Freedom of information is a hard-won right

05 May 2015

THIS is an issue that needs to be confronted, says Kevin Dunion.

What has Europe ever done for us? Depending on the outcome of the general election, we may be assailed with claims that it is interfering and wasteful, with others stoutly defending its role in lowering trade barriers and upholding commonly agreed standards from Limerick to Limassol.

For example, it was through an EC directive, passed back in 1990 (and further strengthened by a new directive in 2003), that we acquired rights to access information on the environment. This was well before domestic freedom of information laws in Scotland, and in the rest of the UK, came into effect some ten years ago.

Now, at a time when there are real concerns that public services are being privatised or contracted-out, and consequently escaping from the obligations of FoI, these European-derived rights may prevent citizens’ rights to information being undermined. A particular feature of the directive is that it applies to private companies, if they are performing a “public administrative function”.

But what does this actually mean? It was only late last year that the European Court of Justice issued a judgment clarifying that it applies to entities “entrusted with the performance of services of public interest”, (including but not exclusively those in the environmental field) and which are “vested with special powers”.

This test recently led to an Upper Tribunal ruling that privatised water companies in England do have special powers, which include making compulsory purchase orders, powers to enter land and imposing hosepipe bans, enforceable through criminal sanctions. As a result, they must comply with environmental information requests.

Scottish Water remains in public ownership and so it has always been subject to the environmental information regulations and also to FoI law in Scotland more generally. But the point is the tests laid down by the European Court can be applied to the operators of other privatised services, including railway and energy companies (and perhaps also to some of the arms-length bodies set up by public authorities).

However, the information commissioners or courts cannot come to a view on the law without a request for information being made in the first place. It required dogged persistence by an angling organisation, Fish Legal, to force its request to water companies all the way to the European Court and back to a judge in England before the law was given effect.

It is difficult to recall a similar example pursued by a recognised voluntary body in Scotland, which is not to say significant requests have not been made by individual citizens and groups. It took a local shop steward to request the PFI contract that exposed the full costs of Edinburgh Royal Infirmary. A handful of parents used FoI to challenge the closure of rural schools, leading to a change in legislation. Questions from bereaved relatives helped expose the high levels of C difficile at Vale of Leven hospital.

However, it has always surprised me how few cases have been championed by third-sector bodies. The most recent annual report by the Scottish Information Commissioner shows only 3 per cent of appeals to her came from voluntary organisations, virtually unchanged from my time in the post.

Research by the University of Strathclyde suggests some reasons for this apparent inhibition. It found “almost half of all respondents stated that they would be discouraged from making a request because of a fear that it might harm working relations or funding relations or both.” The correlation was clear – the higher the level of funding an organisation receives from a public authority, the more likely they are to believe that using FOI could harm relations with the public authority. Given that almost all the organisations which responded were funded either wholly or in part by public authorities, such fears can have a chilling effect.

Many voluntary organisations were in the vanguard in pressing for freedom of information laws at a European and national level, and could be expected to be prominent requesters. We need to openly discuss why some are reluctant to be so, and consider who, without fear or favour, is willing to explore the potential of these hard-won rights.

This article was first published by The Scotsman on 5th May 2015

Kevin Dunion is honorary professor at the University of Dundee’s School of Law, was the first Scottish Information Commissioner and is a former director of Friends of the Earth Scotland.

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