Scotland’s newly-appointed freedom of information (FoI) commissioner has run into criticism because he previously accused the media of FoI “abuse” to produce “crud” about the police, and suggested reforming the law.
Campaigners expressed concern and disappointment over social media posts in 2020 by David Hamilton, the former chair of the Scottish Police Federation, who is to become Scottish Information Commissioner in October. He has also been given some gentle advice on his new role by a former information commissioner.
Hamilton was nominated by a cross-party committee of five MSPs and endorsed by the Scottish Parliament on 28 June 2023. He will be formally appointed for six years by King Charles III on a starting salary of £77,260 a year.
He retired as a police inspector in March 2023 after nearly 27 years with the police in Dundee and Glasgow. He was vice chair of the Scottish Police Federation, which represents police officers, from 2017 to 2020, and then chair until 2023.
In his new job as information commissioner Hamilton will be responsible for promoting and enforcing the public’s right to access information held by 10,000 public bodies in Scotland – including his former employer, Police Scotland.
When authorities breach FoI law, the commissioner has powers to formally intervene. Between 2017 and 2019, the current commissioner, Daren Fitzhenry, intervened with Police Scotland because of multiple failures to properly answer FoI requests.
In 2017 Fitzhenry launched a major intervention to remedy flaws in the Scottish Government’s FoI performance. In May 2022 he said there were still “widespread failures” in managing records and other problems, and he is currently monitoring compliance with an agreed action plan.
The commissioner also investigates and adjudicates in the public interest on appeals against authorities who have kept information secret. In 2021-22 there were 626 appeals under FoI law in Scotland, 55 of which were about Police Scotland. Nearly three-quarters of all appeals were from members of the public.
On 3 January 2020 Hamilton posted a tweet about a story in the Dundee Evening Telegraph reporting that a police car had hit 136 mph on the A90. It was based on a Police Scotland reply to a request under FoI law.
The Telegraph was getting a “roasting” for its “crud of the year” story, he said. “We simply can’t afford to spend precious resources on researching this guff. I’m a great believer in transparency but is it time to review FoI legislation in light of commercial media abuse?”
Hamilton added: “Maybe every FoI response to the worst offenders should be distributed to all media outlets and social media channels as a general media release?”
In response to critics on Twitter he argued: “Misuse of the legislation by some is not in the spirit of its intent. With rights come responsibilities. Self regulation would of course be a preferable route.”
He suggested that a police car legally driving at 136 mph on a dual carriageway in response to an emergency call was not a story. “Why must stretched @policescotland expend resource researching nonsense for a commercial newspaper column?” he asked.
He then tweeted a suggestion that those who publish information from FoI requests should be “legally required to publish the actual costs of producing that data and let their readers/viewers/listeners decide whether that is a good use of their hard earned taxes”.
Hamilton stressed it was about trying to find “balance”, adding: “FoI when used proportionately is a key element of public accountability.” In 2012 he criticised another media story about police bonuses as “lazy FoI journalism”.
‘Significant concern’ over FoI tweets
The National Union of Journalists pointed out that the Scottish Information Commissioner played a crucial role in enforcing the public’s right to know. “It is of significant concern to us when someone is appointed to such a finely-balanced role who has a past history of criticising journalistic requests,” the union’s Nick McGowan-Lowe told The Ferret.
The Campaign for Freedom of Information in Scotland was “disappointed” to read Hamilton’s past tweets, which several supporters had highlighted. “These social media conversations would have been identified by the Scottish Parliament after the most basic due diligence process,” said the campaign’s director, Carole Ewart.
“As the independent regulator of the Scottish FoI regime, the commissioner needs to protect the rights of requesters. Importantly, FoI law is applicant blind and the motivation for making an enforceable information request is immaterial to the process.”
Ewart pointed out that the new commissioner could take over the intervention on the Scottish Government’s FoI performance and should engage in proposed reforms to enable FoI law to catch up with how public services are delivered. “Previous incumbents have fulfilled their mandate effectively,” she added.
The trade union, Unison Scotland, urged Hamilton to live up to the example of previous commissioners, who had all been advocates of increasing transparency and openness. “The new commissioner’s track record does not inspire confidence, but it is the future that matters,” said the union’s policy officer, Stephen Low.
“Now more than ever we need a commissioner who will expand and enforce access to information rights and address the transparency gap so that rights follow the services, and aren’t restricted by the type of provider.”
FoI law ‘should be extended’
Kevin Dunion, who was Scotland’s first information commissioner from 2003 to 2012, pointed out that nearly a quarter of the appeals to the commissioner were about public authorities failing to respond.
“It will be important for the new commissioner to ensure there is no let up on the requirement for authorities to comply with requests promptly, from whatever source and without questioning the reason,” he said.
“I look forward to the new commissioner following in the footsteps of his predecessor by actively enforcing and promoting the right to information.”
Dunion, a former environmental campaigner who is now director of the Centre for Freedom of Information at the University of Dundee, urged Hamilton to “robustly” support calls for FoI law to be extended to include commercial contractors and other bodies that provide outsourced public services.
A spokesperson for the Scottish Parliament said: “Mr Hamilton’s nomination followed a full open recruitment competition and a cross-party selection panel of five MSPs. Both the sift and interview stage were overseen by an independent assessor to ensure the appointment process followed good practice.”
David Hamilton told The Ferret that it wouldn’t be “appropriate” for him to comment before he took up the post of commissioner in October. On 28 June he posted a message on LinkedIn saying that he was “delighted” to have been nominated for the job.
He said: “A huge responsibility and honour to serve Scotland and to ensure accountability, trust and transparency in our public bodies through the freedom of information.”