PUBLIC authorities in Scotland have spent more than £400,000 on private legal advice to help them respond to freedom of information requests, an investigation by Scotland on Sunday can reveal.
More than 60 Scottish authorities have paid legal firms thousands of pounds for advice, including how to apply the exemptions within the FoI Act and on reviews and appeals to the Scottish Information Commissioner (SIC).
This private advice has been taken despite every authority having access to free-of-charge information on exemptions and other aspects of the legislation, which came into force in 2005, from the SIC. Analysis shows information is often withheld after solicitors have been instructed.
The FoI legislation was used to obtain information from every authority subject to the act, and figures show that legal advice has been taken on at least 275 requests for information from the public.
Of 242 cases where the authorities could provide the outcome of the FoI request, information was completely or partially withheld in almost three-quarters after advice from solicitors.
Scottish Enterprise was the biggest spender at £41,000 across 19 FoI requests, including £2,603 spent on a request for information on severance payments for senior staff.
Audit Scotland, the public spending watchdog, has spent £24,000 on advice over 16 FoI requests from 2005 to 2010, none of which saw information disclosed in full.
The Water Industry Commission for Scotland (WICS) has spent £40,000 across requests for 30 pieces of information, all in 2010. These included £11,000 to law firm Shepherd and Wedderburn on 18 FoI requests, including requests for information on the amount the commission has spent on artwork, chauffeur-driven cars and flights for executives and a Christmas party at the four-star Rufflets Hotel near St Andrews.
During an appeal investigation into WICS, the SIC ruled it had incorrectly applied the “personal information” exemption of the act to the request for chauffeur-driven car costs and required the release of the information in full.
In another appeal decision notice, the commissioner criticised WICS for its poor records management practices.
The spending on legal fees has been criticised by FoI campaign groups and opposition MSPs, while Scotland’s Information Commissioner Rosemary Agnew said routine recourse to private advice should not be necessary.
Carole Ewart, co-convener of the Campaign for Freedom of Information in Scotland (CFoIS) said: “Ten years after the FoI legislation was passed in Scotland, after much independent guidance and advice, and after many decisions issued by the Scottish Information Commissioner, we expected that authorities would only need to involve external lawyers in exceptional cases.
“The CFoIS is worried by the apparent underlying trend to access external advice if a public authority wants to withhold information. Use of external firms and technical appeals to frustrate the aims of the legislation also suggest that best value is not being applied in these public authorities.”
Dumfriesshire MSP Elaine Murray, who moved a number of amendments to the recent FoI Amendment Bill, said: “The Information Commissioner provides guidance to public authorities regarding what they must reveal on request and what information is protected.
“There should be no need to seek private legal advice, and I suspect the main reason for going to private lawyers rather than the Commissioner is a fear that the Commissioner will favour transparency.”
In response to Scotland on Sunday’s FoI request, WICS said it had once taken legal advice to help it find an exemption for requested information that it “did not believe should be released”.
Other authorities said that advice was taken to ensure the correct application of the FoI (Scotland) Act, as well as to provide “clarity on available exemptions” under the act.
Ian Scott, the chief financial officer of Scottish Enterprise, said: “It’s absolutely right that we seek external legal advice on complex FoI requests, especially when we have to strike a balance with our obligations around data protection and commercially sensitive information.
“These complex requests, however, only represent 2 per cent of the 769 we’ve responded to since 2005, with the rest being dealt with internally.
“Our most recent assessment by the SIC commended our openness and transparency in dealing with FoI requests.”