Scotland’s information watchdog is threatening tough legal action against Scottish ministers for repeatedly failing to respond to information requests, The Ferret can reveal.
Rosemary Agnew, the retiring Scottish Information Commissioner, describes the performance of ministers on freedom of information as “totally unacceptable” and “rude”. They are denying citizens their legal rights and damaging public trust in government, she warns.
She has given ministers six months to make improvements, and will respond with “the full force of the law” if they fail. “I wouldn’t say I’m slapping them yet, but I’m definitely threatening to slap them hard,” she says.
Agnew is stepping down as information commissioner on 30 April after five years in office. She starts work the next day as the Scottish Public Services Ombudsman dealing with complaints against public bodies.
She is confident that her successor as information commissioner will pursue the action she has started against the Scottish Government. Applications for her job close on 24 April.
In an interview with The Ferret in her office in St Andrews, Agnew revealed that she had received eight appeals in 2016-17 in which Scottish ministers had simply failed to respond to requests for information. Four of the requests were from journalists.
There had been an “ongoing issue” with ministers since she started monitoring failures to respond in 2013-14, she said. Ministers were the subject of 10 appeals for failing to respond in 2015-16 and 25 in 2013-14.
She has now taken the unusual step of informing ministers that she is “dissatisfied” with their performance, and has launched a formal intervention process to force improvements. Government responses to freedom of information requests will be closely monitored until September.
“They have got to demonstrate that they have improved their response rate,” she said. “We will take action if they don’t improve.”
The information commissioner has legislative powers to issue a “practice recommendation” requiring action, and to take enforcement action. “I have the full force of the law behind my back,” Agnew warned.
“Whether it’s the media, whether it’s a campaign group, whether it’s an engaged citizen, it is not acceptable to ignore them,” she said. “It’s totally unacceptable.”
As well as denying people their legal rights to information, it was damaging government credibility, she argued. “People have to be able to trust public services, and how you make your information available is fundamental to helping build that trust.”
Failing to respond “will undermine that trust,” she said. “It can ultimately undermine relationships between citizens and state that are really important, especially in an environment that changes as rapidly as ours is at the moment. I just think it’s rude as well.”
The intervention against the Scottish Government will be highlighted in the commissioner’s annual report, due out in the autumn. Agnew is also planning to submit a final report to the Scottish Parliament before the end of April.
Campaigners have welcomed Agnew’s move. “We are disappointed that the commissioner has been forced to take this action but welcome this robust response to ensure that the enforceable right to access information is respected,” said Carole Ewart, convener of the Campaign for Freedom of Information in Scotland.
She pointed out that a pattern of avoiding freedom of information requests would not have come to light without people asserting their rights. “The commissioner’s action occurs at a time when there is growing disquiet that access to information rights in Scotland are being weakened by stealth and omission,” she added.
The Scottish Government stressed that it took freedom of information responsibilities seriously. “In the large majority of cases we respond on time and in full,” said a spokeswoman.
“The number of freedom of information requests received has been steadily increasing with more than 2,000 requests received in 2016, and more received in the first three months of this year than in the whole of 2007. We are working with the Scottish Information Commissioner to address her concerns.”
Photo thanks to the Scottish Information Commissioner.
