The efforts of departments in the Scottish Government to improve their freedom of information performance have been “disappointing”, according to Scotland’s information watchdog.
The Scottish Information Commissioner, Daren Fitzhenry, has named six government departments for “declining” or “uneven” progress in meeting deadlines for responding to requests under freedom of information (FoI) law.
Fitzhenry launched an investigation into the Scottish Government’s FoI performance after “serious concerns” raised by journalists, backed by The Ferret, were debated in the Scottish Parliament in June 2017. He has now published a report assessing the government’s progress so far in making agreed improvements.
Fitzhenry welcomed an increase in the proportion of FoI requests receiving responses within the statutory deadlines from 63 per cent in April 2017 to 91 per cent in 2018. But he pointed out that improvement since then had slowed with the rate remaining at 91 per cent up to May 2019.
“Problems continue in some business areas, and these must be addressed if further improvement is to be achieved,” he said.
“I have noted declining performance in some business areas following earlier strong compliance. Examples of this include the Directorate for Social Security and Education Scotland.”
Fitzhenry added: “There are also some business areas in which there has been uneven or generally disappointing progress. Examples of this include: Marine Scotland, the Directorate for Safer Communities, the Directorate for Learning, and Social Security Scotland.”
Under FoI law public agencies are meant to respond to requests for information within 20 working days. If they are asked to internally review decisions, they are also bound to respond within 20 working days.
Fitzhenry’s report also summarised the Scottish Government’s progress on improving clearance procedures, quality assurance, records management and monitoring. The full benefits of the government’s improvement plans will not be realised until “towards the end of this year” and will be assessed again in the summer of 2020, he said.
It is alarming that the Scottish Government has failed to fulfil its legal obligations on FoI in key areas of public concern. Carole Ewart, Campaign for Freedom of Information in Scotland
The Campaign for Freedom of Information in Scotland was “very disappointed” that FoI rights were proving so difficult to deliver more than 14 years after they came into force. “It is alarming that the Scottish Government has failed to fulfil its legal obligations on FoI in key areas of public concern,” said the campaign’s convenor, Carole Ewart.
“The need for statutory intervention should have been short term as it followed on from many years of constructive and supportive challenges highlighting practices which undermine FoI rights as well as failing to meet legal duties.”
The Scottish Government welcomed Fitzhenry’s recognition that it was now responding to 91 per cent of FoI requests on time. It pointed out that the number of requests had increased from 2,103 to 3,407 a year between 2016 and 2018.
“We are taking a series of actions to further strengthen our FoI performance across all our business areas,” said a Scottish Government spokesperson.
“Whilst all areas are working to improve, some have faced specific challenges, such as the 70 per cent monthly increase in requests to the Directorate for Social Security, at a time when Audit Scotland has recognised it is working at full capacity.”
Education Scotland suffered staff shortages but has now trained more staff and issued responses in time in April, May and June, the government said. Marine Scotland had received a high number of requests and was considering pro-actively releasing more information.
“The Directorate for Safer Communities acknowledges its performance has been uneven,” added the spokesperson. “They have instigated new procedures to manage FoI responses and implement improvement actions.”
Scotland’s FoI law is also being reviewed by the Scottish Parliament’s post-legislative scrutiny committee. It is planning to hear oral evidence in the autumn of 2019.
Police rapped for delay in releasing information
The Scottish Information Commissioner, Daren Fitzhenry, has also taken the unusual step of serving a legal notice on Police Scotland requiring them to release information on the “cyber kiosks” used to harvest data from mobile phones.
This is the second time in fours years that Police Scotland has been issued with a notice because it delayed supplying information to the commissioner. Since 2014 the commissioner has served nine other information notices, three on Scottish ministers and six on local authorities.
The Ferret asked Police Scotland in February 2019 to release legal advice and related information on plans to deploy cyber kiosks. The police had told a Scottish Parliamentary committee investigating the issue in January that it had received advice from the Crown Office.
Police Scotland also told MSPs that it was seizing more than 40,000 mobile devices a year from people. Cyber kiosks use advanced technology to get past passwords and encryption to read data on devices, prompting concerns about breaching privacy and human rights.
Police Scotland released a letter from the Crown Office, but kept some information secret. The Ferret then asked commissioner Fitzhenry to investigate whether the information had been withheld in the public interest.
But his investigation has now been delayed because Police Scotland has failed to supply him with information he has requested. “An information notice was issued as a result of a delay in the provision of information,” said Fitzhenry’s spokesperson.
“The information needed to investigate this case was not provided within our timescales, so we have issued an information notice in order to expedite the case.”
Police Scotland blamed pressure of other work for its failure to provide Fitzhenry with information. “Information was provided to the applicant following this freedom of information request however further details were exempt,” said chief superintendent, Alan Gibson.
“The applicant appealed our decision and we received a request from the Office of Scottish Information Commissioner (OSIC) asking that the commissioner be provided with the withheld information.”
He added: “On this occasion Police Scotland has been unable to meet the set timescales due to other business areas’ availability, competing demands and capacity which resulted in an information notice being issued.
“The notice recognises the difficulty meeting these timescales and requires Police Scotland to provide the information to OSIC no later than Friday 6 September 2019. Work is under way to ensure our submission meets this deadline.”