Scottish Government delays in responding to freedom of information (FoI) requests have been condemned as “extremely disappointing and wholly unacceptable”.
The outgoing Scottish Information Commissioner, Daren Fitzhenry, described government FoI procedures as “not fit for purpose” in a damning final report on his six-year investigation into the government’s FoI performance.
His report revealed that there was a backlog of 117 FoI cases in May 2023, that some government FoI responses had been delayed for over two years, and that the role of political advisers was “ambiguous” and “anonymous”.
Freedom of information campaigners accused the Scottish Government of failing to learn from past mistakes and breaking promises to improve. They called for “urgent legal reform” to strengthen FoI law.
The Scottish Government stressed that it had made “significant progress” since May, and improved its FoI response rate. It remained committed to ensuring “openness and transparency”.
Fitzhenry launched his intervention on the Scottish Government’s FoI performance in 2017. This followed concerns raised in the Scottish Parliament and in a letter from journalists, which The Ferret helped coordinate.
He published an initial report in 2018, followed by reports in 2019, 2020 and 2022. They all highlighted problems in the way the Scottish Government handled FoI requests, including delays, lack of training and poor records management.
On 12 October 2023, Fitzhenry’s penultimate day in office, he released his final progress report. It disclosed his alarm at a “deterioration” in the government’s FoI performance between 1 July 2022 and 31 March 2023.
An initial estimate in May 2023 suggested there was a backlog of 88 FoI requests, but on further investigation this rose to 117. “The associated delays experienced in a large number of these cases was clearly of significant concern,” Fitzhenry said.
According to FoI law, responses should be made to requests within 20 working days. Fitzhenry pointed out that the Scottish Government’s average response time had fallen to 27 days, the worst in six years – and in breach of its targets.
Of 3,820 cases not marked as “sensitive”, responses to 140 took over 100 working days, 75 exceeded 200 working days and 38 exceeded 400 working days. A dozen requesters had to wait more than 500 working days – in excess of two years – for a response.
‘Widespread failure’ on records management
“Such delays clearly lie far, far beyond the bounds of what is acceptable,” Fitzhenry said. The Scottish Government’s processing of FoI cases was “not fit for purpose, and served to seriously disadvantage and delay a significant number or requesters.”
He described his findings as “extremely disappointing and wholly unacceptable”. The Scottish Government’s performance was “poor” and a sign that it was “comprehensively failing to address, respond to and recover from the disruption to FoI performance that began during the pandemic,” he argued.
Fitzhenry also highlighted a “widespread failure” to comply with records management requirements. There was a “significant variance” in the FoI knowledge of the officials who handled requests, he said.
He criticised the “ambiguity” surrounding the role of the SNP’s special advisers within government, suggesting that they sometimes seemed to be making the decisions, rather than FoI officials. He urged the government to stop allowing advisers to remain “anonymous” in case files.
In May 2023 Fitzhenry raised his concerns directly with Scotland’s top civil servant, the permanent secretary, John-Paul Marks, seeking action “as an immediate and urgent priority”.
According to Fitzhenry, there have since been improvements. But he still has concerns about “compliance with records management procedures and the restoration of an effective network of FoI staff.”
He concluded: “While, then, it is disappointing that my final report on this intervention does not herald the conclusion of this work, I am cautiously optimistic that the Scottish Government is now on the right track to work towards that conclusion.”
Scottish Government ‘getting basics wrong’
Fitzhenry’s report was described as “startling” by the Campaign for Freedom of Information in Scotland. “The rapid deterioration in the basics of FoI compliance cast serious doubt on the ability of the Scottish Government to sustain a reasonable standard of consistent legal compliance,” said campaign director, Carole Ewart.
The government was “getting the basics wrong” and had “an inability to learn from past mistakes and honour promises to improve”, she told The Ferret.
“This timely report provides yet more evidence of why we need urgent legal reform of freedom of information law to strengthen enforcement.”
The Scottish Government did not directly address Fitzhenry’s criticisms. “I welcome the significant progress this report shows,” said the parliamentary business minister, George Adam.
“In recent months our performance levels have returned to and exceeded pre-Covid levels and we continue to make improvements in this vital area. Our response rate is averaging at 97 per cent whilst there has been a significant increase in requests – 60 per cent since 2019.”
He added: “Scotland has the most open and far-reaching freedom of information legislation in the UK and the Scottish Government remains committed to our obligations under the act to ensure openness and transparency, as this report demonstrates.”
Fitzhenry’s successor as Scottish Information Commissioner is former police inspector, David Hamilton, who starts work on 23 October. Decisions on the “next steps” in scrutinising the Scottish Government’s FoI performance will be made by him, said his spokesperson.
The Ferret reported in July 2023 that Hamilton came under fire because he previously accused the media of FoI “abuse” to produce “crud” about the police, and suggested reforming the law.
