Too much secrecy exists in Scotland’s public bodies
By The Ferret, Investigative journalism bureau
The Scottish Government has been condemned by its freedom of information (FoI) watchdog for breaking the law by delaying and blocking requests from journalists, MSPs and political researchers.
After a one year investigation the Scottish Information Commissioner, Daren Fitzhenry, has strongly criticised the way Scottish ministers handled FoI requests as “inherently wrong” and ordered them to change their behaviour. Evidence gathered showed that requests from the media were more likely to be delayed and less likely to be answered than other requests.
“I have identified a number of areas where changes are required for consistency with both the letter and spirit of FoI law,” concluded Fitzhenry.
“Journalists, together with MSPs and political researchers, are expressly made subject to a different process for clearance than other requester groups. This is inconsistent with the applicant-blind principle of FoI legislation.
“Their requests are almost invariably subjected to an additional layer of clearance which is likely to delay the consideration of the case.”
The government’s practice of referring all media requests for clearance by political advisers “is contrary to the spirit of FoI legislation,” he said. “It is inherently wrong that a class of requesters is treated differently when processing requests for information solely because of who or what they are.”
In 2015-16 Fitzhenry said media requesters were “significantly less likely” to receive information, compared to other requesters. “The proportion of late responses and failures to respond was considerably higher for journalists, particularly in 2015-16 and 2016-17. In a number of 2016 and 2017 cases I observed unjustifiable, significant delays and disregard for the statutory timescales.”
Fitzhenry expressed concern that in 2016-17, the number of original decisions in journalists’ cases which were overturned, or partially upheld on review, was “considerably higher than the norm.”
He also accused the government of “several areas of poor practice” including “inadequate records management”, “inadequate recording”, “lack of clarity” and “insufficient levels of experience and training”. He made 16 recommendations for improving practice.
Fitzhenry’s intervention follows a letter from 23 journalists backed by investigative news bureau The Ferret in May 2017 accusing the government of frustrating FoI law. The letter from across the Scottish media prompted two debates in the Scottish Parliament, plus a unanimous vote condemning the government’s “poor performance” on FoI.
Fitzhenry said that some improvements have been made by the Scottish Government in the last year. His investigation involved interviews with four cabinet secretaries, including the Deputy First Minister, John Swinney, and 31 government officials. Over 7,300 FoI requests and 104 FoI case files were examined.
Minister for parliamentary business Joe Fitzpatrick, said the government accepted Fitzhenry’s recommendations in full.
“As the report highlights, we have already implemented a number of changes that have resulted in significant improvements to our FoI performance. In the first five months of 2018 we responded to 93 per cent of FoI requests on time, exceeding the 90 per cent target set by the Information Commissioner and a 10 per cent increase on last year.
Scottish Green MSPs urged ministers to act urgently. “This is a damning report, and vindicates the complaints of many journalists and researchers that Scottish ministers are slow and inconsistent in how they release information that the public are entitled to,” said Andy Wightman MSP.
“I welcome ministers’ commitment to implement the recommendations in full and urge them to do so swiftly in order to restore public confidence.”
Fitzhenry’s report was welcomed by the Conservative MSP, Edward Mountain. “There is clear evidence that this SNP government is not dealing with FoI requests in the spirit of the legislation,” he said.
“Many people will rightly make comment on the fact that MSPs and journalists are being treated differently to other people who have submitted FoIs and this is wrong. When it comes to FoIs everyone should be treated in the same way.”
He highlighted Fitzhenry’s suggestion that there was a “paucity of information” in the government’s FoI case files. “This is an appalling indictment of this SNP government and the way it has tried to cover its tracks and cover up bad news,” he added.
The Campaign for Freedom of Information in Scotland called on the Scottish Parliament to set up an independent inquiry into the government’s handling of FoI requests. “The commissioner declined to accept submissions from us, instead focusing on the complaints from journalists,” said campaign convener, Carole Ewart.
“Currently appeals to the commissioner from journalists stand at only 14 per cent of the total so that means a wide range of experiences were excluded from informing the process. Parliament must act on setting up the inquiry as well as embarking on the also agreed post legislative scrutiny of FoI legislation to check it is still fit for purpose.”
Meanwhile, a recent freedom of information response from the Scottish Government shows that ministers and their political advisers are given the names of individual journalists making requests. According to one expert, this could be illegal.
Alistair Sloan, a solicitor specialising in information law, argues that sharing the names of requesters could amount to “unlawful processing of personal data.”
Unless knowing a name has a direct bearing upon decisions to be taken it should not be passed on to anyone else in a public authority, he said. “I struggle to see how, applying the law, a public authority could justify the processing of personal data in that way.”
Two freedom of information requests about plans to replace the General Teaching Council for Scotland were referred by officials to the education and deputy first minister, John Swinney, in January and March 2018. Two journalists were named as the requesters, one of whom was Ferret contributor, James McEnaney.
The Scottish Government, however, denied that it was acting illegally. “The Scottish Government operates freedom of information practices in line with FoI law,” said a government spokesperson.
“Under the FoI law both officials and ministers are able to be informed of where an FoI request has come from. This is not specific to journalists.”