Scotland’s freedom of information commissioner, Rosemary Agnew, has unreservedly apologised for a “misleading” email suggesting she would delay decisions critical of Scottish ministers in the run-up to this year’s election.
She was criticised after one of her staff said that she had “decided not to issue any decisions which might put forward a critical view of the ministers” between now and polling day on 5 May 2016.
That prompted an outcry from the left wing political alliance, Rise, who questioned whether Agnew was bowing to Scottish Government pressure. It has submitted a freedom of information request to the commissioner asking for any dealings she’s had with the government on the issue.
But now Agnew has taken the highly unusual step of issuing a statement to the Scottish Parliament. “Unfortunately, the breakdown in communication here meant that a misleading and premature email was sent by this office to the applicant,” she said.
“I take full responsibility for this failure in our systems and apologise unreservedly for the inconvenience and distress caused. I can assure Parliament, that I have not, and will not delay issuing decisions simply because they are critical of Ministers (or any other Scottish public authority).”
We are alert to the need for care during the election period to avoid any suggestions of bias in the issuing of decisions, particularly involving Ministers Rosemary Agnew, Scottish Information Commissioner
Agnew has sent letters of apology to two applicants who were told their cases would be delayed because of the election. She has also promised to respond to Rise’s freedom of information request by releasing as much documentation as possible.
Agnew insisted, however, that she did have to consider whether to delay particularly controversial decisions. “Any such decision to delay is rooted clearly in avoiding bringing this office into disrepute by issuing decisions that could be interpreted as politically biased,” she said.
“I am mindful of the need to be both impartial and to be seen to be impartial at all times, so we are alert to the need for care during the election period to avoid any suggestions of bias in the issuing of decisions, particularly involving Ministers.”
She revealed that she had delayed three decisions in the weeks leading up to the Scottish independence referendum in 2014 because “publication would be seen as biased on my part”. One was in response to an appeal by the Daily Telegraph journalist, Simon Johnson, and criticised the government for failing to release all the details of expenses incurred by Team Scotland during the 2012 Ryder Cup visit to the USA. It was published on 22 September, four days after the referendum.
Agnew also delayed a decision on an appeal by the Sunday Post journalist, Andrew Picken, on travel and hotel bills incurred by the then First Minister, Alex Salmond. It was also published on 22 September, expressed “significant concerns” about the way the government had handled the case and ordered the release of the names of international hotels.
A third decision which Agnew said had been delayed was about legal advice on access to Scottish universities. It found in favour of the Scottish Government and was published two weeks before the referendum.
In her statement to the Scottish Parliament, Agnew also disclosed that she had sent an email to her staff on 16 March warning them to “avoid doing anything which could distract attention from or compete with the election campaign.”
The email stated: “This affects all of us – although decisions are likely to be the most risk, particularly if the decision is very critical of the Scottish Government and deals with a high profile matter.”
This is not only completely unsatisfactory, it is deeply worrying, and calls into question the role of the commissioner. James McEnaney, Rise
Agnew’s statement was condemned as “completely unsatisfactory” by Rise education spokesperson, James McEnaney. It was his freedom of information request that prompted the argument over Agnew’s alleged bias.
“Today’s statement confirms that the Scottish Information Commissioner delayed publishing a decision on my appeal because of the potential political consequences of that appeal,” he said.
“In doing so, the commissioner has acted politically, effectively shielding the Scottish Government from criticism . By protecting the government from the release of damaging information – and therefore trying to void accusations of ‘bias’ – Rosemary Agnew is keeping voters in the dark. She is restricting their ability to make a fully informed choice ahead of the election.
“That is against the spirit and the letter of freedom of information legislation. Indeed, it defeats the very point of that legislation. The commissioner has attributed this controversy to a single badly worded email. But today’s statement confirms beyond all doubt that the problem extends well beyond miscommunication.
“We now know that the SIC is basing some its decisions, and the timing of the release of those decisions, on political – not public interest – grounds. This is not only completely unsatisfactory, it is deeply worrying, and calls into question the role of the commissioner.”
Agnew said: “I consider it only responsible as an office holder that I consider my own impartiality and make carefully considered decisions about when it is appropriate or inappropriate to issue decisions, taking into account other legislation and restrictions. The presumption is always that decisions will be issued at the earliest possible opportunity and reasons to delay must be exceptional.”
Civil servants are traditionally bound to limit their government promotional activities for a month or more before elections or referendums, a period commonly known as “purdah”. But Agnew and her 22 staff in St Andrews are not civil servants, as she is funded by the Scottish Parliament, not the Scottish Government.
The Ferret has established that the Scottish Information Commissioner has previously issued decisions critical of Scottish ministers during purdah. It is understood that Agnew’s predecessor, Kevin Dunion, decided not to delay decisions because of elections.
Information from the commissioner’s office shows that Agnew issued seven decisions about the Scottish Government in the purdah declared from 22 August to 18 September 2014 before the Scottish independence referendum. Five of them were critical of the Scottish Government (see table below).
During purdah from 23 March to 5 May 2011 before the last Scottish election. Dunion issued four decisions, one of which was critical of the government. In purdah before the previous Scottish election on 3 May 2007, he issued one decision criticising the then Scottish Executive for withholding information on free personal care.
In an email responding to criticisms from Rise, the commissioner’s head of policy, Sarah Hutchison, stressed that decisions involving ministers had been, and would continue to be, issued in the run-up to elections.
She said: “We cannot recollect a single occasion in the history of freedom of information in Scotland (since January 2005) that we have held back a decision during an election period.”
Freedom of information decisions in purdah
|3/4/2007||Mr Paul Hutcheon||Scottish Executive||Free personal care policy||Ministers had incorrectly withheld some information|
|23/3/2011||Mr David Rule||Scottish Ministers||Relations between Scotland, UK and China on Copenhagen climate summit||Ministers had incorrectly withheld some information|
|18/4/2011||Mr Eddie Cairns||Scottish Ministers||Complaints handling procedures||Ministers acted correctly|
|20/4/2011||Dr Sandy Spowart||Scottish Ministers||Grants for small and medium-sized businesses||Ministers entitled to withhold information|
|20/4/2011||Dr X||Scottish Ministers||Personal data||Ministers acted correctly|
|28/8/2014||Mr Paul Hutcheon||Historic Scotland||Breakdown of spending on Bute House||Ministers failed to respond within statutory timescales|
|1/9/2014||Mr G||Scottish Ministers||Privileged correspondence on legal aid||Ministers failed to respond within statutory timescales|
|4/9/2014||Mr Andrew Dundas||Scottish Ministers||Legal advice on access to Scottish universities||Ministers entitled to withhold information|
|9/9/2014||Mr Q||Scottish Prison Service||Reporting of telephone faults||Information was incorrectly withheld|
|11/9/2014||Mr X||Scottish Ministers||Legal advice on the Children and Young People (Scotland) Bill||Ministers entitled to withhold information|
|11/9/2014||Mr R||Scottish Prison Service||21 academic publications||Failure to give proper notice|
|16/9/2014||Mr S||Scottish Prison Service||Allocation of gym places||Failure to provide all the information held|
Rise parliamentary candidate and Common Space columnist McEnaney asked the Scottish Government for information about standardised tests in schools. Because some correspondence was kept secret, he appealed to Agnew to overturn the decision.
On 22 March 2016 McEnaney was emailed by one of Agnew’s freedom of information officers, whom The Ferret has been asked not to name. He was told that a decision on his appeal would be delayed until after the election on 5 May because of purdah.
“Although it does not affect the Scottish Information Commissioner directly, she has decided not to issue any decisions which might put forward a critical view of the Ministers,” the email said.
When this was queried by Rise’s press officer and journalist, Jamie Maxwell, the freedom of information officer discussed the issue with Agnew before responding. “It is critical that she remain impartial in the run up to an election, whether a decision is critical of the Ministers is not the main focus of our consideration,” the officer said.
“What we are mindful of is the impact of issuing a decision before an election which could be viewed as the Commissioner failing to act impartially in the circumstances. We would consider delaying any decision which, in our judgement, met that criteria.”
This was followed by another email from Hutchison “correcting” what McEnaney had originally been told. The initial email to him should have been “more heavily caveated”, she said.
“It is important to stress our central concern is not the risk of criticism of Ministers but the importance of maintaining the Commissioner’s impartiality,” she wrote.
“We monitor the circumstances of individual cases to help us decide on the appropriate course of action. In the rare event that issue of a decision during the election period might be viewed as less than impartial, we could decide to postpone it.”
The Ferret has published the full email exchange, with some names and email addresses redacted, below. Agnew’s full statement to the Scottish Parliament is also below.
The emails in full
Rosemary Agnew’s statement in full
Photo credit: Office of the Scottish Information Commissioner.