'Significant and systemic failures' by Scottish Government around its Freedom of Information regime

Scottish ministers are overseeing “significant and systemic” failures in the Government’s Freedom of Information regime and organisation, a new report states.

The report – the latest update by the Scottish Information Commissioner (SIC) in his five-year intervention into the Government’s FOI processes – also warns of “substantial problems” around the ability to track FOI performance.

The commissioner stated the pandemic had been a “contributory factor”, but warned organisational compliance and issues with monitoring and reporting were “clearly wider concerns” needing to be “urgently addressed”.

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His report warns special advisers to ministers are often intervening in cases outside of the formal processes, with officials failing to make the required record of any advice from these political advisers.

It also states, referencing the decision by ministers to block the release of information around the Lochaber guarantee, that some cases saw too broad or narrow interpretations of the requests and many cases where the rationale for decisions taken were “not adequately recorded”.

Critics said the report demonstrated the “corrosive culture of secrecy” within the SNP and Scottish Government, which they claimed was “riding roughshod” over FOI legislation.

Daren Fitzhenry, the commissioner, wrote the Government was facing “substantial problems in the organisation’s ability to track, monitor and report on (and therefore improve) FOI performance; issues with organisational compliance with the revised clearance procedures; disruption to the newly-established network of FOI case-handlers; and evidence of significant delays and organisational ‘bottlenecks’ in some areas”.

Nicola Sturgeon's Government has been criticised for its approach to Freedom of Information legislation. Picture: PA

“I also found evidence of significant and systemic failures to comply with case file records management requirements with the effect that, for many of the cases examined, it was not possible to fully assess how a case had been handled, who had been involved in case handling, or why particular decisions were taken,” he said. “This issue is highlighted frequently throughout this report.”

Special advisers, the report states, are often involved in an internal reassessment of the sensitivity of an FOI request, with “routine” cases often going to ministers and special advisers for review outside of the formal processes for FOI within government.

There were also a “significant number of cases” in which special advisers had “clearly played a role in request-handling”, but no direct record of this had been saved within the case file by the Government.

Mr Fitzhenry recommended ministers should take steps to improve the recording of special adviser advice, the rationale for decisions by ministers, and the reasons why advice from the FOI unit was not followed.

The report states the requirement to record advice from special advisers is “not being followed clearly and consistently”, and said special adviser involvement often led to delays of up to seven months in responding to requests.

FOI legislation states requests must be responded to within 20 working days.

Media requests are also more likely to be subject to special adviser or ministerial review, the report states, although the data sample was not large enough to form firm conclusions.

Ministers were asked to supply FOI tracking data for all open cases in April 2021, but Mr Fitzhenry said the Government “struggled to provide reliable data” to inform the report.

Mr Fitzhenry stated cases meeting the requirements for records management were the “rare exception, rather than the norm”.

This including “significant omissions” in case files, which was “persistent and widespread”.

The SIC’s intervention was launched following concerns raised by journalists around a two-track system in which requests from the media were treated differently from requests by the general public and began in November 2017.

The latest progress report states some “significant improvements” have been made, including the end of the “two stream” approach to handling FOI requests based on the identity of the requester.

Craig Hoy, the Scottish Conservative party chairman, said while progress had been made, too many responses were being held up by the involvement of ministers and special advisers.

He said: “This report reveals just how bad the corrosive culture of secrecy has become under the SNP Government.

“Wherever possible, Freedom of Information requests should be assessed by neutral case handlers, not political officials who may benefit from the information being withheld or released.

“This is just another symptom of the shadowy and secretive SNP approach that we have seen throughout a series of recent scandals – from Ferguson Marine, to Lochaber smelter.”

Neil Bibby, the Scottish Labour business manager, said the SNP must stop “dragging their heels” and act on the recommendations of the commissioner.

He said: “This damning report reveals that the SNP are still riding roughshod over both the spirit and the letter of FOI law four years after these failings were exposed.

“Records management is still being systematically bungled and we are still seeing scandalous levels of political oversight in routine requests.”

Willie Rennie, the Scottish Liberal Democrat MSP, added: “In the SNP’s secretive world, reasonable requests for information from journalists and the public are treated as hostile attacks.

“From independence legislation to industrial interventions, the Scottish Government still refuses requests as a matter of course which will inevitably be overturned on appeal.”

George Adam, the minister for parliamentary business, blamed the pandemic for the problems encountered by the Government around FOI handling.

In a letter to the commissioner, he said the pandemic had negatively impacted the ability of the government to reply to FOI requests on time, adding it had “worked hard to restore turn-around times”.

He said: “The Scottish Government is committed to openness and transparency and recognises that scrutiny is the bedrock that underlies effective governance. Freedom of Information handling plays a critical role in that.

“We have worked hard to restore turn-around times. Over the past two years response rates for requests issued within 20 working days have improved to around the average for Scottish public bodies, at 86 per cent. We have, at the same time, responded to a steep increase in the volume of FOI requests, handling a record 4,200 requests last year – 25 per cent more in 2021 than the previous year, the vast majority on time.”

The Scottish Information Commissioner will undertake a further assessment of the government’s approach to FOI in 2023.

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