Scotland’s freedom of information watchdog bowed to behind-the-scenes pressure from the Scottish Government to conceal information about legal advice on university tuition fees, The Ferret can reveal.
The Scottish Information Commissioner, Rosemary Agnew, retrospectively redacted sentences from one of her appeal decisions in 2013 after an agitated complaint from a government official worried about “particular sensitivities”.
She agreed to remove text from her report despite her own concerns that the government’s suggestion was “inappropriate” and would pose “a reputational risk to my office” because it would be seen as “a loss of independence”.
The Ferret can also disclose that the information that the government was so anxious to keep secret was that the Lord Advocate’s law officers had privately given ministers 12 legal opinions on tuition fees. This was an intensely controversial issue at the time.
In March 2016 Agnew admitted that she had delayed three decisions in the run-up to the independence referendum in September 2014. She also said she was considering delaying two decisions until after the Scottish election on 5 May because issuing them “could be interpreted as politically biased”.
Now new internal documents show how she initially resisted but then complied with an eleventh-hour government demand to delete information from one of her reports. The documents were released by Agnew in response to requests under freedom of information law.
The revelation has led to questions being raised about her independence from government. It is a “damning” indictment of her lack of political impartiality and creates “real doubts” about her ability to resist government pressure, according to one critic.
University tuition fees were a political hot potato in 2012 and 2013 because the UK government was making students pay them, while the Scottish Government was not. Fees ranged from £6,000 to £9,000 a year.
This led to a series of anomalies and legal challenges. Students from Scotland and other European Union countries didn’t have to pay tuition fees at Scottish universities while students from England, Wales and Northern Ireland did – and there were fierce arguments over what should happen in the event of Scottish independence.
In November 2012 a BBC journalist, Laura Francis, asked the Scottish Government for all the legal advice it had received on tuition fees. The government refused to disclose the information, initially on the grounds that it was legally privileged and then because they said it would cost more than £600.
Francis appealed to Agnew, who launched an investigation. On 29 May 2013 Agnew sent her resulting decision to Francis and the government.
Agnew agreed that the government didn’t have to release the information because it would cost too much. But she criticised ministers for failing to provide “reasonable advice and assistance” on how costs could be reduced.
The morning after Agnew had sent out her report, she was telephoned by a Scottish Government official demanding that she change it. The official’s name has been redacted from her three-page summary of the call released under freedom of information law.
“My position is we can’t tweak the wording because that is effectively changing the decision,” Agnew told colleagues. “To change as they suggest is more than simply correcting typos.”
The Scottish Government, however, thought that the wording could be altered. “I invited them to pay for me to take external legal advice on that if they felt strongly about it, but I was not going to do that for myself as I am clear about my position,” she said.
In her memo Agnew detailed the argument that ensued. There was “an inference that we were trying to make a point with this decision”, she said. This was “absolutely not the case”.
She described a government implication about what she should have automatically taken into account as “inappropriate”. If she were to accept the government’s view she “would not be exercising my powers properly and it would certainly not be impartial or independent,” she said.
A few days later, on 4 June 2013, Agnew emailed the government asking for a written explanation of why information needed to be kept secret. “I am sympathetic to the Ministers’ position on this, but have some concerns and questions which I feel only fair to raise with Ministers before agreeing to the request,” she said.
“It is in the public interest that the Commissioner is not only independent, but is seen to be independent. There is a reputational risk to my office that responding to such a request will be seen as a loss of independence and bowing to pressure from ministers.”
The government responded later the same day, but its reasons for secrecy and the text it wanted redacted, have all been blacked out on the email that has been released. If asked, it said that it would argue that releasing the information “would substantially prejudice the effective conduct of public affairs”.
The government said it “did not wish any information from our submissions to be divulged without our explicit consent”. It criticised Agnew for not being alert to the “particular sensitivities” surrounding the issue.
When The Ferret asked Agnew which decision was being discussed, she refused to say. “If I were to tell you to which decision the correspondence related, it would be possible to deduce information that we can’t disclose,” said her spokeswoman.
But we have confirmed that it was the tuition fees decision issued to Laura Francis. The version published on Agnew’s website on 5 June 2013 contained a series of strange and hitherto unexplained elisions.
At paragraph 23 it said: “The Ministers also explained that ”, suggesting that text has been omitted. Three other sets of square brackets in subsequent paragraphs indicate more missing words.
But in the version of the report originally sent to Francis, which she has shared with The Ferret, none of text has been deleted. It revealed that the government had 12 legal opinions on tuition fees from its law officers running to about 25 pages each.
It said: “The views of the Scottish Law Officers had been sought on matters involving the Scottish Government’s policies on tuition fees. A review of an index of those opinions had identified 12 which related to issues involving fees, support and wider public funding of higher education in Scotland.”
“They show that the Scottish Information Commissioner, Rosemary Agnew, has not met her own standards of political impartiality. In the end, and under clear pressure from the Scottish Government, she agreed to their demands.”
An earlier freedom of information request from McEnaney on standardised testing in schools sparked controversy about Agnew delaying decisions during the referendum and the election. “Serious questions must now be asked about other decisions Agnew has made,” he said.
“There are now real doubts about her ability to remain independent and impartial in the face of governmental pressure.”
McEnaney demanded “full disclosure” on the affair. “We need to know exactly why it was so important that the information in question was kept secret,” he said.
According to the Campaign for Freedom of Information in Scotland, there had clearly been a “major disagreement” between Agnew and the government. “Given the importance of the commissioner’s independence, it would be unfortunate if a public authority could dictate what information can be included in her review decisions,” said campaign convener, Carole Ewart.
“On one side the Scottish Government claims none of its documents can be quoted as part of a commissioner’s investigation without their permission, on the other the commissioner says the final decision rests with her. We now need urgent clarification about who is right.”
Agnew told The Ferret that she was in a difficult position. “You have me at something of a disadvantage because the fact remains that whatever is in the public domain that may appear relevant, I cannot disclose the details of cases: not even to clarify understanding of events, even if I want to,” she said.
“All I can do is re-iterate what I have already said in relation to the information I disclosed recently: the decision in question as issued to the parties, stands. I can reassure you that the communications by ministers absolutely did not alter the findings and outcome of the investigation concerned.”
She added: “I value my independence and have not, nor ever would, intentionally do anything to compromise it.”
A spokeswoman for Scottish Government said: “As the published information makes clear, the Scottish Government requested the information in this case be redacted because publication would substantially prejudice the effective conduct of public affairs.”