Scotland’s health secretary wanted to suspend freedom of information (FoI) legislation in response to the coronavirus pandemic, according to internal government emails obtained by The Ferret.
Jeane Freeman MSP made the request as the government was preparing emergency legislation in response to Covid-19, in response to a request for ministers to suggest items they felt were “urgently required”.
Commenting on The Ferret’s revelation, opposition politicians have accused Freeman of wanting the public to be “kept completely in the dark” over issues such as care home deaths and of promoting “secrecy and spin”.
In an email sent on behalf of the cabinet secretary, she requested the “suspension of FoI legislation in order to allow staff (NHS and local government, but potential to extend more widely) to focus on essential activities”.
Her suggestion went further than proposals already developed by the FoI Unit which involved giving public bodies significantly more time to respond to requests.
The emergency legislation passed on 1 April extended deadlines for public bodies to respond to FoI requests from the public from 20 to 60 working days. In some circumstances the Scottish Government could extend deadlines for bodies other than itself for another 40 working days.
However, MSPs rejected the proposals in May following an outcry, forcing the Scottish Government to withdraw emergency relaxations.
Responding to Freeman’s suggestion on 23 March, Penny Curtis, the Scottish Government’s head of elections and FoI division, laid out two options.
The first would see ministers “stick with that we’re proposing”, which was a blanket extension of FoI deadlines while the legislation remained in force. This was described as “proportionate but not over-reaching or removing people’s rights”.
The second option was to accept the suggestion of a “blanket suspension of FoISA for a Covid-19 period”.
Curtis wrote that this approach was “simple, offers certainty for public authorities, might be proportionate in response to the level of the emergency”. But she also warned that changes might be “too far-reaching” to gain the necessary support in parliament.
However, in a document produced by the FoI Unit on 19 March, the blanket suspension of freedom of information duties was described as “a substantial violation of Ministers’ commitment to openness and transparency”. Officials warned that such a move would face significant criticism from the public, opposition MSPs and the Scottish Information Commissioner.
This document also explored alternative options for “relaxing duties to comply” with freedom of information laws. It ultimately argued that a blanket extension of response deadlines to 60 working days – trebling the original period – was “the only feasible option to relax the requirements of FoISA in the short term.”
Officials also pointed out, however, that the Scottish Information Commissioner did not believe such a move was necessary and added that they were “not persuaded” that restrictions to freedom of information rights should be an “immediate priority.”
The emails were revealed after a freedom of information request by The Ferret, which was returned more than six months late.
A number of high-profile health stories in recent months have used FoI requests, including a BBC Disclosure investigation entitled The Care Home Scandal which was broadcast on 28 July.
In August 2020, information obtained through FoI requests revealed that hospitals in several parts of Scotland discharged patients to care homes despite them having tested positive for Covid-19.
Some public servants remain fixed on the idea that FOI is not an essential service despite everyone agreeing that transparency and accountability build public trust
Carole Ewart, Campaign for Freedom of Information Scotland
Carole Ewart, convener of the Campaign for Freedom of Information in Scotland, said some ministers fear freedom of information rights, seeing them as “an impediment” to tackling Covid-19.
“Parliament spoke clearly in May to restore FoI rights to a maximum 20 working day response time and to introduce a further layer of scrutiny so it could be reassured that people are accessing information so they can form an opinion about health services, about social care, about education,” she said.
Ewart also criticised the six-month delay in dealing with the The Ferret’s information request. She argued that “some public servants remain fixed on the idea that FoI is not an essential service despite everyone agreeing that transparency and accountability build public trust.”
She added: “The duty to proactively disclose and respond to information requests ‘promptly’ is undermined when staffing levels are reduced and there is no leadership on robust compliance.
“We call on the Scottish Government to deliver on the Scottish Information Commissioner’s recommendations to urgently improve its FoI practice and to ensure the FoI unit is fully staffed.”
Scottish Labour MSP Neil Findlay, who has campaigned for improved FoI access, told The Ferret: “The Scottish Government has an appalling record on freedom of information, and this was exposed prior to the Covid-19 crisis. However today’s revelations take this to a new level when we see the cabinet secretary for health requesting that freedom of information legislation should be suspended during the Covid-19 crisis.
During this crisis what we really need is maximum transparency, not a government desperate to cover up.
Neil Findlay Labour MSP
“We know that Jeanne Freeman goes out of her way to ensure that information on things like care home deaths and the treatment of older people is kept secret but it appears that she wanted the public to be kept completely in the dark. During this crisis what we really need is maximum transparency, not a government desperate to cover up.”
Scottish Conservative health spokesman, Donald Cameron MSP, accused the Scottish government of being “more interested in secrecy and spin than being straight with the Scottish public.”
“The SNP government’s attempt to use coronavirus emergency legislation as a means to undermine Scotland’s freedom of information law was shabby and cynical, even by their standards, and rightly met with cross-party opposition in parliament.
“It’s no surprise to now discover the health secretary wanted to actually suspend FoI.
“After all, it was only thanks to FoI that the public found out about the decision to send known Covid-positive patients from hospitals into care homes.”
A Scottish Government spokesperson said: “Clearly, the primary focus – as people would expect – was on the front-line response to the pandemic and helping to save lives. The suggestion was made to allow staff to focus on those essential activities.
“Ministers determined the temporary provisions would provide much-needed breathing space for authorities to respond. The commissioner was not opposed to legislative change and our stage 2 amendments reflected his suggestions for safeguards to protect information rights.
“We have been transparent throughout this pandemic and will continue to be going forward.”
