FOI, which marks its 20th anniversary this week, gives people a legal right to receive information from public bodies, with organisations only able to withhold information if the law allows it.

The right applies to public bodies across Scotland including the Scottish Government, local authorities, the NHS and Police Scotland, along with universities, colleges, housing associations and most schools.

The Commissioner’s call for reform comes following an announcement that the Scottish Government has delayed plans to take forward the extension of FOI to social care providers due to delays to the National Care Service Bill, and as a Private Member’s Bill to update FOI law is due to be laid in the Scottish Parliament.

Scottish Information Commissioner David Hamilton said: “It’s disappointing to learn that the Scottish Government has decided to delay its consultation on extending FOI to social care providers, leading to further delays in the provision of information rights to users of these key public services.

“Freedom of information has had a big impact in Scotland over the last twenty years, resetting the balance of power between individuals and organisations, supporting public engagement and improving the transparency and accountability of public services.

“However, after 20 years, there are parts of Scotland’s FOI law which are undoubtedly showing their age. It’s an undisputed fact that FOI has failed to keep up with changes in the way public services are delivered, and the extension of FOI rights to bodies that provide vital services like care homes is long overdue.

“Alongside this, there is also a need to update the FOI Act’s duty to publish information to reflect our digital age and introduce new measures to prevent the deliberate destruction of information to purposefully avoid disclosure under FOI.

“I would therefore urge the Scottish Parliament and Scottish Government to seize the opportunity to refresh, enhance and protect the public’s FOI rights, to ensure that they remain fit-for-purpose for the next twenty years, and beyond.”

Research published in May 2024 by ScotPulse found widespread public support for FOI the extension of FOI rights, with 93% believing that FOI should be extended to cover publicly-funded health and social care services (including care homes) and 89% agreeing that all organisations that provide public services under contract to a public body should fall within scope. Only 6% of respondents felt that FOI was a waste of public money – the lowest proportion since the question was first asked in 2011.

The Private Member’s Bill to reform FOI, which is being brought forward by Katy Clark MSP, is expected to be laid in the Parliament in the coming weeks.

Law firm Holmes Mackillop has advised social care service providers to establish procedures to routinely publish information ahead of the proposed new legislation.

Director and head of corporate Ralph Riddiough said that the Scottish Government accepts that the extension of information rights to private and third sector providers of care home and care at home services is consistent with the ethos of the legislation.

“This is not surprising, but neither is the caution being shown,” he said.

“Social care services are often stretched, and new administrative burdens come at a cost. Responding to FOI requests takes time and requires appropriate record keeping and searching procedures to be in place.

“Publication schemes are a barometer of the culture of an organisation and of the robustness of its information governance processes and protocols. As such, service providers could consider having publication schemes in place so that certain information is routinely published.”