Transparency watchdog Darren Fitzhenry

Watchdog ruling prompts calls for Covid-19 cash transparency

A watchdog has sparked renewed calls for transparency over Covid-19 funding by public bodies, after a council that followed “dodgy” Scottish Government advice on publishing data was found to have breached rules on access to information. 

East Lothian Council has been ordered to release data on every organisation it gave emergency Covid-19 funding to after the Scottish Information Commissioner, Darren Fitzehenry, ruled on a freedom of information (FoI) request submitted in November 2020. 

At that time, The Ferret submitted FoI requests seeking similar data to all Scottish local authorities but almost every council, including East Lothian Council, refused to provide detailed Covid-19 funding information.

Councils claimed data was exempt from release by FoI, because it could lead to an increase in crime or fraud. 

It later emerged that councils were coordinating their responses to ‘significant’ Covid-19 FOI requests through a network led by COSLA – the body that represents councils. COSLA also circulated an ‘issues log’ providing advice to councils, which The Ferret obtained by FoI.

The Ferret found that COSLA put questions from council officers to the Scottish Government on how they should respond to FoI’s relating to Covid-19 funding and then shared the advice given by civil servants on how to avoid releasing information. 

This advice included the precise legal exemptions that council officers should use.

Now, the Scottish Information Commissioner has ruled against East Lothian Council’s decision to follow the Scottish Government advice. 

In a judgement issued in October 2021, he said: “The commissioner is unable to uphold the council’s assertion that disclosure of the requested information… would have enabled a potential fraudster to make a successful application for funding. 

“The commissioner does not accept that the concerns raised by the council regarding the disclosure of the information were justified, or that the anticipated harm would have been likely to occur should the information have been disclosed.”

The commissioner went on to require the council to publish the spending information in full. 

In response, a spokesperson for East Lothian Council said it: “In dealing with requests for this information, the council considered the statutory exemptions under the FoI legislation and determined that the information should not be released.”

But the spokesperson added it would now comply with the decision from the Scottish Information Commissioner and release the Covid-19 funding data.

Transparency campaigners said the decision has wider implications for other public bodies which relied on the same “dodgy” Scottish Government advice to withhold information on Covid-19 spending. 

“Dodgy” government advice

Susannah Fitzgerald, network coordinator at Transparency International UK, said it was concerned by the delays caused by civil servants trying to withhold the publication of pandemic spending data. 

“Transparency is critical for maintaining trust in our institutions and ensuring that public money is well spent, especially during the pandemic when decisions about large sums of money were made at pace and without the usual oversight,” she added.  

“Given the context in which these payments were made, delays and obstructions to the disclosure of this information are all the more concerning. Local and central government should heed the Scottish Information Commissioner’s judgement and disclose this crucial data –  that is of substantial public interest –  as soon as reasonably practicable.”

Carole Ewart, of the Campaign for Freedom of Information in Scotland said the revelations showed the need for reform of Scotland’s transparency laws. 

Public sector officials should not discuss important policies through organisations such as COSLA, that are not subject to Freedom of Information laws, she said, adding, “That loophole needs to be closed.” 

Opposition politicians also joined the call for greater transparency. 

Scottish Liberal Democrat MSP Willie Rennie demanded that Scottish Government officials stop issuing “dodgy” advice and “end the culture of secrecy”.

He said: “After years of spuriously withholding information on their own behalf, the Scottish Government want to make the rest of the public sector just as secretive.

“Vast sums of money were spent during the pandemic to keep individuals and businesses afloat. That makes it all the more important that there is a proper paper trail and the public can discover how their money was spent.

Calls for FOI reform

Scottish Labour Business Manager Neil Bibby backed Ewarts call to reform FOI law. He said: “The SNP’s culture of secrecy knows no bounds.

“It is no secret that the Scottish Government will pull every trick in the book to avoid transparency, but it is extraordinary to see them going out of their way to encourage others to do the same.

These revelations expose a potential loophole that must be looked at. We need to make sure FOI law is fit for purpose.

Neil Bibby MSP

“Crucially, these revelations expose a potential loophole that must be looked at. We need to make sure FOI law is fit for purpose – and that it is properly understood and followed across the board.”

The controversy in Scotland comes as MPs on the Public Administration and Constitutional Affairs committee at Westminster prepare to look into the operation of the Cabinet Office ‘Clearing House’. 

Research by openDemocracy found that the Clearing House played a similar role to COSLA as it has coordinated responses across different public bodies in England to ‘sensitive’ FOI requests. 

Whilst there is no similar probe planned by Scottish legislators, Ewart said she would use this example to inform proposals being developed by the Campaign for Freedom of Information in Scotland, for the reform of Scottish transparency laws.

In light of the decision by the Scottish Information Commissioner, The Ferret has re-submitted requests to every local authority in Scotland for up-to-date information on Covid-19 spending. 

A COSLA spokesperson said:  “The clear context for this is required here. During the pandemic, there was huge interest in the support that was being provided to businesses and there were a number of FoI requests asking for detailed information from all those involved in administering and distributing a range of business support grants on behalf of Scottish Government.

“Councils’ staff resource was undoubtedly stretched during this period as they worked hard to get business grants (and other life-line crisis grants) out quickly and some sought, through an established good practice oversight group, advice on how such requests might be handled. COSLA passed that general advice on, though it was for individual organisations to decide whether specific requests were covered by FoI or not.”

A Scottish Government spokesperson said: “Data on allocation of coronavirus (Covid-19) business support grants is held by the individual local authorities and delivery organisations administering the funds.”

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