Why we should all be worried about Scottish Government agency withholding information - Euan McColm

Public bodies must play by FOI rules to protect us all

Nicola Sturgeon insisted there had been no attempt to hide the scale of care home deaths

First Minister Nicola Sturgeon has always been adamant she has no desire to politicise the coronavirus pandemic.

Sure, the SNP may, during the recent election campaign, have circulated leaflets bearing the image of the lectern from which Sturgeon delivers her regular covid updates and, yes, the FM may have spent the last couple of weeks before polling day insisting only support for her party would guarantee strong experienced leadership during the recovery period but you must see, surely, that none of this was political.

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Let us all simply agree that, when it comes to dealing with the coronavirus crisis, Sturgeon and her Government are doing a tip-top, rinky-dink job.

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There's always someone, though, isn’t there? Someone who insists on picking at the officially sanctioned version of events. Last week, a group of troublemakers - from Scotland on Sunday’s sister paper, The Scotsman, and a number of other media outlets - successfully challenged an attempt by a government agency to withhold information about the deaths in care homes.

National Records of Scotland unlawfully blocked requests - under freedom of information legislation - to release details of how many people had died in each of the country’s care homes.

The publicly-funded body offered a range of pitiful excuses for its refusal to do its legal duty. It offered up some nonsense about “data protection sensitivities”, claimed the release of the information might harm the commercial interests of care home owners (doesn’t the heart just bleed?), and even suggested there was a risk to the health and safety of care home staff.

The information commissioner didn’t buy any of that rubbish and, finally, we know the truth about how many people died in each care facility in the country.

It is difficult to disagree with the reactions of opposition MSPs at Hiolyrood to this scandalous attempt to keep the public in the dark. The Tories are correct when they say there had been a blatant attempt to sweep the true scale of of the care hoime deaths scandal under the carpet and Labour are equally on the money with their description of the refusal to publish the information as "utterly shameful”.

For all the SNP spin about the First Minister’s masterful leadership during the pandemic, the fact remains that it was on her watch that the NHS discharged covid-infected patients into care homes where the virus quickly spread, causing more than 3,000 deaths among residents.

So, the information commissioner was absolutely right when he stated there was a strong public interest in the release of the information NRS wished to conceal.

When the Freedom of Information Act came into force in 2005, we were promised a new era of openness. Public bodies, previously able to cover up their dealings behind a veil of secrecy, would have to provide information about the way they were run. For the first time, we would learn the truth about decision making.

While the legislation’s primary objective was to make information available to the public, a secondary effect - or hope - was that it would make public bodies more honest. If they faced being held publicly accountable for their every act, then perhaps they would take greater care to do things by the book.

But all of this only works if public bodies - including the Government - play by the rules of the act.

In recent years, there has been a troubling tendency for the Scottish Government to drag its heels over answering freedom of information requests. We have seen a culture emerge where ministers’ special advisers have been allowed to oversee requests, putting the protection of MSPs who might be embarrassed by the truth over the public’s right to know.

The NRS's attempt to conceal details about deaths in care homes is part of a wider culture - which starts at the very top of government - of evasion when it comes to freedom of information.

Had the NRS done as the law required and released the information in question when it was requested, then it is entirely likely that Sturgeon and her ministers would have faced difficult questions about what the hell was going on. Perhaps that carefully crafted tale of Government competence would have seemed a little shakier.

Asked about this scandal on Friday, Sturgeon said there had been “no masking of the scale” of deaths in care homes. Nobody suggests this has happened but it was a useful straw man for a First Minister under pressure.

The NRS, she added, operated independently of ministers, she added.

But Scotland is a small country and the reaction by NRS to an awkward question about care home deaths is entirely in keeping with the current public sector culture.

Supporters of the First Minister might feel that, well, in the scheme of things, a tendency to evade troublesome freedom of information requests is understandable. After all, it’s usually just a bunch of troublemakers fishing for something with which to beat Sturgeon, isn’t it?

It is certainly true that FOI is a useful tool for opposition parties. Before it came to power in 2007, the SNP regularly used freedom of information requests to generate damaging stories about Scotland’s Labour-Liberal Democrat administration.

But partisanship shouldn’t factor in our condemnation of a growing culture of secrecy which sees the freedom of information act defied by public bodies. When National Records of Scotland decided to withhold vital information about care home deaths, they prevented families from making fully informed choices about the safety of their elderly relatives.

Freedom of Information requests may bring forth information that embarrasses politicians and civil servants. Good. If that happens, the law is working.

Those who break the law by failing to answer difficult questions may be motivated by the desire to protect themselves and their political superiors but, as this case shows, they may also be making Scotland a less safe place for the rest of us.