Sunday, 1 April 2012

Public interest should not be compromised

The news (in today's Sunday Mail) that the Scottish Government has now reverted to their fallback reason for refusing to release details of correspondence between them and Sir Brian Souter - one of their biggest donors - should come as little surprise to dedicated Freedom of Information watchers. The use of the 'total cost' excuse by the Scottish Government is becoming a far too regular hiding place for unwanted information release.

It is concerning that this getout clause is being used increasingly by the Scottish Government (and is being latched on to by other public bodies) and it begins to look like it is used to avoid a) giving a specific exemption and b) appeals to the Information Commissioner invoking the 'public interest' test. As the cost limit is not indexed -linked, it also applies to more and more information requests as time passes.

The clause is a convenient one, as it isn't technically an 'exemption' in terms of the law, and therefore not subject to the public interest test, which the previous refusals to disclose the information (because the requester hadn't clearly identified the information, and because it dealt with correspondence with the Royal Family) both were in this case.

Bad enough then, that a Government that trumpets its commitment to 'open government and Freedom of Information by ensuring as much information as possible is made available without having to be asked' (Scottish Government – 6 Principles) seems to regularly practice bureaucratic moves to stymie legitimate information requests, but could there be something more behind this one?

Recently the Scottish Government issued consultation on an amendment to the FoI(s)A. A small amendment, much of which was unexceptional in tidying up anomalies that impacted on potential prosecutions under the Act, and reducing time limits for the release of restricted information. Freedom of Information campaigners heaved a sigh of relief too, that suggestions for the introduction of charges for FoI requests had been left out.

But included in the proposed legislation was a clause to bring the Scottish Act in line with recent changes to the UK Act, in particular increasing the level of exemption for 'correspondence with the Queen or her heir'; so that this would be an 'absolute' exemption. This caused some surprise. Why would this government wish to emulate the ConDem government especially by reducing the citizen's rights to information? Especially as part of a minor amendment that was largely about fixing anomalies and increasing access.

Many campaigners pointed out that this ran completely contrary to FoI principles (not least the Scottish Government's own!), but the responses were muted – many wondered whether to bother replying to such a minor consultation at all. Indeed the strongest arguments against were advanced by the Scottish Information Commissioner (SIC), himself.

Around the time the consultation closed a couple of interesting Appeal decisions were published by the SIC. Both found that the Scottish Government had unjustifiably rejected (or in one case ignored) requests for information about their involvement (or otherwise) in the process of the conferring of a Knighthood on Sir Brian Souter, by the Crown.

As many who know me will testify, I am one who tends to place 'cock-up' theories before the 'conspiracy' theories, but it is an interesting coincidence (to say the least). Is it merely unfortunate that a government that recently spent £100,000 plus of our money trying to keep their cost estimates of a local income tax secret, consistently refuses to release other information at so much less cost? In particular does an 'absolute exemption' on any contact between the Scottish Government and the Crown, help or hinder the disclosure of the facts on Sir Brian's nomination for a knighthood?

The recent track record of this government suggests that openness and transparency are now far from their aims.

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