Repeated attempts by government agencies in Scotland to block public access to information show that freedom of information law should be strengthened, according to a submission to Holyrood by journalists.
Forty journalists from across the Scottish media have joined together to urge the Scottish Parliament’s post-legislative scrutiny committee to consider improving and expanding freedom of information (FoI) legislation.
The journalists accuse the Scottish Government, Police Scotland, the NHS, local authorities, universities and others of delaying, mishandling and refusing FoI requests without good reason. Key ministerial meetings are not minuted, they say.
MSPs from different political parties on Holyrood’s post-legislative scrutiny committee are reviewing the 2002 Freedom of Information (Scotland) Act (FoISA). The committee has recently extended its deadline for submissions until 21 June to encourage more responses from the public.
The committee’s review follows an intervention by the Scottish Information Commissioner, Daren Fitzhenry, to try and remedy multiple problems with the Scottish Government’s handling of FoI requests.
The problems were first highlighted in a letter from 23 journalists in May 2017, which prompted two debates in the Scottish Parliament. At the time ministers accepted a motion condemning the government’s “poor performance” on FoI.
The new letter from journalists is being jointly published today by The Ferret and CommonSpace. Among its 40 signatories are 11 reporters with The Ferret, five from CommonSpace and National Union of Journalists’ representatives from the Scottish Executive Council, STV North and Glasgow Broadcasting Branch.
Others who signed were experienced FoI journalists from across the media spectrum in Scotland. They included writers for The Guardian, The Herald, Scottish Daily Mail, The Times, Daily Telegraph, Daily Record, The Scotsman, The National, The Scottish Sun, Herald on Sunday, Scotland on Sunday, Sunday Mail and Scottish Mail on Sunday.
The letter welcomed moves by the Scottish Government to improve the handling of FoI requests, and accepted there had been progress. “However, we agree with the committee there are a number of reasons to review the legislation,” it said.
“We still experience problems with the Scottish Government and have had repeated difficulties accessing information from other public bodies, including the NHS, local authorities, Police Scotland and universities. We believe there are strong, substantive reasons to consider updating, strengthening and expanding FoISA.”
One of the problems highlighted by journalists was “the direct involvement of government special advisers and ministers in the sifting, clearing and blocking of information requests to the media.”
The journalists alleged that media FoI requests were handled differently to those from members of the public. There were “unexplained and significant delays across the public sector in the release of information in breach of statutory deadlines,” they said.
There was a “seemingly widespread shortage of staff dealing with requests, or a downgrading of the importance attached to information requests, leading to delays”, they added.
The journalists criticised the legislation’s “failure to include bodies whose sole purpose is to oversee the commissioning and building of public infrastructure worth billions of pounds.”
They suggested expanding FoI law to cover bodies that derive a substantial proportion of their income from the public sector. These included the local authority body, Cosla, the local government Improvement Service and the regional hub companies which oversee the building of schools and hospitals under the Scottish Futures Trust.
Another problem was said to be “key meetings and telephone calls by ministers or senior officials with outside bodies or influential individuals not being minuted”.
Journalists called for “a clear duty to record” to empower civil servants to ensure meetings and communications with external bodies or individuals were minuted.
They argued that the rights of ministers and special advisers to influence FoI requests should be limited. There should be “much clearer duties” on public bodies to follow best practice, they said, as well as a review of the misuse of exemptions and the need for tougher sanctions.
The joint letter called on the public sector to invest more in open data and information disclosure. “It is remarkable how many times public bodies repeat failures to properly handle information requests after the Scottish Information Commission has upheld complaints in exactly those areas,” it observed.
One of the letter’s co-ordinators, Severin Carrell, Scotland Editor of the Guardian, applauded ministers for recognising that improvements were needed. “Freedom of information regulation has made and can make a substantial difference in our capacity to report on how the government and public services work,” he said.
“We think it’s essential it is brought up to date to take account of digital technology and our experiences of it in practice, as well as the increasing role of the private sector and changing styles of government. This view is shared across the media.”
Carrell added: “Often we have an excellent experience with FoI requests, yet we frequently come across obstruction, poor practice and clear efforts to restrict access to information – experiences which undermine our confidence in the system. So for all those reasons we think the committee inquiry is necessary and timely.”
The journalists’ submission also endorsed many of the recommendations made to the committee by the Scottish Information Commissioner, Daren Fitzhenry. He made a plea for more resources to enable him to make more interventions when public agencies have FoI failures.
He said: “Unfortunately, and particularly at times of high volumes of appeals, the requisite resources may not always be available, which means that I am not always able to intervene, even where there may be an appropriate case for doing so.”
Fitzhenry called for new powers to compel witnesses to give evidence during interventions, stronger enforcement powers and a new statutory duty on public bodies to publish information.
He also suggested scrapping the ministerial veto on releasing information, removing Crown Office immunity from FoI appeals and banning the confidentiality clauses used to keep secret information about private contractors providing public services.
The submission by journalists was welcomed by the Campaign for Freedom of Information in Scotland (CFoIS) as “an informed analysis of repeated bad practice in trying to access information in Scotland”. But the campaign complained about delays to the post-legislative scrutiny.
“Journalists, civil society organisations, members of the public and elected politicians share many of the same concerns about how FoISA needs to be reformed and what steps require to be taken to make sure that access to information rights work for everyone, equally,” said the campaign’s convener, Carole Ewart.
“However CFoIS is concerned that the first stage of the post legislative scrutiny is taking so long to conclude. The latest date for written submissions is 21 June, the third announced by the committee, which is exactly two years since the Scottish Parliament unanimously voted for post legislative scrutiny of FoISA. Realistically we had expected the whole process to be concluded by now and the legislation made stronger.”
The Scottish Liberal Democrats have also made a submission to the post-legislative scrutiny committee criticising the Scottish Government for “coordinating the responses of local authorities” to FoI requests. The party raised concerns about the “undue influence” of special advisers within the Scottish Government.
The Scottish Government stressed that Scotland already had the “most open, far-reaching freedom of information laws in the UK” and that it was working to widen coverage further. Last year 91 per cent of Scottish Government FoI responses were issued on time with the number of requests increasing by nearly 12 per cent, it said.
“The Scottish Information Commissioner said there was “no doubt” that significant improvements had been made in the Scottish Government’s FoI performance and found no evidence of improper motives in the application of exemptions or special advisers holding any decision-making power in the process,” added a government spokesperson.
“The commissioner described the new criteria for our decision making processagreed with him as providing “a sound foundation for future work”. We will co-operate fully with the Public Audit and Post-legislative Scrutiny Committee as they take forward post-legislative scrutiny of FoISA.”
The committee’s convener, Labour MSP Jenny Marra, encouraged more people to make submissions before 21 June. “The committee is keen to hear from members of the public about their experience of freedom of information laws,” she said.
“Whether you have asked for information from your local council, health board or college, everyone’s experience of asking for information will help parliament review the law and change it for the better.”