On Monday 2 June 2025, Katy Clark MSP introduced her long-awaited Freedom of Information Reform (Scotland) Bill into the Scottish Parliament.

Katy Clark MSP, a Member of the Scottish Parliament for the West of Scotland, opened a consultation in November 2022 on a proposal to introduce a Members Bill to the Scottish Parliament to amend the Freedom of Information (Scotland) Act 2002 (FOISA). That consultation closed on 14 March 2023, extended from 2 February 2023 to coincide with the Scottish Government’s own consultation. A total of 96 responses were submitted to the consultation spanning the public, private and third sector as well as academics, professionals with relevant experience and members of the public. The analysis of the consultation response can be found on the Scottish Parliament’s website here. The consultations by Katy Clark MSP and the Scottish Government followed on from the post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002 carried out by the Parliament’s Public Audit and Post-legislative Scrutiny Committee which was carried out between 2019 and 2020; this, in turn, followed on from a vote in the Scottish Parliament in June 2017. It has, in short, taken almost 8 years to get to this stage. FOISA was last amended by the Freedom of Information (Amendment) (Scotland) Act 2013.

The Bill contains a number of important proposals; however, it should be borne in mind that this is not a Government Bill. The SNP administration is a minority administration and so they would need at least one other party to vote with them to defeat the Bill (more if it was the only Alba Party and/or independent MSP who voted with them to defeat the Bill). The proposal to introduce the Bill was supported by MSPs from three of the opposition parties. No SNP MSP supported the proposal to introduce the Bill.

General entitlement

The Bill proposes inserting a new subsection (5A) into section 1 of FOISA which would, if adopted by the Scottish Parliament, require a public authority to apply a presumption in favour of disclosure when considering a qualified exemption (i.e. one that is subject to the public interest test). This would bring FOISA into line with the Environmental Information (Scotland) Regulations 2004, which governs the access to environmental information held by Scottish public authorities, which provides for such a presumption in Regulation 10(2)(b).

The Scottish Government has previously taken the view that such an amendment is not necessary because there is already a presumption in favour of disclosure inbuilt within FOISA. However, the Court of Session held otherwise (for full disclosure, I appeared for the unsuccessful appellant in that case, which can be seen on the face of the court’s opinion) and permission to appeal to the Supreme Court was refused. The decision of the Court of Session means that, contrary to the view of the Scottish Government, there is no such presumption (a view which they continued to express in December 2023 (para 83), after the Court of Session had resolved the question). If the Scottish Government is of the view that there ought to be such a presumption in FOISA, or that it was the intention of Parliament when it legislated in 2002 that there was to be such a presumption, then it is difficult to see how they could not support this proposal unless they are proposing their own amendments in their own Bill.

Designation of Scottish public authorities

There are a number of ways in which people or bodies not covered by the FOISA can be covered. The first is for the person or body to be added to Schedule 1 (as typically happens when new public bodies are created by statute), either in primary legislation or through section 4 of FOISA. The other is by way of an order under section 5 of FOISA.

The Bill would insert a new section 5A into FOISA which would establish another new way of designating Scottish public authorities: parliamentary resolution. This power would apply where the person is not listed in Schedule 1 nor be capable of being added under section 4 and is neither a public body nor holder of any public office. Furthermore, the person would need to either appear to be exercising functions of a public nature or be providing, under a contract made with a Scottish public authority, any service whose provision is a function of that Scottish public authority.

This provision is, as the policy memorandum confirms, is to enable the Scottish Parliament “to take the initiative on the pace and detail of designation” while ensuring that “designation is measured, understandable and enforceable.”

This appears to be a novel provision whereby Parliament could designate a person as a public authority without the need to pass an Act of the Scottish Parliament. There is a requirement for prior consultation by a committees or sub-committee before it makes such a resolution.

Publicly-owned companies

The Bill contains a provision to fix a lacuna in relation to publicly-owned companies. The Bill would mean that companies which are owned by the Scottish Ministers and any other schedule 1 authority (except where such an authority is listed only in relation to information of a specified description) would be a Scottish public authority.

Pro-active publication

The publication scheme model adopted by the Freedom of Information Act 2000 and FOISA has often been criticised as being out-dated and not going far enough when it comes to pro-active publication. This Bill, if passed into law, would amend FOISA by repealing the sections relative to publication schemes and instead create a duty upon Scottish public authorities to take reasonable steps to “(a) organise and keep up to date the information, relevant to its functions, which it holds, and (b) make that information available to the public in an accessible form and manner.” In doing Scottish public authorities would be required to have regard to a statutory code of practice issued by the Scottish Information Commissioner (and any revised version thereof).

Compliance with this new code would be policed by the Scottish Information Commissioner who would gain enforcement powers in relation to this new code of practice (along with the existing codes of practice issued under sections 60 and 61 of FOISA).

Freedom of Information Officers

The final proposal in the Bill that I wish to look at in this post (there are, of course, more proposals in the Bill) is the one to require Scottish public authorities to appoint a Freedom of Information Officer. This proposal is based on the role of the Data Protection Officer in the UK GDPR.

The policy memorandum states that the “objective is to embed a professional culture, underpinned by sufficient resource and authority, within organisations when it comes to handling requests and publishing information.” The policy memorandum also points to the requirement under section 1(2) of the Public Records (Scotland) Act 2011 as support for this proposal.

As stated at the outset of this post, the Bill has not been introduced by the Scottish Government (which previously ruled out primary legislation in its response to the consultation that it held on FOI reform) and so it is therefore not guaranteed to become law. Bills introduced by back-bench and opposition MSPs typically have a greater chance of success than their equivalent (Private Members Bills) do in the UK Parliament. Furthermore, the current Scottish Government is a minority administration which also increases its chances. However, MSPs from only three parties represented within the Scottish Parliament supported the proposal for the Bill.

The next elections to the Scottish Parliament are scheduled for May 2026 so it will be interesting to see whether this Bill makes it through Parliament during what is the final gasp of this session of the Scottish Parliament and what it looks like should it become an Act of the Scottish Parliament.

_{Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.}