Campaign sounds warning for new Information Commissioner

The Campaign for Freedom of Information in Scotland has welcomed the Scottish Parliament’s recommendation for the new Scottish Information Commissioner, but have warned that the pressure for extending and promoting the legislation must be kept up, and stepped up.

The Parliament yesterday approved the recommendation of its Corporate Body to appoint Rosemary Agnew as the new Scottish Information Commissioner, succeeding Kevin Dunion, who retires from office later this month. 

Carole Ewart, co-convener of the Campaign, said: “We congratulate Ms Agnew on her appointment, and look forward to continuing working with the Commissioner's office to develop and promote this important legislation. The Scottish Information Commissioner is a key figure in the success of FOI and, as FOI is at a pivotal stage in Scotland, we would like to see her continuing the positive developments her predecessor has established."

The campaign is concerned that the pressure to extend the FOI laws in Scotland to cover all providers of public services isn’t dissipated by the change of Commissioner. Currently, if public authorities outsource services to charitable trusts, housing associations, joint public/private partnerships or privatise service delivery, people’s rights to information can be lost as these types of bodies are not covered by the legislation.

Extension of the coverage can be done by Scottish Ministers under existing law, but a minimal proposal to so so before the last election was dropped. The Campaign has been critical of that withdrawal. The existing Scottish Information Commissioner, Kevin Dunion,  has also indicated that he supported such an extension, as he was concerned that outsourcing public services was leading to the loss of people’s information rights, particularly important during a period of cutbacks and austerity. 

Kevin Dunion has certainly made his mark as the first Commissioner, and has established FOI as a much-used right. He has also made it his business to work closely with all sectors of the sector - providers and users - a development far too little undertaken by regulators and agencies. That this is appreciated by both sides, was seen at his final FOI conference in December where tributes were led by Sandy Longmuir of the Scottish Rural Schools Network, and Ken Meechan of Glasgow City Council! 

It is particularly galling in this important area, that the Scottish Government, with its commitment to transparency, has put extension on the backburner - ostensibly because the organisations who would be covered don’t like the idea. Down south, even the Tory-led coalition is pressing ahead with some extensions (to such bodies as the Local Government Association, and the Association of Chief Police Officers) while here their equivalents can still refuse requests under the legislation. It would be a major impediment if Scotland had freedom of information legislation that doesn't allow public access to information held by all providers of public services.

Freedom of Information - a crucial change

Is it really five years since the Freedom of Information (Scotland) Act came into force? It seems longer somehow. It seems that this has always been part of the landscape, that public authorities - especially in Scotland - have known that information they hold is likely to be available to anyone who asks. Indeed the fact that the major campaign now is to extend the legislation to cover bodies not yet listed, tells you how much the Act has bedded into our political, media, campaigning and community activity.

Of course, the Act was passed in 2002, three years before it came into force, and those three years were spent building an infrastructure, and publishing the implications to anyone who would listen, but the main factor in embedding the Act was the appointment of Kevin Dunion (ex-FoE and Oxfam) as the first Scottish Information Commissioner almost nine years ago. Although his nomination was only passed by a majority vote in the Scottish Parliament, it was always clear that what was needed, was an enthusiast for Freedom of Information to establish the rights of individuals and set up a positive environment for the new legislation, - something that Kevin acknowledged when he spoke to the annual Holyrood Freedom of Information Conference, just before Christmas (see Holyrood interview here).

Kevin’s appointment brought hope to those of us who had been campaigning for Freedom of Information for many years - after all, he has been one of those campaigners - and our hope was not disappointed. Kevin and the staff he gathered around him ploughed a consistent furrow presuming that information should be released, refusing to accept rationalisations from public authorities keen to retain information in their own files, but guided by the law where exemptions are concerned. That he has been successful, not just in applying the law - he has issued 1,400 formal decisions on appeals - but in beginning a change in the attitude of the public sector, says much about how effective his approach was. It is true to say that not everyone in the public sector has got it, Tony Blair and Sir Gus O’Donnell down south, and Lord Smith, Chair of the Glasgow 2014 Ltd, the Commonwealth Games Organising Committee, seem particularly deaf to the benefits of FoI, but the prevailing trend in the public sector now, is a trend to publish, rather than conceal.

Given this, surely the next commissioner has a clear steer on their direction of travel? The Scottish Act has long been held up as a more effective Act that the UK Act, and has led to better decisions (the decision to publish MSP’s expenses, for example surely meant the Scottish Parliament did not attract the level of scandal heaped on its Westminster counterpart). But that lead appears to be slipping. While the Westminster government ploughs on with proposals to extend coverage of its Act to such bodies as the Association of Chief Police Officers and the Local Government Association, the backtracking of the Scottish Government in doing the same - or more - is worrying many practitioners including Kevin himself. And, now that government has the Parliamentary majority to allow it to strengthen the legislation and extend the coverage, it appears not to want to do it. To introduce an amendment to the Act simply to decrease the duration of publication exclusions from 30 years to 15 for some records and to tidy up a legal anomaly, is surely a missed opportunity. The increasing ‘outsourcing’ of our public services requires comprehensive extension to cover local authority trusts and LLPs, private contractors, social housing providers and a range of other bodies. The Scottish Minister, Brian Adam MSP, at the same Holyrood Conference, came under strong pressure from both Kevin and the original architect of the Act, Lord Wallace of Tankerness to extend the Act. He failed to deliver. 

Given such indications of retrenchment coming directly from the top of Scotland’s Government, it becomes increasingly important that whoever is appointed to fill Kevin’s vacancy in February, is also an ‘enthusiast for Freedom of Information’, and remains strongly committed to extending and improving the coverage of this important Act. The temptation might be to appoint a ‘safe pair of hands’ from a parliamentary or government perspective. While not wanting to pre-judge anyone going for the job, to have someone who wants to restrict information and increase exemptions, would be a serious mistake and risk the advances that the Act has given to ordinary people at a crucial time for their public services.

At a time when these services are under increasing threat, and the temptation to outsource grows apace, we should ensure that our right of access to information is not compromised. When Kevin delivers his final report to Parliament next month, I am sure he will point this out. It is up to our parliamentarians to heed the warnings, take the right steps forward themselves, and nominate a replacement to the first Scottish Information Commissioner who can maintain and extend our rights.