The Scottish Information Commissioner is clearly taking claims FoI law may have been breached by the Scottish Government seriously.
“You idiot. You naive, foolish, irresponsible nincompoop … I quake at the imbecility of it.” Tony Blair did not hold back when describing his regret at introducing the Freedom of Information Act in 2000.
However, Westminster’s Justice Select Committee concluded the Act had been a “success” and “enhanced the UK’s democratic system”, while civil rights group Liberty believes it has played “an essential role in holding the State to account”.
So, if the allegations that Deputy First Minister John Swinney attempted to withhold information for political reasons and SNP special advisers screened responses for anything that might be embarrassing are true, this is nothing less than an attack on democracy itself. It could also, potentially, be illegal.
The Scottish Information Commissioner, Daren Fitzhenry, appears to mean business, publishing a letter to Parliamentary Business Minister Joe FitzPatrick in which he set out how he plans to assess “serious concerns” about the Scottish Government’s FoI system.
He said he would look into whether the “internal request handling procedures (particularly those that concern which officials should respond to, or advise on, requests) [were] consistent with FoI law” and whether there was “evidence of a practice of requests being blocked or refused for tenuous reasons”. Mr Fitzhenry plans to send two members of his staff to work alongside the Scottish Government’s FoI team and he “may also wish to interview staff and officeholders involved in the FoI process”.
Unsurprisingly, the Scottish Government can expect this to be a fairly open investigation – or “intervention under my enforcement policy” as the Commissioner described it. He told Mr FitzPatrick that there was a “strong public interest in providing as much information … as possible” about his progress.
Ministers’ defence of their actions at the moment relies on the idea that the legal duty to comply with the law lies with Scottish Ministers. If they are accountable it is “entirely appropriate for them to decide whether they are content with proposed information releases and exemptions applied in line with the FOI Act”, the Scottish Government said. While this principle seems sounds, it is the practice of it that is now coming under scrutiny. If FoI responses have not been truthful or have been drawn up with the use of spin doctors’ tricks to obscure the truth, this could get very serious.