 Maen nhw, wrth gwrs, ac rydw i chi'n ddweud o'r cyd-dweud ymwneud cyd-dweud y Gwyrddon Fawr. Felly, rydw i chi'n ddweud y swyddfaethau o'r eich cyd-dweud o'r cyd-dweud o'r cyd-dweud, oedd ei fod yn ddweud y cyd-dweud yw'r cyd-dweud? 1. Felly, rydw i chi'n dddangos ymddiadol i gael peth yn y cyd-dweud? Item 2 is Post-legislative Scrutiny, the Freedom of Information Scotland Act 2002. I would like to welcome our witnesses to the meeting this morning, Darren FitzHenry, Scottish Information Commissioner and Margaret Keyes, head of Enforcement Scottish Information Commission. Can I please invite Darren Henry to make a short opening statement? Thank you very much, convener, for this opportunity to give evidence today as part of your consideration of the Post-legislative Scrutiny of the Freedom of Information Scotland Act 2002. As I said how, in my evidence of on 22 March last year, we have in Scotland a freedom of information system that has high levels of public awareness, is actively used and results in a lot of information being provided to people who can use it to get involved, to raise concerns, to campaign for change and to participate in the decisions that affect them. However, it is important not to rest on our laurels. As you have also heard, there have been concerns raised about the system and it is important to address those. A number of those concerns were about the freedom of information performance and practice of public authorities, particularly the Scottish Government. I am aware that the committee wished to defer detailed consideration of post-legislative scrutiny until I had the opportunity to proceed with my intervention so that it could consider how that work related to the broader calls for scrutiny. I can confirm that, as I have helped to set out in the spice briefing, I have completed the assessment phase of the intervention. That is the consideration of what has gone wrong and the reasons for that. My conclusions on that and my recommendations for improving the Government's FOI practice were set out in my assessment report. Those recommendations have been accepted by the Scottish Government and we have now agreed an action plan for them to implement the recommendations. We are now in the implementation and monitoring phase of the intervention. I stand by today to provide the committee with answers to any questions that they may have on the intervention generally. However, that is just one intervention, albeit a major one, with a focus on the practice of a particular authority. I also greatly appreciate the opportunity to update the committee on my views of the legislative and structural FOI issues that could fall within the scope of scrutiny. It is which the committee may wish to consider include a greater focus on interventions, calling upon some of the lessons that we learned from the Scottish Government intervention, and changes on the rules on proactive publication to strengthen and update the duty, making the provisions more agile. That may include adding powers of enforcement, introducing a new code of practice to drive the development of proactive publication, taking into account changes in technology and changes in the ways that people access information. In addition to those two areas, the current system excludes certain bodies from parts of the act, particularly the Lord Advocate and Procurators Fiscal, and the First Minister's veto. I would suggest that those areas are also ripe for reassessment. I know that the creation of a duty to document was raised by a number of contributors to the last evidence session, and I stand by to provide evidence on that, if desired. Finally, as you might expect, there are a number of technical amendments that my office has considered and identified over the years as being desirable, which I would hope could also be considered as part of any post-legislative scrutiny. Thank you very much, Mr FitzHenry. We are following the duty of the committee today. We have a post-legislative function on the committee, and it will be up to us at the end of today to decide whether we undertake post-legislative scrutiny of the FOISA 2002 act. Looking back over the evidence that you gave us on 22 March last year and what you have said this morning, do I detect from your comments that you feel that the act now needs some post-legislative scrutiny? That is indeed the case, convener. It has been some time since the act was obviously enacted to begin with. Society has changed somewhat over that time. We had a situation whereby fewer than 50 per cent of households had internet access back in 2002. We are now at a situation point whereby it is comfortably over the end of the 80s of per cent. We have a society that demands more information, expects more information, we have a number of other initiatives, we have open government, open data, digital strategies. The world has not stopped, but the act has frozen in time. We certainly did have some scrutiny and amendment in 2013, but it was not a comprehensive look, and there are still a number of areas, particularly in relation to proactive publication, in which we could develop matters further and, as I said, in relation to another proactive thing, proactive intervention to improve authority practice, which is where a lot of the concerns about the current system lie. Let me pick up on that point, Mr FitzHenry, because you talk about proactive publication. It seems to me—I was very aware of the evidence from March last year—that we currently operate within a system in which our public authorities hold information. If members of the public want that information, they have to request it and then it goes through a process and it comes back to them. However, it was clear from the evidence—and I think that this is what you are driving up with proactive publication—that other countries, and I think that Scandinavian countries as well, have a system in which they have a duty to publish that information. Therefore, you do not have the push and pull of having to request it. That seems to be a much more open way to do business. Is that the kind of model that you would be looking to? At the moment, we have a mix of the two. In Scotland, we have a system in which the requests can be made for information that people wish, but we also have an existing duty to publish information. That is centred around the duty to have a publication scheme, so all authorities have to have a publication scheme setting out the classes of information that they will publish. Then they will have a guide to information under that, which sets out what they are actually publishing, and they will put that out. In Scotland, we already have a proactive publication system. However, the focus in Scotland to date has been more on the applications, rather than the publication duty. I think that there are ways in which we can refocus the effort to show that the publication duty is every bit as important. It is that duty that gets more information to more people, because we do not have records of how many people access all the different public authorities' websites to get information and to access that, benefiting from freedom of information laws without actually recognising that they are doing so. However, as I said, I set out in my predecessor's report on publication, the emphasis is not as strong on proactive publication in Scotland. I think that we can improve that. Some of the structures set up in the legislation so that the concept of having a publication scheme is quite an old-fashioned concept. It comes from the idea of having your bit of paper where you are setting out the classes of information that you are going to publish. What we have seen in practice is that we have moved from when it started to there being a number of different publication schemes. We have in practice morphed to having a single model publication scheme, which all authorities are now signed up to. In many ways, we have taken the discretion away and it has become a more centralised model already. I wonder why we need to persist in the need of having publication schemes per se, when we could just have a code of practice, setting out what classes need to be implemented and what classes of information need to be published, allowing authorities to focus more on what information are they then publishing under that, having regard to the public interest. Scottish system compare with transparency and open government in other countries? There are a number of different ways of dealing with that. We are still a relatively young system in comparison with a number of countries. Certainly some of the northern European countries have obviously had their systems in place for a long time. There is a right to information index that is created by an international organisation and it sets out a rating system about where the various countries lie in the process. Scotland is not currently rated on that being, for their purposes, a sub-national and is therefore not in the list. The UK is, however, in the list and I think it is number 42 out of 123 countries behind Sweden, which is 101 but in front of Russia, which is 98 points on it. The UK generally is viewed as being quite good in the process. That process, bear in mind, only looks at the legislation, it does not look at the practice. I think that if there was to be a system that looked at how good is the practice in the countries, I think that you would see the UK and Scotland as well higher up in the process. Thank you very much. Colin Beattie. Your intervention was focused on requests from one particular group of individuals, journalists and about one organisation in the Scottish Government. Isn't that a very narrow area to look at? The decision to proceed with the intervention was one taken because there had been an amount of concern expressed at the Scottish Government's performance in that area. Obviously, the Scottish Government is one of the biggest public authorities that we deal with and within our remit we have the power to deal with appeals of people who are unhappy with particular decisions, but we also have an assessment power and a power to intervene with authorities who are failing in their freedom of information practice. In this case, we had a unanimous parliamentary motion following a debate, criticising and, in fact, condemning the Scottish Government's freedom of information performance. In the light of those concerns raised, I determined shortly after arriving in post that it was appropriate to look at those concerns and to address those and to see what improvements could be made. In doing so, we then focused on the concerns that were raised to try to improve the practice of the authority and, as I said, we are obviously in the middle of that process, now looking at monitoring and implementation. Yes, you could say that it is one authority, but that was in relation to the powers that I have and, in fact, one of the functions that I have to improve authority practice. One of the lessons that we are learning is that the report that was issued was going out at various conferences and meetings with other authorities and inviting them to look at that report, to look at that report's findings and to see if any of the findings that we made in relation to the Scottish Government have a wider read across to those other authorities. We are trying to spread good practice through the report as well as addressing the specific concerns about that one important authority. Were the journalists themselves a major force in terms of FLY requests and so forth? Did they form a major group there? There certainly are a major group of requesters, as you would expect. They are not the major group of requesters as far as we can ascertain from our statistics. Just normally, every day, people tend to be the largest group of requesters, but there is no doubt that the media is an important group within that. The power of the media is, of course, to any issues that they find through the freedom of information request. That can then have wider visibility because of their publishing of that information. My understanding is that the Scottish Government has addressed the issues that were raised and are working with yourself in that resolution. Is that correct? Yes. It has now developed an action plan that we have agreed, and we are in the process of the implementation of that action plan and monitoring throughout to keep ascertaining how that is progressing and is it achieving the improvements that we would expect to see. Given the particular needs of the group, the journalists, you touched briefly on the fact that you were looking at other organisations in terms of the lessons learned from that particular intervention. Are you going to be producing a report on that, or are there anything that we can take from that? It is more a question of going to the authorities and explaining to them what interventions are for start, because we are having a greater emphasis on proactive regulation, and going forward with an intervention that benefits the whole audience of requesters to that authority. We are benefiting a lot of people rather than just the one applicant in an appeal. What we are doing is taking the lessons learned, and we are going in our normal meetings with other groups of authorities and in conferences and saying that this is what an intervention is. Those are some of the points that we identified. Please do not worry if you get an intervention yourself, because the key purpose of that is to make things better for the requester and to make the authorities' ability to meet its obligations better. Have a look at our intervention report and see what there is. We are not judging any improvement on those other authorities because of the report. We are inviting them to read the terms of the report and to see how that might relate to them. Bearing in mind that all authorities are different, they deal with different functions, they have different types of information, but there could be some little nugget of gold in that report that they think that that is a problem that we have and that could help us in our FYI performance. How many interventions have you actually heard up to now? Our interventions are scalable, so they range from a level 1 intervention, which might be a phone call or a quick email to an authority saying that we have noticed something that needs to be fixed, all the way up to a level 3 intervention, which is the Scottish Government one, which is a very in-depth one, or a level 4 intervention that uses specific powers. Last year, we had over 230 interventions in the year 17-18 of those 223 were level 1s. We said that they were that stitch in time, if you like, type of intervention. We have noticed that there is something wrong. We have fixed that and, hopefully, that quick phone call, that quick email, just solves the problem there and then. The ones in which you have more detail are the level 2 and level 3 interventions. We had seven level 2s, two level 3s, and we had recently completed two of the level 4s, which were the actual enforcement action. Alex Neil Can I first of all ask you, in 2017, between 2017 and 2018, there was a 45 per cent increase in the number of FOI requests, as my understanding. In 2018, there were 3,050 FOI requests. Up until November last year, in 2018, there were over 3,500 FOI requests. That is a huge increase over a two-year period. Why do you think that there has been such a massive increase in FOI requests over that period? Sorry, can I just clarify? Are those the figures for the Scottish Government's numbers? It is difficult to tell exactly why that would be the case. Part of it is that there is a general increase in use of the provisions across the board in relation to a number of authorities, so we have seen an incremental increase across authorities of increases in requests for information. Part of that is greater public expectation about obtaining public information from authorities. I think that part of it is greater visibility of freedom of information perhaps because of the intervention. That has made people think that they want to know the answer to this, or that a number of those requests for information could be requests going behind the intervention, looking for details of, for example, witness statements or other pieces of information associated with it. In part, it is an increased visibility of freedom of information, it is an increased desire to use it and it is the increased visibility of the Scottish Government's role there. Is it not the case that in all each of those years, less than 50 per cent of FOI requests were made by individual members of the public that came from other sources, from organisations? Is it not also the case that something like five individuals account for 20 per cent of the request and one individual counts for 12 per cent of all the requests at an estimated cost to the public purse of £100,000? Is this not a total abuse of the system? I certainly do not know the specific figures in relation to the Scottish Government's internal numbers and the numbers that they gave me. Based on those numbers, is the system not being abused by a literally a handful of people? If there are any suspected abuses of the system, there are currently processes and procedures within the system to deal with that. In relation to freedom— I haven't even dealt with it. That might be a question for the Scottish Government as to why they haven't sought to apply some of those provisions, because there is a vixasious provision that allows a request for information to be refused on the grounds that the request, not the request or, but the request is vixasious, and that can take into account a number of factors such as numbers of requests, the value of the information being sought and so on. We have provided detailed guidance on that recently. Just last month we had a court of session judgment giving further clarification on the use of vixasious provisions and what it means. Well, it's not just the number, it's also the nature of the question. At a recent Holyrood magazine conference, the Minister for Parliamentary Business gave a couple of examples of the kind of questions. Two of the questions were how many copies of Ruth Davidson's autobiography have been purchased by the Scottish Government and how much has been spent by the Scottish Government over the previous years on crayons. That was not the purpose of the FOI legislation. I mean, I probably don't remember who was here when the legislation went through. This is a total abuse of the legislation. In September, I'm told that one individual sent 84 requests in less than an hour, literally one every 40 seconds. That's not the purpose. People are abusing this. It's not time we crack down on the abuse and freed up more resource for the genuine inquirers. I think that there's a fundamental problem with how you would achieve that beyond the existing provisions. That problem is that you'd be seeking to come to a view as to whether somebody's request was valid or not, whether it was a worthwhile request or not, and what worthwhile is very much a subjective view that differs from person to person. In relation to the extremes that you've mentioned there, I do question sometimes why authorities don't seek to rely on the existing provisions. Indeed, at the Holyrood conference, when some of the examples were provided, one of the journalists who was speaking also said that if he'd put in requests in that way, he would have expected a vexatious response to come in. I know from my interviews with a number of Scottish Government individuals as part of my intervention, there was a reluctance to use the vexatious provisions. Unfortunately, that's something that I can control. I can't make them use the vexatious provisions. All I can do is say that they are there. They're available. We've got recent court guidance on how they can be used, as well as guidance from our office. Ultimately, if there are provisions that would allow a request to be refused because it's vexatious, it's for the authorities to use it, and if an appeal is made, I'll then consider as to whether the authority has correctly applied those provisions. The second might be worth just on the quarter session judgment that we had. It was actually the one in which we agreed with the Scottish Prison Service that a request made to them was vexatious. We agreed that that was a appeal, but the quarter session upheld our decision, so that was a case in which we agreed that a request was vexatious. I remember that in the very first session of the Scottish Parliament when we were formed, there were literally daily stories about expenses. Somebody had spent £6 on a fish supper and stuff like that, which, of course, was rather stupid in the part of the individual, but that's another matter. George Reid, the then Presiding Officer, changed the system so that all the expenses claims went on the website of the Parliament. Since then, we've had practically no FOI request because the answer is that it's already published. Is there not a lesson in there that, for example, in terms of all the procurement contracts and everything the Scottish Government orders, whether it's an autobiography from Ruth Davidson's or when mine comes out, whether there are many more sales of that, I'm sure, than Ruth Davidson's, but is there not a lesson from how the Scottish Parliament handled the expenses issue, which became a victim of FOI and published all the information and then it was up to people to dig themselves for adding up different ways? Could we not do something similar across the board, as other countries do? Ruth Davidson touched briefly on that already, the proactive publication point. Yeah, but this is a much more comprehensive approach. Okay, Darren Fitzhainry. Yes, I think very much that. That's one example of one of the benefits of proactive publication. Another example is that it actually builds up trust, so from our MIP source, Moray polling, 77% of people are more likely to trust an authority which publishes more information, so there are a lot of benefits for the proactive publication. We can't, for certain, say that by publishing more, you definitely get fewer requests for information because it varies depending on the type of information you're pushing out, but the example that you've just given is one clear one whereby you are going to greatly reduce the requests for information in those areas. Willie Coffey. Good morning to both of you. Could you tell us how did you deal with the issues that came up last March, principally the complaints about lack of minute taking and the failure to create information and so on? I remember the discussion that took place at the committee and it was clearly stated by you that these things were not within the scope of the act. How did you deal with them from that point till now? Yes, the creation of records is a difficult one and it's certainly that duty to document which was mentioned by a number of the contributors. The current system is that there is no duty to document, certainly as part of freedom of information legislation. The focus is very much on the provision of information which is held by the authority and the publication of information that's held by the authority. We have, in a number of decisions, specifically referenced the fact that information that we would have expected to be there wasn't there, so we've drawn attention to that. We've looked again at the various documents and policies that we have. There is some reference in our section 61 code of practice to the creation of records, but again in that code of practice, which is purely practice, it's not a duty, it's not a legal duty, it's best practice and it refers to having procedures by authorities to decide what information they should keep and they put a very wide interpretation on keep to include create. So there is a reference to the authority that should be considering a number of factors in determining what should be created, but again it's very procedural, it's not going down into the detail of being able to say, and certainly not me being able to say, you must record X or you must record Y. So the current processes are very quiet on that area. There's a question as to whether it lives in freedom of information as a process or whether it lives in records management and there are different approaches in different countries. For example, in British Columbia they've recently had an enactment which places it very much in the chief records officer that they may issue directions or guidance on information, including the creation of records, whereas in I think Denmark it is seen more as being a freedom of information type function. So there are different approaches elsewhere on that area. There are also different approaches as to whether it should be a general duty, so it should just be a general duty to publish and document, which for example New Zealand has got a very wide duty and the problems with that are then difficulties in enforcing it compared with other countries where more specific lists of information are provided. What did you say about the existence of or otherwise of minutes? That was a big issue raised at the time. There aren't any minutes that are kept. That clearly wasn't in the scope of the act at the time. Have you made some comment about that and are you making any recommendations about expecting that to happen? Are you suggesting that we should be looking at that as a post ledge function to extend the powers of the act? I think that it's certainly a very important area because ultimately, if information is not recorded to begin with, that frustrates the rights to access to that information in due course. I think that it's certainly an area that should be looked at. As I've mentioned, there are other countries that are looking at it at the moment, which are working on it. There is already some legislation in the Scottish records legislation, which might be where it should live. I'm not saying that it definitely lives in the freedom of information legislation, but it's certainly an interesting area that justifies a closer look. There are many ways of dealing with it. There are a number of associated difficulties with it. Is it just central government that you're talking about? Is it all public authorities? What should be minoted? Most people would say that decisions and the reasons for your decisions should definitely be minoted. Then it comes down to meetings. Which meetings should be minoted? Which not? It's then a matter of having a view on those matters. As far as I'm concerned, the more that's been minoted, the more that we can release, which is a positive thing. Last for me, convener, you say that you're in the implementation and monitoring phase. You stress the importance of observing the practice from now on. How will you monitor practice from now on? Will you let us know how that's going on an annual basis? What's your intention? In relation to the monitoring of practice, we're first of all seeing what changes they're making to their policies. We're inactive discussions with the Government as to what policies they're going to be putting in place. If we're thinking that that clause isn't going to work, that's not going to achieve, or that's going to create some of the same problems that we've had before. We're inactive discussions about how it will be changed, so we have a good, solid baseline for that. We're then a number of bloggers and other people have been keeping us up to date on cases where they've had problems, so we're looking at those particular issues to see if we're seeing a sea change yet. We're getting monthly inputs from the Scottish Government on their freedom of information statistics, so we're monitoring, in statistical terms, how things are going. Every three months we monitor all authorities, but in relation to that intervention, the Scottish Government is providing us with monthly figures that are out of the normal course, so we're monitoring them to see how that goes. The Scottish Parliament passed a resolution in a debate asking us to provide updates on it, so it would be my intention to honour that by providing, certainly for the first year, into that update. I think that, thereafter, it depends upon how long the monitoring phase continues as to how many updates will continue after that, whether we have one or maybe two after that. Mr Fitzhennie, let me pick up on Willie Coffey's question on the minute time of meetings, because we heard evidence last March on the back of the letter from 23 Scottish journalists that you'll be aware of, and they highlighted concerns that they felt the Scottish Government is no longer taking minutes of meetings because they know that those minutes will be subject to FOI. I think that we heard an example of meetings between the then finance secretary, John Swinney and Sir Angus Grossart about the Scottish Futures Trusts. Does that concern you? I think that any important meeting that is not minited is therefore a lack of information, there's a lack of information held, which may be of interest to people. The question of which meetings should that cover, which specific ones, what detail should be included in relation to those minutes, is currently dealt with in, for example, ministerial code and other places. At the moment, we've got some codes of practice here and a rather disjointed system. It's therefore not within my current remit to say that you must have that type of minute, you must record this type of meeting. It's important to have a detailed and intelligent conversation about where those parameters truly lie. As you would expect, as the information commissioner, I'm keen on pushing out as much information as we can, and any minutes not being recorded is a lack of information that somebody may wish to have. There is a debate this week about meetings that took place between the current First Minister and the former First Minister about a Scottish Government investigation. Given the enormity of the issues and the severity of those issues, is that something that you would expect to have been minited? Again, unfortunately, within the system, as it currently is, that's not an area that I've got any superintendents over in terms of what's there. But if somebody was looking for it and the minutes are not there, that's a piece of information that they're not going to get. I think that you said earlier in your evidence that the more that can be minited, the better in terms of transparency. Yes, and it's a question then as to what are the legal duties to minute, because there's always a balance to be struck in terms of if absolutely every email and every bit of correspondence and every conversation in the corridor was ever minited, you've got the potential of bureaucracy grinding everything to a halt. You've also got data protection issues, which have to be considered in relation to what is kept and for how long. So there are a lot of moving parts in relation to that. So it's not just a straightforward everything must be recorded, but certainly in terms of freedom of information. The more information that is recorded, the more information can be provided on request. Presumably, this is the miniting of meetings. Generally, this is one of the reasons why you feel we need post-legislative scrutiny. Because of that, absolutely. Okay. And it's not for me at the moment to say where those parameters lie. No, indeed. That could be a job for us. Bill Bowman. Good morning. We've tended to focus on the Scottish Government at the moment, but you've said you've done other interventions. So when you've looked at other public bodies, are there any common issues that you've identified? The issues vary between bodies. Some of the ones that we look at relate to clearance, for example, as to who has the sign-off as to whether information is released. There's a tendency in some authorities, and this is not universal, but some authorities tend to go very high. If decision making is always at the top level, that tends to slow things down, because it has to go through a number of leaps to get up to the ultimate decision maker. That's an area where we would much rather the power was devolved down to people who could be trusted to make those calls. Occasionally, it'll be something that's so sensitive that it's got to be dealt with by people up at the top end of the organisation, but that's a general issue in a number of authorities. General planning is something that we sometimes spot problems with authorities in one-quarter statistics, which are caused by staff planning, unexpected absences and lack of a backup. Procedures for dealing with that are another thing. Training, with larger organisations, training in particular can be more of an issue, because the more you delegate the functions that require the people to whom the functions are delegated to be properly trained and in the larger organisations, that's not always been the case. There are just a few examples. They sound sort of like operational issues, rather than issues of things not being disclosed or somebody abusing the system, shall we say? Yes. In terms of that, very much it is very often procedural. It was mentioned in the Scottish Government intervention that very rarely you're unlikely to find any malice here. It's very often the procedures and it's real people having to deal with the real applications in real time. Things aren't always perfect, problems happen, sometimes bad habits creep in, and it's a matter of doing that. Also looking at the structure of the system and saying, well, is your process actually helping you as an organisation and helping your people who have to manage it, or is your process part of the problem, and are you properly training your people to deal with it? Is the feed of information process in those bodies ones that are just set up and forgotten about, or do you find that they're under review? I think that largely we find that they're under review. Certainly for the ones, the larger organisations, we see that they do have them under review. In terms of the publication schemes, we sometimes notice delays in updating them. Again, there's not that as much emphasis on the proactive publication side as there is on the management of actual requests for information. The authorities that tend to get fewer requests for information, as you might expect, are maybe less likely to keep revisiting their policies and procedures in relation to those because they simply have that less demand, so it's not as high up on their agenda. Following on Alex Neil's point, is there a general trend across all bodies for increases in the number of requests? Certainly the numbers of requests across Scotland have gone up. I'm quite sure that there are some authorities where it's not gone up, but the trend is certainly to go up. I think that it was total requests last year were 77,528. That was up 5 per cent on the previous financial year, and that's the figures given to us by the authorities. It's an increase that we've noticed over a number of years. Thank you, convener. Good morning. For the avoidance of doubts, you're clear, Mr Ficendiary, that your feeling is the act is frozen in time and is right for post-legislative review on the basis that you said about a new code, technological change, excluded bodies, First Minister of Zeto. If I'm hearing correctly from the convener's question, there's a merit in reviewing the act to ensure that meetings can't be deemed informal in order to avoid scrutiny, perhaps, as some people mentioned in the 22nd of March. Can I be clear that you think that this committee should review this act going forward? Yes, that's my view. Fantastic, thank you. You mentioned earlier that there's a disconnect between the legislation and the practice. You talked about how the legislation was ranked 42, but the practice actually is better. Does that concern you at all? Of course, the practice can change. The legislation presumably can't. Again, is this about we need to be looking at where the legislation is falling short to make sure that that mirrors the practice and keeps it at the high level? It's certainly a case of making sure that the legislation supports the practice. As a regulator, what I want to do is to be able to give the best and most efficient and effective regulation that I can. That sometimes will mean changing the way that we do things and having the correct tools in my toolkit to do it. That's why one of the things that I mentioned in my initial discussion was an increasing emphasis on intervention, because that's a way of improving the practice across the board and, as part of that, looking at what my current enforcement powers are. Although I can issue an enforcement notice for breaches of the act, I can't issue an enforcement notice for breaches of the code of practice. All I can do is issue a practice recommendation, which is just that recommendation. That might work with public authorities, as they currently are, because they serve the public and want to do a good job, and they don't want to be criticised for not doing a good job. However, as we look at the scope of freedom of information in the future, we have a forthcoming consultation on expanding it to privately-owned bodies who are delivering public services. Will the threat of a practice recommendation have the same weight to bodies like that, which have shareholders and a bottom line to it when compared with public bodies? I am concerned that, in terms of the push to be more proactive in our regulation, additional powers would be useful. In particular, the ability to enforce more strongly codes of practice should it come to it. Part of our intervention involves questioning witnesses. I have no powers under the current act to compel witnesses to come and give evidence to me. We were fortunate with the Scottish Government. They were very accommodating and agreed to come and give evidence to me. That, again, is something in the act that can help our practice. It worked okay to date, but if an authority decided that it wasn't going to be accommodating, it would make my life much more difficult. It would mean that the product that I can provide at the end of the day is not as good. In relation to proactive publication, as I mentioned before, if the tools are not flexible enough, relying on an old-fashioned concept of a publication scheme, it detracts from what the focus of the organisation should be on, which is what can we publish, what can we push out there. Again, linked to that, if we could have a code of practice focusing on that area—an enforceable code—you are allowing the regulator to have a much greater control and influence to keep practice standards high. I agree with your point that there is a very close connection between practice and the legislation, and the legislation should always support the improvement of better practice. The final thing for me is that, since the meeting on 22 March, the GDPR, the data protection legislation, has come into force. Have you seen that have any noticeable impact on FOI requests, on the disclosures being given and, indeed, the operation of the act? In relation to that, we have not yet seen any noticeable impact on that. We had partially expected to see an increased caution, if I can put it that way, on the part of authorities, but we are yet to see any material evidence of that. We are still in very early days in terms of the GDPR coming into force and then the freedom of information applications being made after that date reviews and appeals. However, we have not yet seen anything—I do not know if Margaret Cymru—we are due, unfortunately, in transitional provisions at the moment, so we are still making decisions under the old legislation because the initial decision by the public authority was made under the old legislation. However, we are starting to see new applications coming through now, and we are pleasantly surprised at the practical and good practice approach that has been taken by authorities. I thank you for your frank answers this morning and for clearly stating your view as the Information Commissioner that we should have poshled the scrutiny of the act. I think that that is very helpful and very welcome. A couple of follow-up questions from to Alex Neil's questions. I should say that I have pre-ordered Alex's book already. There is an alternative view of those in terms of that increase in numbers. Has there been any analysis done on the number of freedom of information requests that have come from parliamentarians and parliamentary researchers to the Scottish Government on how that has increased, and that could be a direct correlation from the quality of answers that you are getting from parliamentary questions and that dropping in quality, therefore resulting in an increase in the number of freedom of information requests? I certainly have not conducted an analysis of the Scottish Government's requests and where those requests are coming from. I can certainly say that we have seen a number of requests from political researchers and from elected officials in relation to public authorities, so we do see it as being a noticeable number. There is always going to be a link between what information is pushed out proactively and what information people have to seek. Some people will generally use a scattered gun approach and seek information from a number of different sources and in a number of different ways. Others will seek what is the best way and easiest way of getting the information. If people feel that they are not getting answers in some of the more traditional ways, I have no doubt that they will then move on and use freedom of information as another alternative way of getting that information. More often than not, if I were to submit a parliamentary question, I would submit an identical FOI to the relevant Government department because I know that I will hopefully get the right answer at least in one of the two of them. Do you agree that the FOI scheme should not be seen as an alternative to parliamentary scrutiny and answer parliamentary questions? Both processes should be robust. The issue of parliamentary questions is, again, well and squarely outside my bailiwick, so I can only speak to freedom of information. However, in terms of freedom of information, it is very important that that system is robust. It is a rights-based system, so it is a right for anybody to access the information that is held by Scottish public authorities. That is why the request for information piece of the legislation is still alive and kicking and fit for purpose because it is based on a simple right, and it is important to safeguard that. Is the final question on that part? Do you also accept that, if the number of FOI requests from parliamentarians and parliamentary researchers fell, that would be a significant saving on the public purse? That is another reason why parliamentary questions perhaps should be answered appropriately in the first place. I think that any reduction, any proactive publication or proactive push-out of information may have an impact on the number of freedom of information requests whether there is a resultant saving. It will vary from public authority to public authority. Just on the minutes point, do you think that any meeting that takes place, whether it is an individual or an organisation, lobbying the Scottish Government or the Scottish Government Minister on any matter relating to the Scottish Government, should be amended? Any meeting that takes place that is the lobbying of government, whether it is by an individual or an organisation, that that meeting should be amended? That is an interesting question about obviously looking at the lobbying act as it is currently drafted. That deals with one half of it. That deals with the individuals who are lobbying. The question then is an answer to the legislative way of dealing with that, to have the murder image of that whereby the official who has the meeting also has to register it. It is certainly one potential way forward, but that is a matter to… What I mean is that the lobbying act would be an individual. If an individual is lobbying a Government Minister, so just say that an individual is lobbying the First Minister in relating to a Scottish Government matter, should that meeting be amended? I mean, assuming that that is in accordance with the current rules, they should do what is in accordance with the current rules. In terms of future rules, I think that that is part of the discussion that the committee, and if they choose to look at that, should have. My position, as I have made clear already, is that we should be miniting anything of important decisions, issues that relate to those important decisions, and the more that is minited, the more information that can go out to people. I do not think that I am in a position at the moment in terms of the current construct to go outside my current bailiwick. One last question. Do you think that it is only the decisions that should be minited or the content of the… not the detailed content, but the issues that are discussed that should also be minited? I think that if you are simply recording that a meeting has occurred, that is not providing an awful lot of information, and it would always be of benefit to those who are seeking… In the spirit of openness and transparency, it is going to be of benefit to have some indication as to what was discussed at that meeting. Mr Fritz Henry, let me ask you to go back to the issue of the scope of the act, because that was a broad theme of the discussion last March, when we took evidence on that before. The Scottish Government has extended the scope of FOI, and recently it has extended that to include some arms length organisations that provide, for instance, leisure and culture services to local councils and also private prison contracts and other things like that. We did hear evidence last year that people felt that it had not gone quite far enough and that there are other bodies that need to fall within the gambit of the act. I would like to hear your views on that today if you feel that there are other organisations that should be included. I want to ask you specifically if you think that organisations that are providing services to the Scottish Futures Trust should come under the gambit of the act. The issue of scope is an important one, because we have seen over the years a change in the way that public services are provided across the board with a move to more and more public services, which were historically provided by public bodies now being outsourced to other bodies. We are seeing a deficit in bodies being subject to the act. As in line with my predecessor, she will not be surprised that I support the expansion of the act to those bodies who are providing those public functions. The Scottish Government has announced its intent to have a consultation on a number of bodies, and that is certainly something that we will be actively involving ourselves with to press for greater extension of the act. I think that one of those areas that certainly should be looked at are the functions of a number of at-length organisations that are providing public services that are involved in the expenditure of large sums of public money. I think that the detail has to be worked out in relation to those bodies to see which ones should be included, particularly in relation to which functions. That is where the detail comes in, because if you have private companies that provide a public function but also provide a number of private functions as part of the rest of the duty, it is important that we focus on those areas of public functions that they are involved in. In relation to that, I think that there may be merit in looking at sections 5 and 7 of FOISA. If something that was mentioned to me in the Holyrood conference in December by a participant is on one reading of the current legislation, somebody could be designated in respect of a specific function under the freedom of information Scotland act and, under one reading, that could make them subject to the environmental information regulations for all of their functions. I have not yet come to a definitive view of whether that interpretation is correct or not, but it is certainly on the face of it that that would be an arguable position to take. If we are looking at extending the act out to other bodies, we want to remove blocks to that happening. We want to make it as easy a process as possible and to be able to give them the assurance that, if we are pushing it out to them, it is going to be in respect to their public functions and no further. Sorry to interrupt again, that is something that could be done under post-legislative scrutiny, do you agree? Yes. Okay. Let me drill down a wee bit on the Scottish Futures Trust issue, because you mentioned the Scottish Government consultation. Is my understanding from reports in the press that that consultation is going ahead and they are looking at other bodies, but I believe that the Scottish Government were unable to confirm that the companies providing services for Scottish Futures Trust would be included even in the gambit of that consultation. Do you believe that they should be under the Government consultation? I think that, certainly, as part of the consultation, we should be having that discussion and then a view can be taken, but we should be casting quite a wide net in relation to that consultation, in my view. Obviously, that is a matter for the Government to do that, but to cut off the discussion at that level would, in my view, be wrong. It should be a wide discussion and then a view can be taken at the end of that once everybody has been able to put in the detail. Mark, there is, in fact, a duty on the Scottish Ministers to consult everyone that they are considering, covering anyone appearing to them to represent such persons and also other persons that they consider appropriate and that is already in the legislation. I mean, it is of huge interest to this committee because it is our job here to follow the public pound and currently there is, I think, £2.7 billion of those pounds in the budget on these projects under the remit of the Scottish Futures Trust and it could cost the taxpayer in the region of £9 billion in the future once the interest comes in. So, I mean, would you, given the enormity of that expenditure, Mr FitzHenry, like to see them at the end of our post-legislative scrutiny if we decide to pursue that? Would you like to see those companies covered by FOI? I would certainly like to see a lot more focus on such large amounts of public money and in relation to the public functions that they are fulfilling. Yes, those are areas that I would like to see the scope of the act extended. With regard to the detail as to how that would work, obviously, as you would expect that, something will have to work up in our consultation response. But, sort of, top level, yes, we would like an extension out there. Okay. I don't want to let you leave this morning if there's any further parts of the act that you want to tell us, you feel need reviewed. So firstly, on the scope, are there other areas that you think should fall within the remit of FOI and are there any other parts of the act that you would like to see reviewed? In relation to the scope, as I said, I think that the consultation is the big area that internationally as well as nationally there's a lot of interest and I think it's important to have the focus on that. We're obviously still awaiting Section 5 order to extend FOI to the registered social landlords and we're looking forward to that occurring imminently so that we can proceed with our work on that. In relation to the other points, which I briefly mentioned earlier on, which were sections 48 and section 52 of the act, 48 is the exclusion of an application to me, so an exclusion of an appeal to me in relation to decisions taken by Procurators Fiscal and the Lord Advocate. I know from the notes taken at the time and the memoranda at the time that the reason that's based on section 48 of the Scotland Act which talks about the decisions of the Lord Advocate in relation to his role as the head of the system of prosecutions in Scotland and investigation of deaths should be made independently of any other person, so it is viewed that a decision whether or not to release information under FOISA was also prohibited by that. I'm not so sure that section 48 of the Scotland Act is as prescriptive as that because I don't believe when making a decision on freedom of information the Lord Advocate is acting really in his capacity as head of those systems. He's acting very much as any other Scottish public authority is acting under the freedom of information system, so we've got a system in Scotland whereby these prosecutor rules, this information cannot be appealed to an independent body, which is not the case in England and Wales, where the decisions of the crime prosecution service can be examined by the ICO, so we've got a deficit in relation to the rest of the UK on that point and I think that that's something that's worthy of examination. And section 52, that's the First Minister's veto. That's in relation to the Scottish administration and in relation to cases involving certain exemptions. The First Minister can in effect state that a decision notice or an enforcement notice issued by me is to have no effect. It's never been used in Scotland. The equivalent provisions in England and Wales have been used on a number of occasions by ministers, albeit the courts have clamped down on the use of it and reduced the scope of the use of it, but to me it seems to be an anomaly. We have a system whereby it goes to an independent regulator and then there's an appeal from that on a point of law if I've got it wrong. I think that the law should be applicable equally to all parts of the Scottish administration as to any other Scottish public body. I don't think that there's any need for this to get a jail-free card. I'm pleased to say that, to date, there's been no need on the part of the First Minister to apply it, or any of the First Ministers to apply it either. I think that those are two areas where there's that anomaly on scope and I'd like to see those revisited if the committee would consider doing so. Thank you very much. Do members have any further questions for the information commissioner team?