Complaints soar as public's right to know is denied

Key quote "It's completely unacceptable that public bodies are flouting the FoI Act which they are duty-bound to honour under law. They are public bodies, paid for by the public purse and must be transparent as well as accountable." - The SNP's John Swinney

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PUBLIC bodies that consistently fail to comply with Freedom of Information legislation are to be named and shamed as part of a crackdown on the way they operate, The Scotsman can reveal.

Amid a rising level of complaints about councils, police forces and other authorities not responding to demands for data, Kevin Dunion, Scotland's Information Commissioner, is to launch an inquiry into their performance. Those public bodies which do not meet strict targets will be identified and, in cases where they are guilty of extreme negligence, enforcement powers will be used to implement change.

Under the Freedom of Information (FoI) Act, chief executives who show a wilful disregard for the legislation can be held in contempt of court and even jailed, although Mr Dunion said he was far more likely to apply political pressure on such organisations by, for example, making them the subject of damning parliamentary reports.

The Scotsman has learned that appeals to the commissioner about organisations not responding to legitimate demands for information under the act are rising steadily, more than a year after the law came into force. Nearly a quarter of the 158 complaints this year were about a complete failure by public authorities to answer requests - up from 18 per cent of all appeals last year.

With complaints running at twice the highest predicted level, the commissioner's own team is struggling to fulfil its role as enforcers. After the body failed to meet its target of settling appeals within four months in one fifth of all cases, the commissioner, who has a budget of 1.2 million, is to hire an extra three investigators and will call on the Scottish Parliament for more funding.

The act imposes a duty on public authorities to respond to requests for information within 20 working days. If the person seeking the information is unhappy with the response, he or she can demand a review by the authority which must be completed within another 20 working days.

But an increasing number of organisations are failing to comply with the law. Among those held by Mr Dunion to be culpable on at least one occasion since the act was introduced are the Scottish Executive, the Strathclyde, Tayside and Grampian police forces, the Scottish Public Services Ombudsman, the Crown Office, Audit Scotland, Scottish Water, the Scottish Prison Service and 14 councils, including Edinburgh and Glasgow.

Part of the reason for the growth in complaints is the increasing number of requests for information. But Mr Dunion has also found some organisations do not have proper procedures in place.

One public official said he was not even able to look at requests within 20 working days. "It is impossible. I've got a massive pile to go through and the boss refuses to pay for anyone else to help out," he said.

Mr Dunion told The Scotsman: "This is just not acceptable. I was already concerned about the 18 per cent of complaints I received last year that were about mute responses. That figure has now risen to 23 per cent. And these are only the cases that reach me. It requires a fair degree of persistence by the individual who wants the information before it gets as far as myself."

He is so concerned about the number of cases where authorities are failing to comply that he will later this year undertake a "systematic review" of complaints to identify the worst-performing bodies. He will seek to offer guidance to authorities and, in cases where they are guilty of extreme negligence, use powers to implement change.

The tough line was welcomed by the SNP's John Swinney, who said: "It's completely unacceptable that public bodies are flouting the FoI Act which they are duty-bound to honour under law. They are public bodies, paid for by the public purse and must be transparent as well as accountable."

A Scottish Executive spokesman said: "We make every effort to be as open and transparent as possible through FoI legislation and other means. But we are occasionally unable to provide as much information as respondents would like. This could be because the request exceeds the cost limit, because information is confidential or because it is commercially sensitive."

'Human error - not intentional obstructiveness'

E-MAIL accounts that staff have forgotten to check and over-zealous computer firewalls are among the reasons given for public authorities breaking the Freedom of Information laws.

The Information Commissioner, Kevin Dunion, said the failure to reply to FoI requests was usually down to "human error" rather than officials being intentionally obstructive. He said: "In some cases, I've found that IT systems have over-vigorous firewalls which filter out e-mail requests. One authority said they had set up a special e-mail, but staff simply forgot it existed. When I approach them to find out why they haven't responded, they usually put their hands up and say they didn't recognise that it was a request under the act."

In other cases, however, managers have been unwilling to provide enough staff to deal with FoI requests, something he said was "totally unacceptable".