 Good morning, and can I welcome everyone to the fifth meeting of the Standards, Procedures and Public Appointments Committee in 2023? Our first agenda item is a decision on taking items 3 and 4 in private. Agenda item 3 is consideration of the evidence that we will hear in this session from the Scottish Information Commissioner. Agenda item 4 is considering an approach to delivering the evaluation of the Lobbying Scotland Act 2016. Are members in agreement to take this in private? Grateful. Our second agenda item is the evidence, indeed, that we are to hear from the Scottish Information Commissioner. Can I welcome Darren FitzHenry, the current Scottish Information Commissioner to this meeting? Darren is joined by Margaret Keyes, who is head of enforcement, and Claire Stephen, who is acting head of policy and information. Can I say good morning to you all? Darren, could I hand over to you for a short introduction on your report? Good morning, convener, and thank you for that introduction. I'm grateful for the committee's continued interest in freedom of information and for the opportunity to assist the committee in its consideration of my annual report on accounts for 21 to 22 and any other matters of interest to the committee. As you'll be aware, my annual report was delayed from its usual September-October laying date due to audit availability, therefore laid a section 46 report in the interim to meet our statutory requirements with the annual report and accounts following in December. It was, as you will have seen from the report, a busy year for my small team marked by extremely high numbers of appeals to the office, with a total of 626 being received across the year, which was the highest number since our initial year of operation back in 2005-06. A 29 per cent increase from the previous year, combined with an existing backlog from the previous pandemic-disrupted year, inevitably created challenges for the team. They have worked incredibly hard in closing 549 cases, the highest number since 1314, but the sheer number of cases that we received unfortunately contributed to some delays being experienced by applicants. We've been working hard to manage those, both in terms of the team's efforts in working on the cases, also keeping applicants informed as to where their cases are, including information on that being put on our website, and also looking at streamlining our internal processes and procedures to try to speed matters up while retaining the quality of the appeals. Moving forward, that will inevitably have an effect on my next annual report, and certainly that the high numbers continued, thankfully, to reduce some from 2021-22. That coincided with some departures, some changes in the teams and some long-term absences, which has created a challenging environment, which raised case numbers also through quarters 1 to 2 of the current financial and reporting year. Quarters 3 and 4, we've seen a stabilisation of that, much lower increases, and now that we've got new people in place, we've had a recruitment exercise, we've got three investigating officers coming to enforcement, two are already in place, one during a couple of weeks, and some of support staff, as well as support for the policy and information team. Despite delays in clearances and the like, that's come on, and we're really hoping that that will help us move forward to turn it around and build on that stabilisation period. Obviously, pool work is not the only output of the office. In 2021-22, I also saw us have 257 proactive interventions, ranging from very straightforward level 1 to much more detailed level 3 and a level 4 intervention. It's an area of work that receives no dedicated resource and is met within our existing capacity. 2021-22 also saw us respond to 683 inquiries, helping both members of the public and authorities, and, additionally to that, we developed our new improved website, which went online in April 2022, creating a much improved, faster, modern and accessible route for people to access our detailed catalogue of guidance and support tools. We also published our second special report on the impact of the pandemic on FOI in Scotland, research into public awareness and a survey of FOI practitioners. Looking forward, if that would be all right, convener, essentially, at times of crisis such as the current cost of living crisis, high inflation, freedom of information and access to information are more important than ever. When decisions taken make a very tangible impact on people's lives, whether they keep their jobs, can afford to heat their homes, can afford to put food on the table or access vital services, that information is more important than ever. So we've been championing proactive publication, learning from the experiences of the pandemic and that special report, focusing on FOI as a core output of public bodies and interviewing where authority practice falls short. We're also engaging, as you're aware, with the consultations on going at the moment at looking to improve freedom of information law, including dealing with the information deficit caused when public services and public functions are no longer dealt with by public bodies and are contracted out or new systems are created with not, but not with public bodies carrying out those functions. So this is work that we look forward to contributing into helping the committee with moving forward. Excellent. Thank you very much, Darren. I know we'll address many of those issues in the questions which we will move to. I was just going to open up, really, because obviously today is the three-year anniversary of the lockdown to the day. I was just really going to thank you in your report for the paragraphs regarding the effect of the Covid-19 pandemic. I was just going to really pick a little bit at that and ask where you feel you are now in relation to being post that Covid, the lockdown, the working remotely that you did and whether or not there's any effect on that changing your priorities going forward. Certainly there have been a number of lessons learned from the pandemic. We have seen through that a greater emphasis on the importance of proactive publication. So in terms of my prioritisation, looking at ways in which we improve the system of proactive publication and enforce it better, are areas that we're going to be looking at. Also that's tied to changes to the law. In terms of the importance of FOI as a core function, particularly at times during the pandemic when people were moved away in some public bodies from that function to go to other functions, and we saw certainly with the Scottish Government as the prime example of that, we saw the FOI performance badly impacted by those changes with just that whole infrastructure disrupted. So the importance of FOI being looked at as a core output is something that we're focusing on and it's my intent to be able to go to chief executives and senior members of authorities and not just the practitioners moving forward. In terms of impact on our office with the high numbers of appeals, we're beginning to see that slowly, slowly reduce. We will have maybe 100 less appeals, we think, roughly this year. So there is a difference, but it's still relatively high numbers that we're receiving and we'll just have to see how that pans out. Looking at some authorities, generally numbers of requests have reduced over the pandemic overall and they're not yet up at pre-pandemic levels. One or two notable exceptions in authorities in the Scottish Government to name them again being one of the authorities that have seen a different experience with their numbers increasing during that period. To anticipate that we won't return to the previous freedom of information requests that we had before the pandemic, do you think? I don't see that happening. It's still pushing towards the 80,000. It's not hugely dropped off in terms of numbers and I think that there might be some reductions, hopefully, by increased proactive publication. What we would like to see is more information being pushed out so that people don't have to put in requests, but there's always a place for requests because people will have specific information that they're interested in. That's very helpful. I suppose that looking forward question, can you see any operational risks coming along that you are concerned about? So that's sort of looking forward. Is there anything on the horizon that's coming towards you that's worrying you? My departure is probably one of those things, but there will be a change in commissioners, so that will be a period of change at a time when I know a lot is happening in the freedom of information bubble. So that's something that we have to be aware of. Also, my team as well, there will be some changes in the team inevitably moving forward. In terms of numbers, we really are reactive in terms of appeal numbers. I am hopeful that with us achieving the plateau, we have seen the tide turn and we are going to be making that improvement to drive down the numbers now. If that doesn't happen, if we see another spike in appeals, then really despite having the new people in, if we're not seeing numbers reduce, then that's when we have to seek additional budgets. We are seeking changes in our internal procedures to try to have more people at the pinch points to try to reduce numbers there. So we are flexing, making changes all the time to try to manage it within current resource if we can. That's very helpful. On the question of resource, Alexander, can I pass over to you? Thank you very much, convener, and thank you. You did indicate in the opening statement about the capacity, and I think we all acknowledge that the capacity issue you've had to endure, but managing that capacity has to deal with the staffing you have and the resourcing you have. You've already identified that to do the job you will try to manage it within the resource you have. Is there a case or is there an objective from you to try and see that maybe more is required because you are aware of where you've been and you're also aware of where you want to be, but achieving that may not be possible without there being more staff and without there being more resource because your casework and the backlog already has been identified and you're managing that, but you're being asked to do probably more with less and you may need a little bit more to achieve what you want to achieve, and is that where you think you're going to go? What I'm seeking to do at the moment, now that we've reached the plateau, we've now coincided with us getting the new staff on board. Obviously, there's going to be a period of training which will impact how quickly that has full effect, but if appeal numbers remain roughly where they are now, as opposed to last year, and if our staff deal with the numbers that we would expect, I would expect to see those numbers coming down within the resource that we have. If we find that's not the case, then that's certainly a point of which I will be going to the SPCB and saying, making a case for additional numbers, the problem in the recruitment is it takes a long time from the recruitment through the clearance process to get it, and it has done. I want to, particularly at the current times when financial budgets are stretched, I want to make sure that, before I ask for the new resource, I really need it. There are other things I could always do with more resource. There are many nice to have, so I would love to do more interventions. I would love to do more interventions in relation to proactive publication, but, to a degree, I have to call it that first. You've identified there that, if you had a wish list, you would do certain things, but, at the same time, you don't want to be curtailed into what you're trying to achieve as an organisation to try and ensure that information is transmitted. As I say, I still think that there may well be the requirement for you to seek support to achieve some of the goals that you're setting yourself, because, otherwise, you may be setting yourself up to fail. I appreciate that you want to progress that, but, at the same time, we don't want to be in a situation where you come back in a year's time and say, okay, we tried, but it didn't actually quite work. We've now found ourselves in a slightly bigger situation, so it would be good to get a flavour of how you want to try and manage that, because I see that as a potential, it's not a necessity, but it's a potential that could happen depending on where you find yourself. Thank you very much for that. One of the areas that we have been looking at is where pinch points are happening, and we've obtained budgeting approval from the SPCB to take some IO, so investigating officer slots, and create them into deputy head slots, so that we've got increased resilience, and we're also having resource put at where the pinch points are in the process. I appreciate that if we consider that more is required of things early on, don't change, then we'll certainly take that. You've identified these pinch points, and that's quite good, because it will then give you a flavour as to where you might be. The other area that I want to touch on is the awareness ability to make sure that people are aware of what you can offer, be what you provide, and see if you're going to create the situation, because information is more acute than we've ever had because of that situation. It would be interesting to get a flavour of what your awareness is, and if you have any plans when it comes to communication. You touched on your website, you touched on some of these, but is there other areas that you can encapsulate to try and support you to make that awareness much easier for the public to understand, and also for you as a management organisation to cope with? Thank you very much for that. The awareness pooling data that we had certainly showed that general awareness of freedom of information remains high. It was within a couple of percentage points from previous data. Where we saw a change was in the middle ground between people who were fairly aware or not very aware, and we saw a movement of, I think, 10, 15 per cent between those two grounds. Interestingly, there were similar impacts in other jurisdictions, so I think Australia, New Zealand and the UK. The UK less of a change generally than us, but there was that bit of a change. What we've done is, obviously, we've got the website to have more accessible information available for people coming to it. We've pushed out an open update newsletter, which has been very successful and received well. We've got social media, so we're being involved in social media. We've been working with young people to try to get the message out to them, because if we break down the information into more granularity, we see that young people tend to have less awareness than some older demographics. We've been working with them in relation to that, which is mentioned in the report. We're looking to continue that work in that specific area and moving forward with the policy and information team. We've also got outreach with the Scottish Public Information Forum, where we're in touch with campaigners, NGOs as well as public authorities. Occasionally, I'm just interested in people who join the meetings. We've got outreach in that regard. We've also got increased liaison now with the ICU. We've outreach how we improve awareness is certainly something that we want to look at. Not only just generally, but also historically disadvantaged groups. There was a charter commitment in relation to that and was made at the last ICIC last year about the importance of that. Interestingly, statistics seem to be telling us that this year, the number of women who have appealed is higher than ever. We're trying to not just increase overall awareness and participation, but also in groups that historically haven't used FOI as much. My question is based around the fact that I seem to hear more and more people who write letters asking for answers and don't get a timely or a full response. Resort to FOIs because it seems to be the only one that you will get back on time. I will admit that, frankly, there are two organisations in the region that I represent that I have given up writing questions to. I just FOI as a matter of course, which cost money to them. My question is of the FOIs that you look at. Are you happy that the responses that you've seen are fulsome and open rather than closed and focused on an issue that hasn't been asked? As you'd imagine, it's variable. To put it into context, we deal with about 0.8% of all the freedom of information requests made in Scotland. That's quite a high year. That's 0.8%. We also deal with the cases where people tend to be less happy with the outcome of the cases and have taken it to review and then to appeal to us. I don't want us to, by focusing in on that, to miss the fact that out of the applications made, I think about 75% thereabouts resulting in some or all of the information sought being provided and over 50% resulting in all the information being provided. I just want to put that into the context. However, in relation to the specific question about the cases that we see, which we come in, historically it tends to be into thirds. Of the cases that we get, we generally find in favour of the applicant a third of the time, in favour of the public authority a third of the time, and providing some additional information for the third third. That tends to be how it works. In the past year, in the reporting year 2021-22, it was closer, I think, to about 50%. 55% are partly or wholly in favour of the applicant. So it was slightly lower figure in favour of the applicant because there are more cases in favour of the authorities. There are cases that we see where we think that authorities have applied unduly narrow interpretations of requests, and if so, we comment on that in the decisions. Or if it doesn't go to decision, we will let the authority know that and see whether they will provide the additional information. That does happen. Of course, if anything was to go as high as a section 65 offence of deliberate concealment, that's another matter altogether, but we are seeing more allegations of those. We still have not seen a case on section 65 go to court. A variable picture, we do see some authorities not provide the quality of responses that we would want. If we see bad responses, we note those in a register and then that feeds into our intervention procedure. I don't know whether Margaret you can elaborate on how that works in practice. That is probably clear between the two of us. For example, in my team, if I have managed the investigation, any point that an authority would think—for example, the simple things that they are late, for example, if there hasn't been sufficient advice and assistance given, or we think that there have been overly restrictive narrow interpretation requests, things that we simply haven't played the ball with us, for example, on those things that are recorded. Passes over, and Claire's team does wonderful things with this report. We combine the intelligence that we gather from our case handling system and the stats that we receive. We look at that and analyse that on a quarterly basis and determine where we need to take action in terms of good practice to improve practice. It's a two-in-pronged approach. We'll have a decision that will go out, but they may pick up an intervention at later date to improve practice more generally. OK, so the final part of that question, if I may, is that I think I've got some FOIs that are four and a half months outstanding from one organisation. It doesn't surprise me that that sort of three months is standard. Do you know who the badly performing—is there a view of who is badly performing across Scotland? I'm not asking you to name and shame them, but I'm asking you, is there a view of who's not performing as well as they should? Do you think there would be some merit in publishing a league table of the worst offenders to try and get them to lift their standards? Because I think there may be some merit. There is certainly, in terms of the process that we've just mentioned there, that's the way in which we ascertain which authorities we are concerned about and have problems and need to improve their performance, and we will then proceed with an intervention to help them improve that performance. I do see interventions as a way of us helping the authorities because sometimes it's because staff have left, sometimes it's a lack of training, lack of awareness, but we want to target those things so that we can fix the problem and help the requesters. So in terms of the authorities which we think have got the greatest problems and have got the latest practice, the greatest practice difficulties, those tend to be the ones where you will see the higher grade of intervention. So the more serious the problem, the higher the intervention. So let's do interventions and we do publish that information. We have it on the website now, don't we? Not only do we publish our intervention activity reports, we also publish quarterly statistics, so all 510 Scottish Public Authorities report to our office on a quarterly basis on their performance, and that is published on our website. That will save me an FOI, and I better just check to see if my local authorities up there. Collette, can I come to you? Thank you very much, convener, and good morning to each of yous. I just wanted to look at the interventions element of it that you've touched upon, and just from the commissioner's point of view, just to seek your views on why there's been a 48 per cent increase in interventions to the information commissioner? Last year, we did a bit of work when we were looking primarily at publication schemes, because we did a lot of work in that area, we noted a few public authorities that we had to open interventions for to primarily look at their publication scheme, make sure that that was all up to date, so that was why there's a jump last year in the number of interventions at level 1. Okay, thank you. To what extent are the issues with the Scottish Government's FOI practice, how have they been resolved? Yes, so we obviously we've got the level 3 intervention ongoing with regard to the Scottish Government. That was one where we started off back in 2018 with the early work on that, getting the report, putting in place a work plan to make the improvements, and we saw substantial improvements in terms of timelines, timeliness. It was up in the 90 per cent. We saw training taking place, we saw substantial reductions in numbers of more trained individuals carrying out the case work of the thing, and everything was going brilliantly well until we got to early 2020 with the pandemic. As I alluded to earlier on, the infrastructure in relation to that disappeared. It was completely fragmented, and a lot of the work that had been done to put the systems in place to make everything work disappeared, and that caused obviously major issues in terms of timelines, performance, and inevitably quality as well. That will be an impact. Also with the pandemic, my planned assessment didn't take place in 2020. Last year we had our first detailed assessment for some time. When we drilled deep again, it was a mini deep dive into the performance, and we discovered for a two-year period, just before the pandemic and going to the year after the pandemic, and we noticed a number of areas that had improved. We saw improvements in terms of one, the most obvious one was journalists and researchers not being dealt with immediately by spads and ministers. The position was no longer a default. It depended on the seriousness of the case or the complexity of the case. There was a triage system to put it out to the appropriate bodies. We also saw that the FOI unit has greater visibility within the Government and was being listened to more, and was providing the expert advice in relation to this. We saw a shift away from what we'd seen in the first deep dive when there was more dispute. We saw the visibility and the value of the FOI unit increasing, so that was another very good point. Areas where we saw matters—and obviously performance is now back up at the mid-80s or mid-to-high-80s, we want to see that increase a bit more. In terms of where that goes from there, some of the downsides were really non-compliance with procedures. The procedures were now there. The first time when we looked, the procedures weren't very good, they were confusing, they didn't work. Second time, the procedures were there, but there was a lack of following them in some cases. There was a lack of recording information where it should be, and in particular in relation to cases where it had changed from being a case to be decided by officials into a case to be decided by ministers. Those were cases where we didn't always have the audit trail, and in many cases we didn't have the audit trail as to why things were not working. That's a problem. Generally, there was a problem in terms of providing us with reliable statistical data. The system being used wasn't fit for purpose, it wasn't working as it was meant to. That also meant that the Government wasn't getting the information that it really should have to enable it to monitor how its performances are working moving forward. I'm talking broad brush here, because I can provide any more detail to the committee if it wishes, but two big issues are broad brush. One is that increased training to comply with the procedures in greater detail and have fewer but better trained people dealing with the FOI requests. That is now happening. I'm seeing positive signs coming in the monthly reporting from the Government on that front. The other one is having the IT infrastructure that is fit for purpose for monitoring freedom of information requests in a way that will give them visibility of cases that are really late and it will allow them to track cases on the books, whether they've been dealt with in time, whether they've been dealt with by a minister or not, if it's changed, have a record as to why it's changed. It's that increased transparency that we're now looking for. That's what we're looking to test this summer before I leave. I want this tested to see where we are so that we can come to a view as to whether we have hit some of those final remaining points. It will be the summer that we will receive us anteroam performance report on that. That's when we'll certainly be doing the work on it, the report itself might go into early autumn hour report on it. Can I just quickly come in on one of the kind of moving away from the actual interventions aspect of it, but I just wanted to clarify in terms of the likes of Police Scotland. When you're putting an FOI into Police Scotland, for instance, there's obviously an element of sensitivity and security there as well. How do you clear the lines, if you like, in terms of what they can provide and what they can't? Yes. Essentially, over the years, we've built up quite a detailed number of cases. We've built up experience of the various exemptions and the application of those exemptions. Out of those, we've put together detailed guidance notes for the authorities to provide a degree of standardisation of approach, relying on the previous decisions that have been made. When it comes to any appeal, we get detailed submissions both from the applicant and from the authorities themselves, which then allows us to apply the specific exemptions. In relation to some authorities, there are more specific exemptions almost tailored for them. Margaret, I don't know if you want to mention and really shoot to the police some of the common ones in relation to law enforcement. I'm also just to mention, I also have quarterly meetings with the person that heads up FOI in Police Scotland just so we can deal with any particular issues that are coming up. Yes, for Police Scotland, there are obviously particular exemptions to do with prevention and detection of crime, particular law enforcement ones that they'll rely on, but they are subject to a public interest test, so they'll still be the consideration of whether the information should still be disclosed. Obviously, we're all covered by data protection, so Police Scotland will also, if it's related to a specific individual, particularly if it's in relation to a crime or a lead crime, then there's certain information that they can't disclose. They have Police Scotland perhaps of their own issues in terms of records management, for example, because of the actual costs of Scotland-wide requests, so it can sometimes take them over the limit of which they don't have to reply. I know that they are working hard on their records management. Final thing, I think, for Police Scotland, of all the public authorities in Scotland, they will use what we call the neither confirm nor deny provisions, where confirming whether information exists basically gives away. We'll let you know whether your next neighbour has been investigated for a crime or something like that, so they use that. There's a lot of stuff there to prevent the information that shouldn't be disclosed getting into the public domain, but we do give a lot of advice, obviously, throughout, not just the baffings, but also on a personal basis, as well as authorities, as well as inquirers or applicants. That's interesting. Thank you very much. If we just move slightly back to the interventions, the Scottish Government is currently at level 3, which means that they produce their plan, which you oversee for it. I know that you produced a report in May last year, or was it March last year, for the Scottish Government, and you're looking at doing another deep dive in respect of the plan that they've proposed. And then there will be a subsequent report on that. Is your hope at that stage that they can move from a level 3 intervention, or do you think the concerns that you have seen, and actually, to be fair, the size of the organisation, the complexity of data, particularly the statistical data that you talk about, is such that this may be an on-going best friend exercise where you're there to help and assist? I obviously can't prejudge what I'm going to find, convener, but all authorities are being monitored. If I put it that way, even at the end of an intervention, once an authority's intervention has completed, we still, as we've discussed earlier on, monitor the performance through the quarterly inputs from the authorities. Any additional information we receive from other sources and other intelligence all feeds into that, and then we'll look at those authorities. We have had cases where we've had authorities in interventions, they've improved, we've managed to enter the intervention, and then we see the performance slip again, and we get them back in again so that they know that they are monitored, and the improvement that we're looking for is sustainable improvement. We're not looking for quick fixes, and then they think that they can get away with it. The monitoring continues regardless. So you remain a critical friend for all organisations? You do, at first. I think it's also right, and probably to point out that there is one organisation that is currently at a level 4 intervention. Is there anything that you can say about how long you anticipate it remaining, because that's the highest level of intervention that you will undertake? In essence, a level 4 intervention means that we've used our formal powers in relation to that, so in this one, it was a practice recommendation for Aberdeenshire Council. That's something that we would expect to see at that intervention endeminently. That's very helpful. Bob, could I come to you? Thanks, convener, and thank you for your evidence so far. It's been really helpful. You mentioned at the start of your contribution that we're going through a period of change at some point you would be submitting office as well, and I'm sure we wish you well for the future when you're no longer in office. It's a day for changes, really. It's a time for changes. I don't think he's getting just enough. One thing is, we're not trying to be with him early, Mr Mountain was suggesting that this was your last day, I wasn't doing that. There's other transitions, because the Scottish Government's consulting and changes to, I think the constitution may be closed now, but it has been consulting on freedom of information. A number of changes suggested in relation to extending the organisation's subject to FOI, the use of section 5 to add bodies to that list, a gateway clause by which third-party organisations fulfilling public functions that maybe avoid FOI currently could be brought into the gambit of it. So quite a lot of potential changes there. Also potentially within the scope, I understand what I might refer to as the Hancock clause, and that would be the section 60 code of practice for informal communications such as WhatsApp and whether that guidance around that, whether that should be subject to FOI or otherwise. So quite a lot within the scope of that consultation. I'm not necessarily trying to draw your commission on your views on these, but in the first instance anyway, whether the Government's got the scope of that consultation just about right and any reflections that you'd wish to make. Not particularly on the Hancock clause, but more generally. No, no, no. Thank you very much for that. Actually, yes, we've been spoiled for choices like buses coming along at once. We had the two consultations, so we had the Scottish Government one, and we also had the private member's bill consultation. As you'll not be surprised, we've tried to ensure consistency of approach across both consultations. I'll do first of all with WhatsApp, because I know it's a topical issue, but it's also an issue that's been around for a while, and it's an issue that we have addressed throughout the years, and maybe most recently it was one of the issues that I raised in my second special report on the impact of the pandemic on FOI in Scotland, which was that increased use of social media by authorities and the importance of making sure that that information was captured and searchable and disposable. So that's one of the areas, and our guidance on this has actually been consistent for some considerable time. Looking at our guidance for public authorities includes the following. It suggests that we read our briefings and guidance, and looking at searches, we ask that they search which sets of records or data were recorded, which may be held, including information which may be held on WhatsApp or mobile phones, etc. In our section 17 briefing, we also refer to information held in other formats, such as WhatsApp's exchanges or recordings of Zoom meetings as well. So this is a point that's not new. It's a point that is recovered. We do have case law in terms of our decision notices in which we've specifically referred to this in the past and looked at such documents in the past, but it's a concern that the authorities be aware of it and know what platforms people within those authorities are having conversations on relating to their functions and making sure that those are recorded and searchable. Commissioner, just before you move on to the rest of the potential scope of consultation or indeed legislation, I'd particularly ask whether, and I have to admit that I have no expert on the section 60 code of practice, I may not read it out because it's in front of me, commissioner, but I now know it exists. I'm just asking whether or not there's the need for greater clarity and I should point out having, it was a glib comment calling it the Hancock clause of no particular desire to defend Matt Hancock in the slightest, but I'll make a serious point now, which is I can imagine those in positions of office and power wanting to communicate quickly and freely with a whole range of officials and stakeholders in very short condensed formats just for speed. They need to be really careful what they put on those platforms because not everything's captured in a text or on a bridged WhatsApp, so it's not just about shining absolute transparency and what those in power are really thinking, it's also making sure those in power are very clear about what the expectations are, so with that caveat, do we need to get a clarity and does that clause need to exist, commissioner? Does it need to be clarified or updated? The current section of 60 code does refer to checking of systems and that that doesn't only relate to IT systems but can include any other system, so there is reference there to something that could cover it. The code is probably due for a refresh, obviously it's not controlled by myself, it's issued by the ministers although the ministers do need to consult with me, I'm sure they do need to the statute requires that, sorry before I, they do need to consult with me before it's changed, but yeah I think the code is something that should be refreshed to keep it relevant to the particular issues of moment, in the meantime our guidance fills that whole and expands upon the statement in the code. That's helpful and my apologies I had cut you off in full flow there, you're going to mention other scopes of the, the rest of the scope of the consultation and the reflections on that. Yes, I mean I think it's crucially important that the consultation properly looked at the loss of information rights, the way in which the way the public services have been outsourced over the past 20 years since the Women of Information Scotland Act came into, was enacted, the changes during that time have resulted in loss of rights as more and more services are contracted out or delivered in other ways other than by purely public services. Now the section 5 order was a way of, was a way in which that was meant to be fixed in which it could be kept up to date, but there have only been three orders since the inception, the last one being the big one for registered social landlords, which was a very positive move, but the reality is it's not keeping pace and there's therefore a drive for another solution to the problem as to how does the legislation keep pace with the changes. I have in my consultation responses acknowledged that the current system is not working as quickly as we would like, however the concern of a gateway clause, which would just have one clause which would, depending on how it's worded, could increase the number of bodies subject to FOI hugely without necessarily giving clarity as to exactly which, whether body A or body B is subject to it, lack of clarity for the bodies themselves, for requesters and for the regulator. I have suggested a potential way forward whereby schedule 1 is examined in more detail so that the actual list in schedule 1 is looked at by parliament and parliament can look at specific sectors that it wants to be subjected to freedom of information potentially with a timeline attached on a coming into force timeline date. So that we can train up each sector, get them ready for freedom of information, ensure that the publication schemes are ready and have them best set to meet the requirements, increase the visibility of exactly which sectors are subject to it for the requesters so that they know who to go to and that they've got these rights and also certainty for us as the regulators. I think that this is a huge discussion. I think it's a really interesting one and it's one where I'm concerned if it goes the wrong way. We could have a lot of uncertainty and the system's workability that that sort of 75% of information being provided, I think that that could be really put at risk if it's not dealt with properly. Can I just check, commissioner? I do have one final question that I specifically want to ask before I get to that, convener. I don't want to misinterpret what you might be saying, commissioner, but it's almost if you're saying the Government and Parliament should take a considered almost incremental view on how we extend FOI on a sector by sector basis to consider the implications, get the balance right in each sector and implement changes accordingly rather than looking at everything all at once and trying to legislate at haste again. We have to consider the evidence that we've heard this morning and that might be something that I might have said in a private session where we were considering that evidence, but I don't want to misinterpret or analyse incorrectly I think that the points you're making there, commissioner. My concern is it's possible to have a gateway clause which would be drafted so as to include anybody which receives public funds or anybody which carries out public functions. The problem with a clause like that is what's the definition of public functions in that, how many public funds, how do we evidence, who's subject to it, how do we keep track of who's subject to it and my consultation responses go into a lot of detail on that specific point as to the benefits of the current system, the benefits of the gateway clause, the risks of both of those systems and what we have suggested as being a potential route that Parliament may wish to consider if it is seized of the issue in legislation. It's simply a regulator's view of the documents that were put forward for consultation, but we do go into a lot of detail on those specific points. Thank you, that's very helpful. Final question is, I understand that there was a very specific recommendation you made. I think that it was in relation to, was it session 5's public audit committee report, in relation to, you'd like to replace the current requirement for a public authority to maintain a publication scheme, that requirement currently exists, with a duty to publish information. I'd be quick keen to know the difference in relation to that, but I know that duty to be supported by a legally enforceable code of practice, so it'd be quite helpful for the committee to know the distinction between both those things and the difference that it would make. Publication scheme is essentially a scheme stating that you're going to publish information about specific pieces of information. That's then contained in a separate document, which is the authority's guide to information. It also sets out any charges and so on and so forth, so there are a number of provisions, but then it sets out the guide to information setting out the categories of information which are provided and the actual documents provided underneath that. It's quite a paper-based system. It's based on pre-I.T. concepts of access to the internet, and it doesn't very well reflect how information is actually published by authorities nowadays. Also what it does is it allows authorities to say, oh well, yeah, we've got the publication scheme. Yeah, we've got a guide to information, and it doesn't necessarily have that focus on the publishing of information, the pushing out of information that is in the public interest. What I would really love to see is that move, that sort of openness or transparency by design, move towards authorities wanting to push out information and the code of practice enabling and helping them push out information in a structured way, in a way that makes sure that information that's in the public interest is there and including requirements to carry out annual reviews to make sure that they're pushing out the information, that they've considered the freedom of information requests that they've received over the course of the year to see what the public's interested in and think about proactively publishing that information, which will help. So it's a shift in attitude almost more than anything else away from, I've got a document and therefore I'm complying with the law to thinking positively and proactively about pushing out as much information in an appropriate and accessible way for the public. Again, just so I don't misinterpret that, which I think is incredibly helpful, under the current situation it feels very process driven. I've got a policy, I've got a document, I've got a process, it's published, it sits there, I'm a compliant tick, let's move on and let's brace ourselves for what requests come in now and we've got a policy on how we process those requests rather than turning the whole thing on its head and saying, we're an open public body, how are we going to actively publish the information that we think is in the wider public interest for that transparency? I just want to make sure that I've captured it correctly because, again, we need to consider the evidence that we hear this morning. I think that that's a very nice way of putting it. It is exactly that shift away from undue process and towards just that desire and implementation of the desire to push out as much information in an accessible way to the public. Thank you very much. No further questions. Thank you, Bob. For clarity, as you said, you wait in eternity and then two buses come along at the same time. There is also the private members bill, which you've also responded to the consultation as one. Is there anything in respect of the private members bill that you were glad to see being proposed or indeed was in one bill but omitted from the other proposals? Certainly proposals on proactive publication was very much one that was welcomed seeing being pushed forward in the private members bill and also mentioned in the Scottish Government bill. If you will excuse me, convener, the two have somewhat merged in my mind, so I wouldn't be able to give you a blow-by-blow account of the differences and I'd be worried about making an error. No. There will be a time for that in due course. The final point that I wanted to make comes from your report, where in your statement you say that it's clear that a strong and effective FOI, freedom of information regime, and the openness and transparency it creates remains key in supporting accountability, strengthening participation and building trust in our public services. I was just going to echo that because of all that's needed. I think we've heard a lot of evidence today about the importance of FOI. We've had a hint at the challenges that Covid created when, for very obvious and understandable reasons, resources had to be moved in organisations to service other immediate needs. It is good to see that it's coming back, probably sad to see it's coming back quite as slowly as it does. I know that you are in the final period as our commissioner and I know that the committee will have an opportunity before you depart to talk again, but I wish you all well between now and that point. Thank you for attending today.