Freedom of Information – Threats and Excuses

Here is the recently published article I wrote for the new edition of the Scottish Left Review, on behalf of the Campaign for Freedom of Information in Scotland. I've tried to add helpful links into the text. A direct link to the article in the SLR is here.

Current UK Freedom of Information (FoI) law is under threat, and here in Scotland a long-promised consultation on extending the law plans to ignore demands to restore accountability to public services.

At UK level there have been a series of direct threats to FoI from both government ministers and official practices. In May the new Conservative government announced it planned to take powers to defy the Supreme Court and enable itself to veto a decision of a court or tribunal. Arising out of the government’s red face over its inability to hide Prince Charles’ letters - that the Supreme Court said should be released, a government lobby briefing said they were considering moves  ‘to strengthen the ability of the government to veto the publication of documents’. Campaigners have reacted with understandable horror to Ministers attempt to put themselves above the law, Maurice Frankel of the Campaign for Freedom of Information (CFoI) saying – ‘That is too much power for Ministers to have.”

One Minister seems to want to go further. Justice Minister, Michael Gove, responding to questions in Parliament, has said that Government planned to revisit the FoI Act to ensure that civil servants’ advice to ministers was protected. He also seems to have started to try and pose ’open data’ against Freedom of Information - an artificial distinction  long feared by campaigners.

Further concern is being caused by the apparent use of routine email deletions in the civil service and other public bodies that may be deleting information that should be saved. A Commission has now been announced on FoI at UK level. See here for the CFoI response.

In Scotland meanwhile, while there is concern about similar email deletion policies, the main threat to accountable public service coverage has ironically, been caused by Scottish Government consultation about extending coverage. Billed as the answer to persistent calls to extend FoI coverage to the multitude of arms length, private and third sector bodies now delivering our services, the Consultation on further extension of coverage of the Freedom of Information (Scotland) Act 2002 to more organisations not only proposes to add very few bodies (private prisons, providers of secure accommodation for children, grant-aided schools and independent special schools) to those covered, but it also contains a series of ‘arguments’ against extending FoI to cover Registered Social Landlords(RSLs). This special pleading is clearly a government response to a tenant’s petition that was recently considered by the Parliament’s Petitions Committee.

Most of these so-called arguments are not new - indeed anyone who has read the lobbying material used by the Scottish Federation of Housing Associations (which, interestingly, does not appear to be available on their website!) to justify continuing exclusion of Housing Associations (HAs), will have seen them – but the irony is that many of them are countered by arguments in the same document for the bodies that are proposed for coverage!

For example, both grant-aided and independent special schools are already under considerable regulation according to the consultation paper, implying that the extra duty of FoI will be not onerous– however similar existing regulation is given as a reason NOT to extend coverage to HAs!
Similarly one of the special pleadings on behalf of RSLs – that they carry out other (non-public) functions - is comprehensively blown out of the water by the consultation paper’s own admission that the only impact would be on “the information they hold concerning their functions of a public nature.”

The consultation document was one that promised to ‘swallow a camel’, instead it appears to be ‘straining at a gnat’. While the small number of bodies that are listed are in themselves, welcome. The list  in the first extension consultation paper of 2008 included private contractors providing schools, hospitals, trunk roads and prison escort services as well as private prisons. It is disappointing that the overwhelming public support expressed at that time, is continuing to be frustrated by government resistance.

A previous extension (the first ever) added arms length trusts providing leisure and cultural services to the list of bodies covered. Recent research by Strathclyde University PhD researcher, Calum Liddle has shown that there are worrying loopholes in that coverage – especially in the way that the law is framed to define which trusts get covered. Suggestions by both the Scottish Information Commissioner (in Commissioner's Special Report: FOI 10 Years On - are the right organisations covered? )  and the Campaign for Freedom of Information in Scotland for a better approach to extending coverage, have only been tangentially addressed in this paper.

It is also worrying that an artificial distinction is being suggested in our public services. The paper refers to education as an example of a ‘core’ public service. No agreed definition exists of what services are ‘core’ and what are not. Indeed such a distinction threatens to create a whole new unwelcome debate dividing our services, and possibly leave some without transparency or accountability – or indeed without other protection. Even if it were to be adopted as suggested here – it begs the question where is the extension covering PFI contractors providing schools?

On the positive side, the adoption of  ‘case-based’ extensions, rather than specifically naming private contractors or third sector bodies might be a small step in the right direction. As long as definitions of bodies are not too tightly drawn, it is hoped that this means that changes to the contractors/other bodies providing these services would not require future legislation. The CFoI in Scotland has long argued that this principle should apply across the board and that FOI laws should apply to the public service – whoever provides it. The Scottish Information Commissioner has advocated a similar approach.

The consultation paper is available here - http://www.gov.scot/Publications/2015/06/5112/downloads - and is open for comment until the 4 September.  During the summer the Campaign for Freedom of Information in Scotland will be co-ordinating a campaign to try to ensure that the original aim of Freedom of Information; that all public services are open to Freedom of Information requests is restored to those who have been excluded from coverage.

Today brings a key decision for our Freedom to ask for Information

The Campaign for Freedom of Information
has driven the campaign

Today (Wednesday) a key opportunity presents itself for our Scottish Parliament to take a second step towards an opener, more transparent Scotland. Its Finance Committee, having taken one step in that direction, receive the Scottish Government’s Freedom of Information (Scotland) (Amendment) Bill back to discuss submitting amendments to its provisions. The one step forward they have already taken is to issue a report at stage one criticising key aspects of the original legislation - the lack of any concrete proposals to deal with the crucial problem of the increasing delivery of our public services by non-public organisations, and the Amendment Bill’s attempt to ape the ill-considered Westminster exemption barring any enquiry into communications with the Monarch or her heirs (the so-called ‘Royal’ exemption).

High Ground?

While the public pronouncements of the Scottish Government have consistently sought to take the accountable high ground in the freedom of information (FOI) debate - they even have their ‘Six principles of FOI’ rapidly moving deeper into the bowels of the SG website - their record in practice has left some observers wondering what the real agenda is.

And this isn’t a reference to high-profile controversies like attempting to take the Commissioner to the Court of Session over revealing whether legal advice on the EU and an independent scotland, or over the release of the figures they had commissioned on reform of the Council Tax. The problem this time is that a clear opportunity to amend major flaws in the law offered by the introduction of an Amendment Bill, has so far not been taken; a huge disappointment to campaigners and practitioners.

Ten years of no use

Despite the concern expressed ever since the original Act was passed - concern that delivery of public services by non-public bodies removes them from the public scrutiny intended in that Act - governments since have neither used the provisions in the law to ensure such bodies were covered, nor have they made any attempt to change the law to create automatic coverage.

The announcement of an Amendment Bill by the new majority government gave campaigners hope that the consultation on designating some non-public bodies the previous minority administration had started and then dropped, would be revived. But no such proposal emerged.

The Bill that was deemed worthy of Parliamentary time introduced a small number of worthy improvements it is true, but the claim that it would ‘ensure that the legislation remains fully effective’ has a hollow ring to it. The Finance Committee’s Stage One Report outlined much of the evidence outlining why variation of service delivery is eroding the effectiveness of the legislation.

Committee Opportunity

Nicola Sturgeon - her withdrawal of the
Royal exemption is welcome

The Committee this morning has a number of important amendments to the Amendment Bill to consider. It is to be welcomed that the government has seen the sense in deleting its new ‘absolute’ Royal exemption. However tackling the major flaw of the erosion of coverage is still not being done. Even the review of Section 5 that his proposed is only scheduled to be done every three years, and not start until 2016! As the Scottish Information Commissioner says “given that the section 5 power has now lain dormant for ten years, I would question whether it is appropriate to delay the laying of an initial report for a further three and a half years, until June 2016.”

Fortuitously, a series of amendments have been laid before the Committee, by one of its members, Elaine Murray MSP. While there may be a technical issue with one, overall they would mean a huge step towards re-establishing Scotland’s FOI regime as a leading example to other countries, and a powerful utility in bringing openness and transparency to our public services. Let’s hope our representatives on the Finance Committee support them.

Did Freedom of Information troubles tip the balance in EU advice U-turn?

In all the welter of comment on the current ‘scomnishambles’ or ‘advicis’ crisis in which the Scottish Government have embroiled themselves, I haven’t yet seen an analysis that looks at whether the withdrawal of their appeal to the Court of Session has a Freedom of Information rationale behind it, and in particular the role of the Deputy First Minister in the decision.

Nicola Sturgeon, wanting to
 avoid a fight on two fronts?

It is of course, entirely possible that the sudden withdrawal of the Scottish Government’s appeal against the Scottish Information Commissioner’s ruling, was due to the new Constitutional Supremo (Nicola Sturgeon) looking at the contradictions in their position solely from a Referendum Campaign perspective and deciding to ditch what was very likely to have become another failed appeal. After all the track record of the Scottish Government vs the (respective) Scottish Information Commissioners does not show a good strike record for the SG. 

As a lawyer, Ms Sturgeon cannot have relished going to the Court of Session to argue that the Government shouldn’t have to tell anyone whether they had obtained legal advice or not (not, you understand, what that advice was - the refusal to reveal that was already accepted by the SIC). Especially as it appears, they had not!!

So is it then a coincidence that Nicola Sturgeon, in the reshuffle, also inherited the responsibility for Freedom of Information? Or that this burden currently involves her trying to pilot a widely-criticised Amendment Bill through the Scottish Parliament? Or did the additional contradiction of trying to claim to be ‘improving’ the FOI legislation, while taking the Information Commissioner to court, add the final straw to this particular camel’s back?

Indeed the Amendment Bill itself isn’t getting the plain sailing that was envisaged by the Minister who introduced it (Brian Adam MSP). It has been widely criticised by a number of organisations including the Campaign for Freedom of Information in Scotland, the STUC and the Commissioner herself, and is shortly due to be debated at Stage 1 in the Parliament. The Finance Committee is currently considering its Stage 1 report. By the look of the evidence sessions, the new FOI supremo got a much harder time than her civil servants had prepped her for - and from some of her own side! 

The SNP reshuffle of committee appointments, hasn’t assisted the Bill’s progress much, although Bruce Crawford’s appointment onto Finance is widely seen as an attempt to shepherd the Bill through. Interestingly the other new SNP appointment is Jean Urquhart MSP. Her commitment to openness is well-known. Will her recent resignation from the SNP group mean the shortest ever residence on a parliamentary committee?

At the bottom of this row are three issues: 

1. That the Bill does not address the main problem of FOI - the increasing use of non-public bodies (private contractors, housing associations, voluntary sector bodies and arms-length organisations - ALEOs) to deliver public services, resulting in the removal of FOI rights from the public.
2. How the law should ensure that such bodies are automatically added.
3. The attempted introduction of a further ‘absolute’ (ie non-challengeable) exemption covering communications with the monarch or the heir to the throne.

Given that the previous (minority) SNP government had at least started to address the first two issues when they dropped it prior to the last election, campaigners were surprised and disappointed that when the now majority, government found time to introduce new legislation, it failed to deal with them.

After FOI defeat over the financial implications of Local Income tax; the embarrassment of the row over disclosing whether the Scottish Government recommended Brian Souter for honours, and now the climb down over EU legal advice, it seems that Nicola Sturgeon is well-versed in the dictum - if you’re in a hole, stop digging! 

"I'll do it again, you know."

However her boss today claims that he would again refuse to reveal whether he had advice in the future. A statement that appears only too obviously to be a return to the bad old days of arrogance that Messrs Pringle & Co have been trying to move him away from. It is also a very different approach from his deputy. So much so, that it raises speculation about who took the decision to drop the appeal, and whether both the FM and the DFM agreed with it! I guess any such division won’t be revealed either!

In these circumstances it also becoimes interesting to watched the progress of the FOI Amendment Bill. The Stage 1 report is in discussion, a parliamentary debate approaches. Might there still be twists and turns ahead in what the Government obviously hoped would be a technical, tidying-up bill?

Importing changes from London would be a mistake

A seminar in Dundee yesterday (30/05/12) heard that it might not be such a good idea to import freedom of information (FOI) developments direct from London.

While this included the Scottish Government’s proposed ‘forelock-tugging’ adoption of the UK’s exemption of communications with a ‘quasi-feudal, privileged class, it wasn’t the only threat identified in the contributions to the Centre for Freedom of Information’s seminar. Two speakers from London warned of dangers to FOI being discussed as part of the (Westminster) Justice Committee’s review of the UK FOI Act.

Dr Ben Worthy, of the University College, London said that the review had allowed senior politicians to start speculation that FOI was leading to a ‘chilling effect’ on government decision-making, restricting free discussion of ideas in policy making, and that they were also peddling the idea that the ‘wrong’ people were using the Act. A wholly wrong concept, but one that was now gaining ground.

Ibrahim Hasan, of ‘Act Now Training’ and ‘Save FOI’ campaign agreed, and also warned that the review was being used to lobby for changes to restrict FOI access - he predicted increased fees and more exemptions.

Rosemary Agnew
- New Scottish Information
Commissioner

The seminar was also important as the first public outing for the new Scottish Information Commissioner, Rosemary Agnew. In what must have been a nerve-wracking presentation in front of a roomful of FOI practitioners and campaigners - not to mention her predecessor! - she delivered a creditable performance. In particular she warned government and others that her office was not going to stop pushing the boundaries of legislation, and in particular the need to address the democratic deficit caused by the failure to extend the coverage of the Act to follow both the public pound, and as importantly, public services.

It will be important for supporters of extending the Act’s coverage to continue to point to the ‘elephant in the room’ (As Brodie LLP’s Christine O’Neill put it) of the Scottish Government’s Freedom of Information (Amendment) (Scotland) Bill. A missed opportunity to address the real problem in the legislation, and ensure that all public service deliverers need be transparent in their work for us - whatever sector they come from.

And that absolute exemption for communications with the monarch or their heir? And indeed communications about those communications? Was that lifted from the UK Act to create a glaring anomaly in the transparency agenda just to shield the Scottish Government from embarrassing requests about Brian Souter’s knighthood? The seminar remained silent.

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.