Government ministers 'breaking the law' if they refuse to hand over phones relating to FOI requests

Government ministers and special advisers are breaking the law if they refuse to hand over mobile phones and private email accounts relating to freedom of information requests, a former information commissioner has said.

Kevin Dunion.

Professor Kevin Dunion, Scotland's first information commissioner, told MSPs "the law is clear" about public officials having to declare - if asked - that they are storing information within the scope of a freedom of information (FOI) request.

Despite ministers being compelled to reveal details of official business conducted via text, WhatsApp or personal email, Prof Dunion told a Holyrood committee he had never seen any such information published under FOI laws.

During the evidence session, Scottish Labour MSP Anas Sarwar argued such communications "undoubtedly happen", suggesting Government ministers have broken the law by not complying with the full scope of the FOI requirements.

Explaining that information commissioners have the right to inspect any personal device which was used to store official information or for business activity, Prof Dunion said: "Anyone found to have withheld information contrary to the FOI laws could face a £5,000 fine.

"They have broken the law if they deny they have the information within the scope of the request and the note exists in whatever form - whether it's sitting in their briefcase or sitting in their Hotmail account.

"If an FOI request comes in and you don't disclose the fact that you hold the information on that device, you are in danger of being prosecuted for obstructing the release of information.

"My concern, therefore, is that this is not being readily understood and people are endangering themselves by thinking they are getting around the law by doing that."

Although the law allows personal devices potentially used for official business to be searched in relation to an FOI request, Prof Dunion suggested there would need to be evidence it had taken place and was "not something an information commissioner would do lightly".

Prof Dunion, who is now convener of the Standards Commission for Scotland, told the Post-legislative Scrutiny Committee that he fears people in the public sector have a "temptation" to try and get around the law by not recording or deleting official information.

"When I was commissioner I did come across an authority where they actively went out of their way to instruct staff not to write anything down, to verbally brief their colleagues if they came back from a meeting, and to remove all their diary entries once their expenses claims had been submitted," he said.

"That quite clearly was intended to frustrate freedom of information.

"Some of that gaming of the system will go on."

Witnesses also spoke in favour of extending FOI laws to cover private companies who are carrying out public services, such as healthcare contractors, education firms and care homes.

Law lecturer Dr Karen McCullagh explained how many other countries - including Ireland - have the power to make private firms comply with FOI laws.

Prof Dunion added: "Anything with a public or statutory function of an authority, or anything done with public funds - within reason - should be within the scope of the law."