Transparency watchdog Darren Fitzhenry

Scottish Government breaching freedom of information law, says watchdog

The Scottish Government has been condemned by its freedom of information (FoI) watchdog for breaking the law by delaying and blocking requests from journalists, MSPs and political researchers.

After a one year investigation the Scottish Information Commissioner, Daren Fitzhenry, has castigated the way Scottish ministers handled FoI requests as “inherently wrong” and ordered them to change their behaviour.

Detailed evidence gathered showed that requests from the media were more likely to be delayed and less likely to be answered than other requests. This could damage trust in the Scottish Government, he warned.

Opposition politicians described Fitzhenry’s report as “damning”, saying that it vindicates formal complaints made by journalists across the Scottish media a year ago. The Scottish Government has promised to implement the report’s recommendations “in full”.

In a 44-page “intervention report”, Fitzhenry has delivered an unprecedented critique of government FoI practice. “I have identified a number of areas where changes are required for consistency with both the letter and spirit of FoI law,” he concluded.

“Journalists, together with MSPs and political researchers, are expressly made subject to a different process for clearance than other requester groups. This is inconsistent with the applicant-blind principle of FoI legislation. Their requests are almost invariably subjected to an additional layer of clearance which is likely to delay the consideration of the case.”

The government’s habit of referring media requests for clearance by political advisers “is contrary to the spirit of FoI legislation,” he said. “It is inherently wrong that a class of requesters is treated differently when processing requests for information solely because of who or what they are.”

The spirit of FoI legislation had been “offended”, he argued. “Trust between those groups mentioned in the policy and the Scottish Government may also be damaged.”

In 2015-16 Fitzhenry said media requesters were “significantly less likely” to receive information, compared to other requesters. “The proportion of late responses and failures to respond was considerably higher for journalists, particularly in 2015-16 and 2016-17. In a number of 2016 and 2017 cases I observed unjustifiable, significant delays and disregard for the statutory timescales.”

He added: “Given the paucity of information in case files I did not find evidence of deliberate delay, except in one case where the response was postponed until publication and a handling plan were finalised.”

Fitzhenry expressed concern that in 2016-17  the number of original decisions on journalists’ cases which were overturned, or partially upheld on review, was “considerably higher than the norm.”

He also accused the government of “several areas of poor practice” including “inadequate records management”, “inadequate recording”, “lack of clarity” and “insufficient levels of experience and training”. He made 16 recommendations for improvement.

Fitzhenry’s intervention follows a letter from 23 journalists backed by The Ferret in May 2017 accusing the government of frustrating FoI law. The letter prompted two debates in the Scottish Parliament, plus a unanimous vote condemning the government’s “poor performance” on FoI.

Scottish ministers under fire for freedom of information breaches

Fitzhenry said that some improvements had been made by the Scottish Government in the last year, but there were still differences in how journalists were treated. Media requests waited an average of two days longer than others, and 25 per cent of responses to the media were issued late, compared to 21 per cent for others.

“I recommend that the Scottish Government ends its practice of treating journalists, MSPs and political researchers differently when processing requests for information,” he stated. Ministers now have to produce a draft action plan for Fitzhenry’s approval by 13 September 2018.

His investigation involved interviews with four cabinet secretaries, including the Deputy First Minister, John Swinney, and 31 government officials. Over 7,300 FoI requests and 104 FoI case files were examined.

Minister for parliamentary business, Joe Fitzpatrick, announced that the government accepted Fitzhenry’s recommendations in full. “We have already implemented a number of changes that have resulted in significant improvements to our FoI performance,” he said.

“In the first five months of 2018 we responded to 93 per cent of FoI requests on time, exceeding the 90 per cent target set by the information commissioner and a 10 per cent increase on last year. Outside the FoI process, last year the Scottish Government responded to over 5,000 queries from journalists in a matter of hours.”

Fitzpatrick insisted that some of the criticisms made of the government’s approach had not been substantiated. “We are determined to learn from this review, to further improve our performance and to further enhance our position as an open government,” he said.

According to the Scottish Government’s Permanent Secretary, Leslie Evans, officials had improved their handling of FoI requests. “During the past year we have taken action to ensure improved performance, including allocating additional resources to our FoI unit, intervening early to ensure effective case management, developing a new tracking system and working across every directorate to address local action,” she said.

Scottish Green MSPs urged ministers to act urgently. “This is a damning report, and vindicates the complaints of many journalists and researchers that Scottish ministers are slow and inconsistent in how they release information that the public are entitled to,” said Andy Wightman MSP.

“I welcome ministers’ commitment to implement the recommendations in full and urge them to do so swiftly in order to restore public confidence.”

The Labour MSP Neil Findlay accused ministers of being caught “bang to rights” by Fitzhenry. “The government has been rumbled,” he said.

Fitzhenry’s report was welcomed by the Conservative MSP, Edward Mountain. “There is clear evidence that this SNP government is not dealing with FoI requests in the spirit of the legislation,” he said.

“This is an appalling indictment of this SNP government and the way it has tried to cover its tracks and cover up bad news.”

The Campaign for Freedom of Information in Scotland called on the Scottish Parliament to set up an independent inquiry into the government’s handling of FoI requests. “The commissioner declined to accept submissions from us, instead focusing on the complaints from journalists,” said campaign convener, Carole Ewart.

“Currently appeals to the commissioner from journalists stand at only 14 per cent of the total so that means a wide range of experiences were excluded from informing the process. Parliament must act on setting up the inquiry as well as embarking on the also agreed post legislative scrutiny of FoI legislation to check it is still fit for purpose.”

Naming journalists ‘illegal’

Meanwhile, a recent freedom of information response from the Scottish Government shows that ministers and their political advisers are given the names of individual journalists making requests. According to one expert, this could be illegal.

Alistair Sloan, a solicitor specialising in information law, argues that sharing the names of requesters could amount to “unlawful processing of personal data.”

Unless knowing a name has a direct bearing upon decisions to be taken it should not be passed on to anyone else in a public authority, he said. “I struggle to see how, applying the law, a public authority could justify the processing of personal data in that way.”

Two freedom of information requests about plans to replace the General Teaching Council for Scotland were referred by officials to the education minister, John Swinney, in January and March 2018. Two journalists were named as the requesters, one of whom was Ferret contributor, James McEnaney.

The Scottish Government, however, denied that it was acting illegally. “The Scottish Government operates freedom of information practices in line with FoI law,” said a government spokesperson.

“Under the FoI law both officials and ministers are able to be informed of where an FoI request has come from. This is not specific to journalists.”

The report by the Scottish Information Commissioner

Freedom of information response from the Scottish Government

This story was updated on 13 June 2018 as the Scottish Government and others responded.

Research by James McEnaney. Photo thanks to Scottish Information Commissioner.

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