially sensitive information can vary depending on the organisation and the area in which they operate. The pricing and apportioning of resources by a private sector organisation may be commercially sensitive. Still, the level of uncertainty and risk in revealing a voluntary organisation's approach to these issues, who have little room to manoeuvre with their future strategies around price terms and resourcing, is significant. It could influence the offering of competing organisations and create space for anti-competitiveness. Other matters that may only apply in some parts of the sector also require a nuanced and tailored approach to FoI extension, for example those organisations reliant on sponsorships.     

RECOMMENDATION: Policymakers must base their decision to classify certain information held by voluntary organisations as commercially sensitive on the context in which voluntary organisations operate and their need to compete with private sector organisations and other voluntary organisations for public contracts.

Contact

Paul Bradley, Policy and Public Affairs Manager – paul.bradley@scvo.scot   

About SCVO

The Scottish Council for Voluntary Organisations (SCVO) is the national membership organisation for the voluntary sector. SCVO represents the sector at a national level and provides advice and services to voluntary organisations. We champion the sector, provide services, and debate big issues. Along with our community of 3,000+ members, we believe that charities, social enterprises, and voluntary groups make Scotland a better place.

About Scotland’s voluntary sector

Scotland relies heavily on its voluntary sector and volunteers to deliver a range of services, to provide tailored support in local communities, and to promote community connection and resilience. The sector is hugely diverse, ranging from tiny volunteer-run community groups like village halls and play groups to major public service providers in social care and housing. In Scotland, we enjoy the benefits of 46,500+ voluntary organisations.

Together these organisations employ over 135,000 paid staff. A quarter of charities employ staff, and the average income of these charities is around £900k. However, three-quarters of charities are run entirely by volunteers and have an annual turnover of less than £100k. Many deliver vital services and work with some of Scotland’s most marginalised communities. SCVO’s State of the Sector statistics for 2022 are available online.