Transparency watchdog Darren Fitzhenry

Information watchdog names bodies probed for ‘failures’

The Scottish Information Commissioner has intervened in ten different public agencies to try and remedy transparency failings over the last year, a report reveals.

Three Scottish councils, two schools, Prestwick Airport, the Scottish Further and Higher Education Council, NHS Tayside and Police Scotland were among those subject to a “level 2” intervention or higher over the last year. These interventions are triggered when the commissioner identifies “ongoing failures” at a public body.

The commissioner, Daren Fitzhenry, also described a high-profile investigation into the performance of the Scottish Government as their “largest and most complex yet.”

The probe into Scottish Government was launched after a group of journalists, including those on The Ferret, wrote an open letter alleging that officials were treating requests from the media differently to those from other sources.

Fitzhenry ultimately concluded that the way the government had been handling information requests was “inherently wrong” and ordered improvements.

Scottish Government breaching freedom of information law, says watchdog

East Dunbartonshire Council, Tayside NHS Trust, and the Scottish Further Higher and Education Council were all investigated for consistently failing to respond to requests within the right timescales.

According to Fitzhenry, the Tayside NHS probe “was prompted by an observation that NHS Tayside had responded to only 70 per cent of information requests on time over a seven month period. In addition to repeated delays dealing with requests at East Dunbartonshire, the watchdog “noted continuing significant delays in the council responding to the commissioner’s investigations.”

Both Aberdeen City Council and Prestwick Airport were probed over concerns that the public bodies were not providing information or attempting to restrict access to it by applying excessive charges.

Fitzhenry said that at Prestwick, officials had tried to withhold copies of its board minutes in response to a request. “We did not accept that Glasgow Prestwick Airport Ltd could refuse, on grounds of excessive cost, to respond to a request for its board minutes,” he said.

The City of Edinburgh Council was also investigated over concerns that it had frequently tried to apply inappropriate legislation to requests for information.

An Edinburgh council spokesperson said they had “reviewed the training and support in place to ensure that we use appropriate legislation when responding to information requests.”

The details were contained in the first annual report produced by Fitzhenry, who took over as commissioner in October 2017.

“Whoever seeks information, on whatever subject, and for whatever reason, the freedom of information (FoI) Act says they are entitled to receive it,” he said. “FoI opens the door to meaningful participation in our democratic society. It is from that openness, and the public participation it enables, that much needed trust in our public authorities can be rebuilt.”

Nearly three quarters of requests resulted in information being disclosed last year, he said. “It’s about what people want to know, not necessarily what authorities think they want or need to know.”

The report reveals that 75 per cent of all appeals to the commissioner were made by members of the public. Eleven per cent were made by people in the media, four per cent by voluntary or campaigning organisations, three per cent by prisoners, three per cent by private companies and one per cent by politicians.

It’s about what people want to know, not necessarily what authorities think they want or need to know. Daren Fitzhenry, Scottish Information Commissioner

A spokesperson for the Scottish Further and Higher Education Council said: “We take our FoI obligations very seriously and want to ensure that we perform to the standards laid down by the Scottish Information Commissioner. There was period during 2017-18 when we experienced a steep but short term increase in our usual level of FoI enquiries which meant it was challenging to comply with the required timescales.

“To reduce the risk of this happening again we have developed a freedom of information action plan and provided this to the commissioner. Since the end of January this year, we have responded to all requests within the legislative timescale.”

NHS Tayside said it had put together a plan after working with the commissioner. “The improvement action plan, which includes production of a freedom of information policy, training and awareness, updated protocol and updated staff leaflet, is now being implemented,” a spokesperson said.

Chief Inspector Steven Meikle, head of information management at Police Scotland, argued that improvements had been made. “In comparison to other public authorities, Police Scotland receives a substantial volume of FoI requests and the nature of the data we hold means it is inevitable that some information must be withheld from disclosure,” he said.

“Our compliance rate has been steadily increasing since the beginning of 2017 and is considered adequate by commissioner. We continually review and evolve our processes to improve our responses.”

He added: “All requests are answered in full, however on some occasions, we are unable to provide all of the information sought. This can be for a number of reasons – the information is not actually held by Police Scotland, the request would be too costly to process or the information must be withheld in terms of an exemption set out in the act.”

Karen Donnelly, chief solicitor at East Dunbartonshire Council said: “The council takes its responsibilities as regards the Freedom of Information (Scotland) Act very seriously and worked closely with the commissioner in 2016-17 to introduce new polices and procedures to support compliance with the requirements of the act, which resulted in a substantial improvement in performance.”

She added: “Since then the council has continued to refine these processes and further improve. This can be seen by the sustained success rate in meeting timescales.”

The council was currently joint third in Scotland as regards FoI response times, she pointed out.

Aberdeen City Council, Prestwick Airport and Tayside NHS Trust have also been asked to comment.

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