The new Scottish Information Commissioner has launched an investigation into allegations that the Scottish Government blocked or delayed freedom of information requests.
Daren Fitzhenry’s intervention follows a letter from 23 journalists backed by The Ferret in May accusing the government of frustrating freedom of information (FoI) law. The letter prompted two debates in the Scottish Parliament.
The new move is under the commissioner’s enforcement regime and could lead to further action against the government.
Fitzhenry, who started work on 16 October, met with the parliamentary business minister, Joe FitzPatrick, on 25 October. In a letter to the minister released today, Fitzhenry says that he is now scoping an intervention into “issues of culture and practice” raised by journalists and MSPs.
These include “allegations of deliberate delaying tactics and requests being blocked or refused for tenuous reasons”.
Fitzhenry stressed, though, he will not be looking into allegations that government officials have failed to take minutes or record information about important meetings.
“My functions and powers do not extend to a consideration or determination of what information ministers ought to record about meetings with outside interests,” he says. “That aspect of the parliamentary debate cannot therefore form part of my intervention.”
Fitzhenry’s new move is in addition to an ongoing intervention against the Scottish Government begun in January 2017 by his predecessor, Rosemary Agnew. This was aimed at tackling the government’s repeated failure to respond to FoI requests within the statutory timetable of 20 working days.
Fitzhenry says that the government’s compliance with deadlines “has improved considerably over the past five months”. But he now thinks it’s necessary to launch a second intervention to examine other criticisms from journalists and MSPs.
Two parliamentary committees are also considering how to respond to a motion agreed by MSPs on 21 June calling for an “independent inquiry” into how the government deals with FoI requests and post-legislative scrutiny of FoI law.
The Public Audit and Post-legislative Scrutiny Committee has FoI law on a shortlist of laws it is considering examining. The Standards, Procedures and Public Appointments Committee has been in correspondence with the Scottish Parliamentary Corporate Body and the minister FitzPatrick.
Neil Findlay, the Labour MSP who triggered one of the parliamentary debates, warned that Fitzhenry’s investigation might not be enough. “I welcome the Information Commissioner’s continued involvement in this very important issue,” he told The Ferret.
“But we cannot have a fragmented or tokenistic examination or review. What we need is a systematic and independent inquiry into the way that ministers, special advisors and senior civil servants fail to record important meetings, and how this has been deliberately withheld from the public. This is the key issue.”
The Conservative MSP, Edward Mountain, who initiated the second parliamentary debate, was glad the debate was progressing. “We need more openness and FoI requests need to be answered on time without excessive redactions,” he said.
“We also need accuracy in recording meetings. It just isn’t good enough to pretend notes weren’t taken of meetings – that just indicates a lack of professionalism.”
The Campaign for Freedom of Information in Scotland welcomed the new enforcement action but cautioned that it could not replace the independent inquiry unanimously agreed by parliament. “Information requests must be answered within 20 working days and we expected the Scottish Parliament to follow a similar timeline,” said campaign convener, Carole Ewart.
“However, five months on neither the independent inquiry nor the post legislative scrutiny of the Freedom of Information Scotland Act have been confirmed and the public still don’t know where to send their evidence of concerns to, along with their suggestions for reform.”
Severin Carrell, one of the co-ordinators of the journalists’ letter and The Guardian’s Scotland editor, was pleased that Fitzhenry had acted. “We have had repeated problems getting access to material and information from the Scottish government and its agencies,” he said.
“We feel both our complaints and critical decisions on our appeals by the previous commissioner have been ignored. So having a robust, independent and formal inquiry into these questions is a very welcome development.”
The Scottish Government confirmed it had worked with the commissioner throughout 2017 as part of an intervention process aimed at improving FoI response times. “During this period response times for FoI requests and reviews have improved considerably, with 92 per cent of requests answered on time in September,” said a spokesperson.
“The Scottish Government is committed to improving its performance and will continue to engage with the commissioner as the intervention process continues to develop.”
The government has agreed a series of targets with the commissioner to improve response times. It’s aiming to meet 85 per cent of request and review responses on time over the rest of 2017, and then 90 per cent in 2018 and 95 per cent by 2020.
This story was updated at 16.55 on 16 November 2017 to include additional comments from Edward Mountain MSP and the Campaign for Freedom of Information in Scotland.
Photo thanks to the Scottish Information Commissioner.
