Iain Gray: SNP cannot hold back the FOI tide forever

Today is “International Right to Know Day”. “The right to know” is how campaigners for freedom of information legislation describe their cause. On 28 September 2002, FOI activists from around the world gathered at a conference in Bulgaria and declared it “right to know day”. This is the tenth such day and it remains big in Bulgaria, which I found surprising. I worked with some Bulgarians back in the Eighties and they did not give the impression that openness was a well understood concept in Bulgaria. Clearly post-communist reform has moved quickly.

We should not be smug. Scotland only enacted a Freedom of Information Act in that same year, long after much of the world. In the US, FOI dates back to 1966. Robert Caro’s brilliant biography of Lyndon Johnson shows how “Kennedy” civil rights laws were really delivered by LBJ. Similarly, it was LBJ, the closet liberal, who signed FOI into law, 35 years before we got round to it.

Right to know day was marked with a Scottish Parliament reception. Yet we have little to celebrate if Rosemary Agnew, the Scottish Information Commissioner, is to be believed. She found herself in court last week, where the Scottish Government is challenging her ruling that they should reveal whether they have had legal advice on a separate Scotland’s EU status. This will be a costly case with the taxpayer picking up the tab for both sides.

Alex Salmond’s justification in withholding the information is twofold. Firstly, he cites the ministerial code saying he cannot reveal whether legal advice has been sought. In fact, it simply says he has to ask the law officers before he does so. Secondly, he points to a convention that no government reveals the existence of legal advice. In fact, this convention is becoming arcane, as governments cannot resist the pressure to be open.

The Scottish Government has form. Before last year’s election, they went to court to challenge a ruling that they should release documents which showed they had misled Scotland about the impact of a local income tax on households. Election over, they simply gave in. This time, Mr Salmond says they will effectively reveal what advice they have had next year in a white paper. So the court case is not a matter of principle, but of timing.

The Scottish Government is keeping Ms Agnew busy. She is also currently deciding whether it would be in the public interest for us to see a “register” of the risks of independence prepared by civil servants. With a referendum coming, it is hard to see how it could be otherwise, but Scottish ministers beg to differ.

In fact, last year the commissioner ruled on almost 150 appeals from those denied information by the Scottish Government – a huge increase. Indeed, they only responded fully to half the FOI requests they received.

The First Minister tried to blame this on a “Labour researcher” who was responsible for 14 per cent of FOI requests. But some of us have been on the receiving end of the SNP’s highly effective FOI machine when they were in opposition. In my local council, Labour recently ousted the SNP. Now SNP councillors are, as we speak, “FOI-ing” every internal document they can even imagine exists to make life difficult for Labour. That is their right in an open society.

All administrations resist FOI, but to do so is to swim against the tide. Last week we discovered that Mr Salmond spends £1,800 per week on entertaining. That FOI request from a newspaper was resisted for six months. The government claimed Jack McConnell spent more. How did they know? Well, they got those figures through FOI when they were in opposition. Mr McConnell tried and failed to resist that FOI request at the time, so why on Earth did Mr Salmond think he could now? In the same way, Labour in the UK eventually had to publish legal advice regarding Iraq because the public interest argument was so strong.

The referendum is Scotland’s biggest decision in 300 years, and the SNP should accept that they cannot resist the public’s right to information.

Ms Agnew is also exercised by new FOI legislation currently before the parliament. Meant to strengthen the Act, in fact it will restrict it. This law will make it impossible to release communications with the Queen or heir to the throne, even if it is deemed to be in the public interest. Presumably that means we will never know if Mr Salmond recommended Brian Souter for a knighthood, or if Donald Dewar stopped Sean Connery from getting one.

Once again, this is a finger in the FOI dyke. In England, the clauses on the royal family already apply, yet the government there has just been overruled by a court decision that they must publish Prince Charles’ lobbying letters to ministers.

Moreover, Scotland’s new law fails to extend FOI to arm’s length bodies delivering services, such as housing associations, and to PFI contracts, in spite of previous promises that it would do both. Astonishingly, the First Minister told parliament last week he would be “extremely sympathetic” to the extensions “once we get the current FOI Amendment Bill through”. This is a promise to bolt the stable door as soon as the horse has bolted.

Instead of trying to turn back the tide of openness, wise governments should make a virtue of the inevitable, and release more information. Like universal suffrage, an independent judiciary and human rights, FOI is now a fundamental pillar of modern democracy. That is why new democracies like Bulgaria are so concerned to establish FOI credentials.

What of Scotland, then? Gandhi said: “Be the change you want to see.” If Mr Salmond resists the “right to know” now, then we are entitled to ask what kind of secretive Scotland he envisages if he gets the referendum result he wants.  He should simply make a virtue of openness instead.

• Iain Gray is Labour MSP for East Lothian.