MSPs urge tougher information law to stop social media secrecy

Holyrood’s Public Audit Committee said the growing use of WhatsApp groups and private emails showed the law had failed to keep pace with changes in technology.

It said there should be more emphasis on creating clear information trails across the public sector, such as memos, emails, and minutes to show how key decisions were made.

With little official record of many government meetings, it said new legislation could set a requirement for certain key information to be recorded, including minutes of ministerial meetings or Scottish Government meetings with outside bodies.

Last year it emerged Nicola Sturgeon had been using her secret party email account to conduct government business for four years, despite a duty on civil servants to use formal channels for government business.

It later emerged SNP ministers were using three WhatsApp groups to communicate with each other and their political special advisers.

Although the information involved should in theory by covered by FoISA, the MSPs said there was a need for more clarity and proper record keeping.

The committee wrote: “The evidence received by the Committee suggests that there has been a shift in recent years in the level of information being routinely recorded in connection with official public business.

“A number of users of the Act have expressed concerns about the use of unofficial channels of communication, such as Whatsapp and private emails, and the extent to which such information is accessible under FoISA.

“The freedom of information regime is underpinned by effective record keeping and management. The Committee emphasises the importance of documenting and recording relevant information. It is clear that there should be no deliberate attempt to evade FoISA by failing to do so.”

The committee’s report, published today, follows a pre-coronavirus inquiry into the Freedom of Information (Scotland) Act, or FoiSA, which took effect from mid-2005.

The committee found FoI laws had failed to keep up reforms, and the blurring of the previous divide between the public and private sectors.

The result was many private firms involved in providing public services, and in receipt of significant public funds, were not covered by the right to access public information

The committee recommended the Scottish Government looks at introducing a “gateway clause” to automatically include companies and groups receiving public money or providing a service within the remit of the Act, allowing information on the spending of the funds and the provision of services to be accessed by the public.

The committee suggested a “factors-based approach”, extending the coverage law based on the extent to which an organisation delivered or helped delivery a public function, the degree of public interest in relation to the function, and the cost to the public purse in delivering the it.

The report also said FoISA should be amended to ensure public bodies and private firms cannot use confidentiality agreements to keep information secret, and said the First Minister’s absolute veto over FoI releases - never yet used - should be abolished.

Labour MSP Anas Sarwar, the acting convener of the Public Audit Committee, said: “Legislation must be robust, clear and enforceable.

“We heard in our evidence sessions suggestions of a shift in recent years in the level of information being routinely recorded in connection with official public business.

“We are absolutely clear that there should be no deliberate attempt to evade FoISA.

“Consideration should also be given to amending the legislation to make explicit that tools such as WhatsApp, texts and ministerial private email accounts are covered by FoISA.”

Opposition parties are currently trying to repeal a tripling of the time public bodies have to answer FoI requests introduced by ministers in emergency coronavirus legislation.

The Scottish Government was approached for comment.