Information access rights in FOIA and FOISA – fit for purpose?

The Freedom of Information Act 2000 (FOIA) enacted by the Westminster Parliament applies to public authorities in England, Wales and Northern Ireland and to UK public authorities that operate in Scotland e.g. the BBC, whilst the Freedom of Information (Scotland) Act 2002 (FOISA), promulgated by the Scottish Parliament, applies to Scottish public authorities. Both Acts commenced on 1st January 2005, and have been hailed as success stories – helping the public and the press to obtain information on issues such as: problems with a nuclear reactor, inadequate health services, school closures, a lack of suitable quality housing for people with disabilities and so forth. Nevertheless, FOIA has been described as ‘a brilliant piece of trompe l’oeil, a sheep in wolf’s clothing,’ appearing to offer a legally enforceable right of access to governmental information subject only to specified and justifiable exemptions when, in fact, it offers weak information access rights. By contrast, it has been asserted that ‘Scotland has most robust Freedom of Information regime in the UK.’ A two-strand approach is used to test the veracity of these claims and determine whether both jurisdictions have freedom of information laws that are fit for purpose as the Acts enter their second decade. Firstly, an assessment of the degree of compliance of both Acts with principles that have been endorsed by the United Nations as forming the normative foundations of freedom of information laws is undertaken. Secondly, the Acts are compared to ascertain whether FOISA does in fact offer stronger information access rights than FOIA, and if so, what lessons the UK could draw upon to strengthen FOIA. The analysis will demonstrate that the Acts are creatures of their respective Parliaments and that distinct ‘political cultures’ have influenced their evolution over the past ten years leading to significant divergences between the two. It concludes that, at present, FOISA offers stronger information access rights whereas FOIA offers weaker rights, but both Acts should be amended to ensure full compliance with the UN endorsed principles if both jurisdictions are to have information rights that are fit for purpose as the Acts enter their second decade.