The Scottish Government’s freedom of information performance has collapsed during the coronavirus pandemic – undermining public accountability when it is most needed, the information watchdog has warned.
The Scottish Information Commissioner, Daren Fitzhenry, said that dramatic drops in ministers responding to freedom of information (FoI) requests in time were “extremely concerning”. They need to be addressed “as a matter of urgency”, he argued.
Figures in a new report from Fitzhenry reveal that Scottish Government FoI responses within the legal deadline of 20 working days fell from 97 per cent in February to 58 per cent in May. Over the same period internal FoI reviews in time dropped from 100 per cent to 43 per cent.
The falls are because ministers decided to redeploy half of the staff in the government FoI unit to “coronavirus-critical roles”. Remaining staff have been “refocused on providing core services such as triaging and allocating new requests”, the government said.
Scottish Government responses to freedom of information requests
|Month in 2020
|Initial responses in time
|Reviews in time
Fitzhenry pointed out that there had been “a significant and severe impact” on the government’s FoI performance”. While accepting that the pandemic was bound to cause disruptions, he highlighted the importance of transparency during troubled times.
He said: “At a time of crisis such as this, the right to information is more important than ever. It is therefore extremely disappointing to see the extent of the drop in FoI performance.
“It is crucial that the Scottish Government examine the factors which have contributed to this sharp drop in performance and address them as a matter of urgency.”
Fitzhenry’s report is his second assessing government FoI performance since he launched a regulatory “intervention” in November 2017. His move was prompted by a joint letter from journalists, including The Ferret, and two Holyrood debates in which ministers accepted their record had been “poor”.
The early months of Covid-19 had a “disruptive impact” on all areas of live and work so it was not surprising that the government’s FoI work had been effected, Fitzhenry said.
He added: “What is surprising, however, is the extent of this disruption, and the speed of the decline in the Scottish Government’s FoI performance during the first part of 2020-21. This decline is extremely concerning, and clearly requires immediate attention.”
The government’s established network of FoI case-handlers and reviewers had been disrupted by redeployment, while the FoI unit’s resources had been cut, he said. The government’s internal FoI network had been suspended, training had been delayed and work to resolve “significant records management issues” had been halted.
Prior to the pandemic, ministers were meeting FoI improvement targets, Fitzhenry pointed out. But he warned there was now “a significant threat to the success of this project”.
“Significant progress has been made to date as a result of the hard work of staff across the organisation, and there is a genuine concern that the benefits emerging from this work will be largely undone if focus is lost,” he said.
Progress on FoI performance was at a “fragile juncture”, Fitzhenry argued. It was vital that ministers acted “to divert attention and resources back towards FoI now,” he added.
“Failing to do so will send a dangerous message to staff and the wider public about the perceived importance of openness, transparency and accountability through FoI, at a time when the importance and public benefit arising from such characteristics has never been clearer.”
The Campaign for Freedom of Information in Scotland condemned the Scottish Government’s decision to downgrade FoI as “unacceptable”. Public access to information during a national emergency was crucial, the campaign argued.
“Given the need for public scrutiny during the pandemic and retrospectively, especially deaths in care homes, staffing levels in the FoI unit are key to continually and promptly providing transparency and accountability in the decisions and actions of government,” said the campaign’s convener, Carole Ewart.
“We call on MSPs of all parties to hold the Scottish Government to account for these strategic and operational decisions and secure commitments that it will comply with its legal duties and become a model of best practice on FoI law. We realise countries around the world are facing very challenging times but it is a matter of regret that in Scotland a choice has been made to neglect FoI rights.”
The Labour MSP and FoI advocate, Neil Findlay, described Fitzhenry’s report as “damning”.
He said: “The government’s track record on FoI prior to Covid was dreadful, now it has got even worse. During a period where major decisions have been made about the lives of citizens we should have absolute transparency not more cover up and secrecy.”
The Conservative MSP, Adam Tompkins, said: “It is completely unacceptable that the Scottish Government has gone backwards when it comes to responding to freedom of information requests. In this year of all years the need to be open and transparent with the public has never been more vital.”
In April 2020 the Scottish Government forced through changes in emergency coronavirus legislation allowing public bodies a fivefold extension to the deadlines for responding to FoI requests. This meant that people requesting information could end up waiting up to 10 months.
But The Ferret reported in May that opposition parties combined to force ministers to withdraw all their proposed relaxations. As a result FoI deadlines reverted to what they had been before the coronavirus pandemic.
The Scottish Government defended its record on freedom of information, pointing out that in 2019-20 it had responded to 95 per cent of requests in time. “We are pleased that commissioner explicitly commends our approach towards improving FoI performance over this period and acknowledges the hard work of staff across the organisation,” said a spokesperson.
“We have some concerns about the conclusions drawn in relation to the impact of the pandemic on our performance and how we respond to that. We recognise the danger of a loss of momentum and we remain committed to getting our improvement work back on course as soon as is practicable.”
The government spokesperson added: “The impact on the government of resourcing our response to the ongoing emergency, particularly in the early months, has been enormous, with large numbers of staff being redeployed and having to work extremely long hours. While the virus remains active, and in the absence of a vaccine, our priority must be to focus our resources on suppressing the virus.
“The response rate since the start of the pandemic was impacted by the organisational changes made to tackle the public health crisis, which continues to be the absolute priority. Despite the exceptional challenges of the Covid-19 crisis, we have seen a significant improvement in June, answering 79 per cent of FoI requests on time, providing a strong base on which to build going forward.”
New move to restrict freedom of information ‘alarming’
Section 36 of the UK Withdrawal from the European Union (Continuity) (Scotland) Bill, currently on its way through Holyrood, gives a series of powers to Environmental Standards Scotland to keep information secret.
But the FoI campaign said the proposed legal provisions were “entirely unnecessary” and could be “alarming”. They could prevent important information about pollution, wildlife and fish farms from becoming public, it argued.
“People and organisations will be making requests for information to Environmental Standards Scotland in the public interest so we don’t need this new layer of law to thwart publication of information which should be disclosed in the public interest,” said campaign convener, Carole Ewart.
“We are concerned that section 36, the temporary weakening of FoI rights for a seven week period and the dreadful report card issued on 10 September by the Scottish Information Commissioner on the Scottish Government’s FoI performance, provide evidence of a pattern of official behaviour designed to undermine access to information rights.
“We do not wish to see a loss in public trust in public authorities at a time when it is in our collective interest to build support for public services as we adapt to a society outwith the European Union and as we work together to stay safe.”
The Scottish Government, however, insisted that it would maintain FoI laws, including the right to environmental information, following the UK’s exit from the European Union (EU).
A government spokesperson said: “Despite the uncertainty of Brexit, the Scottish Government is committed to maintaining or exceeding EU environmental standards and has acted to ensure our environmental laws and regulatory systems are robust, including through Environmental Standards Scotland, which is designed to mirror the role of the EU Commission.
“The continuity bill will ensure we can remain aligned to the EU environmental principles and creates governance arrangements that fit Scottish needs and ambitions.”
This story was repeatedly updated on 10 September 2020 to include comments, and to add the final section on the Brexit bill.