What it is like to battle Scotland's Freedom of Information system

Central to the job of a journalist is to uncover the truth of a situation and to cut through the spin that is often presented by public bodies and political parties.

Freedom of Information (FOI) and its closely related brother, the Environmental Information Regulations, are one of the most potent tools in a reporter’s arsenal when it comes to uncovering what is truly going on within government and wider society.

We are lucky that in Scotland and the rest of the UK we have such a powerful instrument enshrined in law.

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Why we will continue digging into Scottish Government affairs - Neil McIntosh

However, the latest assessment report by the Scottish Information Commissioner (SIC) makes for sobering reading and raises several questions.

For example, how is it possible for the Scottish Government to be certain that it is effectively operating an FOI regime when the SIC is struggling to obtain reliable information, which the commissioner writes “reduced and restricted the range and the reliability of the information available to inform my conclusions”.

It is also deeply worrying the Government is not recording information around case-handling appropriately.

The main concern is the involvement of special advisers and ministers and the advice provided around FOI responses.

First Minister Nicola Sturgeon during First Minister's Questions at the Scottish Parliament in Holyrood, Edinburgh

It is not a breach of FOI to involve special advisers, but the risks of undue influence and reduced transparency caused by the involvement of political advisers are significant.

The fact that, as the SIC’s report states, it is the “rare exception” for cases to include the correct record of special adviser involvement and advice should ring alarm bells.

Special adviser and ministerial involvement can have significant influences on what the public sees and when.

Take my own Freedom of Information battle with the Scottish Government, the National Records of Scotland (NRS) and the Care Inspectorate around care home deaths.

This began in September 2020 when a simple request – at least on the face of it – was submitted to all three asking for a breakdown of the number of deaths caused by Covid-19 and suspected-to-be Covid-19 in each individual care home across Scotland.

The NRS responded within the 20-day time period, stating the information was subject to an exemption under personal data protection rules.

An internal review request was also responded to within the legislative timescales, with an appeal to the SIC – the last serious chance for a member of the public to gain access to information a public body does not want to release – submitted on November 2.

The Scottish Government, for those interested, replied on April 14, refusing the request outright, claiming it didn’t hold the information.

Three months later, in February 2021, the NRS, in conversation with Government, had decided the information should be made public following advice internally and from the SIC that their argument would not hold up.

However, as we reported, interventions from Fiona Hyslop – disclosed in a separate, so-called ‘meta’ request for correspondence about how the initial request was handled from the NRS – and Jeane Freeman delayed this publication until after the Holyrood election.

The process of challenging exemptions applied by the Government and their decision to withhold information is both laborious, lengthy and often futile.

Some larger organisations will have the privilege of relying on legal advice from in-house advisers, but I rely on my own understanding of the law and how it should be applied.

For example, my appeal to the commissioner around care home deaths was eight pages and more than 3,000 words long.

These submissions, particularly on questions of public interest, rely on an in-depth knowledge of how exemptions such as commercial sensitivity, prejudice to public affairs, and confidentiality are applied and balance with the public interest.

This is all done often without the knowledge of what the other side is arguing.

As it stands, I have 30 ongoing appeals with the SIC.

The vast majority (23) are appeals involving Scottish ministers, with original requests often submitted more than 18 months ago.

I have confidence I will win in fewer than half of them, but I have been surprised before, as I was with the decision around independence legal advice.

This is one of the under-reported problems with Scotland’s FOI regime and the increasing workload for the SIC results in further delays amid a lack of investment by the Scottish Parliament, further exacerbating the problem.

It is often in the interests of a public body – and particularly the Government – to erect walls to information in the hope those asking for it will simply give up or that time will erode the interest in the information sought.

Take the legal advice around a second independence referendum.

That specified advice was received in 2020, but it is now 2022 and that advice is likely to be less pertinent today than on the day of the initial request.

For public bodies, simply saying no and hoping the SIC will agree with them in 18 to 24 months’ time or that interest has waned is clearly better than risking the political embarrassment when an issue is at the centre of public debate.

On the ongoing ferries scandal, several FOI requests received extensions to their response time – something a requester can do nothing about – until after the election, despite legally the requirement being to respond within 20 days.

.There is no serious sanction for breaching FOI legislation other than reputational damage, and even that is fleeting and can be argued.

It is worth remembering while the law is relatively young, it still has gaps in terms of digital records keeping in terms of apps such as Signal, WhatsApp and Telegram.

This allows for discussions and Government business to take place outside of the FOI regime.

Fundamentally, Freedom of Information is antithetical to political power in that it allows for the public to access, digest and understand how those we elect and spend our money operate in a sterile, objective environment.

It is for that reason it must be protected and enhanced.

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