Holyrood deal blocks probe of Ministers FOI misuse. THE Scottish Government has avoided an independent investigation into a deliberate policy by Ministers to mishandle and undermine Freedom of Information requests.
Earlier today, demands for an independent review of how Scottish Ministers deliberately mishandle FOI requests from journalists & the public were thwarted after the Scottish Government struck a deal with the Liberal Democrats against a Scottish Labour motion calling for a probe.
Now, after months of work by the Scottish Information Commissioner’s Office on a report into the Scottish Government’s abuses of Freedom of Information laws (FOISA), the widely criticised anti-transparency attitude of Scottish Ministers will instead result in a ‘consultation’ on Libdem proposals to extend FOI coverage to private contractors providing services to the public sector.
However, the highly critical report published by the Scottish Information Commissioner earlier this month, found Scottish Ministers are operating a secret two-tier FoI regime – which deliberately & consistently obstructs the release of any information which is likely to embarrass them.
The report also found that journalists, MSPs and their researchers were subject to extra scrutiny, leading to deliberate delays (sometimes of many months) in requests being handled, despite the law saying the FoI system should be blind.
There is also anecdotal evidence in recent media reports that the Scottish Government’s anti-transparency attitude towards Freedom of Information compliance has trickled down to almost every single Scottish Public authority – including Police Scotland, the Crown Office & other key justice related agencies.
Today, during the Holyrood debate on calls for an independent probe of Scottish Ministers & their misuse of FOI legislation, parliamentary business minister Joe FitzPatrick agreed the deal with the LibDems instead of a fully independent probe into Scottish Ministers.
Mr Fitzpatrick said: “Against a backdrop of an ever-changing public service delivery landscape, where services traditionally provided by public authorities are now being provided by the third sector or private contractors, I'm conscious there are increasing demands to look again at the scope of coverage of the legislation.”
The full debate can be viewed online here:
Readers may also be interested in a retired journalist’s petition to bring a guarantee of honesty to Freedom of Information legislation, after it was found public authorities were distorting and in some cases, providing dishonest information in response to Freedom of Information requests.
Video footage of the proposal to the Scottish Parliament's Public Petitions Committee in April 2014, by retired Scotsman journalist William Chisholm MBE, can be viewed here:
However, and somewhat surprisingly, Rosemary Agnew - who was at the time, the Scottish Information Commissioner - and is now currently serving as the Scottish Public Services Ombudsman - blocked the attempt to bring a guarantee of honesty to Freedom of Information responses.
Video footage of Rosemary Agnew’s evidence to the Petitions Committee and her position against addressing issues of honesty in Freedom of Information responses, can be viewed here:
A full history of the work & report by the current Scottish Information Commissioner on the Scottish Government’s policy of undermining Freedom of Information requests, can be found here on the SIC website - which has published the following details:
Intervention Report: Assessment Phase
On 13 June 2018 the Commissioner published his report following the assessment phase of his intervention into the Scottish Government's FOI practice and performance. The full report is available to download below.
The report details the findings of the Commissioner's extensive assessment. These include:
It is an important principle of FOI law that, in most cases, it should not matter who asks for information. The practice of referring requests for clearance by Ministers simply because they come from journalists, MSPs and researchers is inconsistent with that principle.
The Scottish Government's FOI policies and procedures are not clear enough about the role of special advisers in responding to FOI requests.
The Scottish Government takes longer to respond to journalists' FOI requests than other requests, but in only one case did the Commissioner find evidence that delay was deliberate.
The Scottish Government's FOI practice has improved significantly over the last year, following the Commissioner's first intervention: average response times to all requests, including journalists' requests have reduced.
The Commissioner makes seven recommendations for further specific improvements to: clearance procedures; quality assurance of FOI responses; training; case handling and case records management; monitoring FOI requests and review procedures.
This assessment included:
Statistical analysis of data from 7,318 FOI requests received by the Scottish Government between December 2014 and December 2017
Inspection of 104 individual Scottish Government FOI case files
Examination of 87 appeals to the Commissioner about the Scottish Government's handling of FOI requests
Review of the Scottish Government's FOI guidance and procedures
Face-to-face interviews with 31 Scottish Government officials and four Cabinet Secretaries.
The Commissioner requires the Scottish Government to develop an action plan (for his approval) by 13 September 2018. The Commissioner will monitor and review the implementation of the action plan.
Read the Report:
Scottish Government Intervention - Assessment Report (PDF - 321 kB)
In November 2017 the Commissioner confirmed that he would be undertaking a further intervention into the Scottish Government's FOI performance. The Commissioner's letter to the Minister for Parliamentary Business provides background to the intervention.
Invitation to journalists to provide further information
On 13 December 2017, the Commissioner issued the invitation below to the signatories of a letter sent by journalists in May 2017 to the Scottish Parliamentary Corporate Body. He invited them to provide further evidence to help him frame accurately the assessment phase of the intervention.
The invitation provides useful information about the scope of the intervention and a list of the questions the assessment phase will focus on.
We will publish a summary of the responses to this invitation as soon as possible after the closing date for submissions (12 January 2018).
Terms of the intervention
The Commissioner wrote to the Minister on 2 February 2018 to set out the aims of the intervention, the methodology for the assessment phase and the questions the intervention will explore.
The assessment phase is due to begin at the end of February 2018.
Correspondence about the intervention
On 8 February 2018 Tavish Scott MSP wrote to the Commissioner about the intervention. You can read the exchange of correspondence below.
Previous articles by Diary of Injustice on Freedom of Information issues, including investigations by the Scottish Information Commissioner can be found here: Reports & investigations on Freedom of Information disclosures in the legal sector & public authorities in Scotland