On the record

How are we doing after five years, and what challenges do we still face? These in essence are the questions Kevin Dunion, the Scottish Information Commissioner, put to an invited discussion group last month to mark five years of freedom of information (FoI) in this jurisdiction. Central and local government, the Parliament and other public bodies, academics and interest groups, as well as solicitors specialising in the field, were all represented in a candid and revealing exchange of views.

The Scottish Act of 2002 (“FOISA”), Dunion reminded us on opening, aimed to make public bodies more open and accountable, and end the culture of secrecy. To what extent was it fulfilling its potential?

Most of those present agreed that the Act had brought significant change, though it was still a “work in progress”, as Carole Ewart of the Campaign for Freedom of Information put it.

Margaret Keyse, head of enforcement at the Commissioner’s office, thought it would take another few years to get rid of the culture of secrecy, while for David Gourlay of McClure Naismith, authorities now understand the legislation better, but are also “more alive as to what tactics potentially to use to restrict disclosure”. William Malcolm (Pinsent Masons) suggested that it would have achieved culture change when those in front line service delivery “regard it as part of what they do”, rather than just a bolt-on.

It didn’t take long for MPs’/MSPs’ expenses to surface, and Claire Turnbull, the Scottish Parliament’s FoI specialist, cited the Scottish practice of regularly publishing these as only one area where the public right to information underpinned the Parliament’s approach. Any contract worth more than £5,000 is another, she added.

Fear factor

Professor Janet McLean of Dundee University argued that the culture of secrecy could not survive the huge change in public attitude away from expectancy of obedience to government – and governments were also realising that there were real advantages (sometimes at least) in being more open. But the “hard edge” to this was where the accountabilities of government agencies to officials or ministers conflicted with those to the public.

Agreeing with her, Brodies’ Christine O’Neill believed the real problem was a “culture of anxiety”: people withhold information “because they are scared of what they perceive as the consequences of releasing it”.

“Senior management always remember the last thing that went wrong, not all the things that went OK”, Donald Henderson of Perth & Kinross Council added. “They only see the potential for another bad story in the press.”

“People haven’t learned to manage what they can’t control”, he continued, prompting debate on the role of information as power. And Fiona Killen of Anderson Strathern warned that we shouldn’t kid ourselves – the attitude still prevails at a very high level of government of looking for “good days to release bad news”. Linking control and power was just the way politicians think, and it needed to be counterbalanced with a strong Act. There were gaps and problems with the present one.

“I don’t fully accept the culture of secrecy”, Alicia McKay of the Scottish Government’s FoI unit protested. Maybe in years gone by the Government “didn’t actively make information available”, but since the Act it had trained staff “to think of possible publication at the time of creation of records”, and the way these were done had become more professional.

Colin Reid, also a professor at Dundee, raised the wider cultural issue of whether it was possible to imagine freedom of information without IT developments and the way information is used now. Ewart however claimed that it had taken the Act for the Parliament to live up to its promise to be open and accountable; and BBC solicitor Ros McInnes, agreeing, suggested that in areas outside FoI, “secrecy is alive and well” – citing the example of Crown productions in the Lockerbie case.

There is an opportunity here as well, Malcolm pointed out – to inform and educate the public by releasing information so as to “control the story”. That’s how it was done with surgical mortality rates, to avoid them being misrepresented: “potentially explosive information being disclosed well”, in contrast to our MPs.

But a refusal to release information doesn’t necessarily mean an authority is disregarding the spirit of the Act. “Sometimes the motive is clarity”, said O’Neill, who admitted she might advise an authority to leave the decision to the Commissioner in a doubtful case. “That’s not cynical”, Killen added: it would prevent an authority making a wrong call on a breach of confidence issue under s 36(2).

Whose duty?

It was announced by minister Bruce Crawford in December that the Scottish Government is preparing to consult additional bodies, probably in late spring, for possible designation under the Act.

As Alicia McKay explained, one category under consideration, PPP/PFI contractors for projects such as schools or hospitals, is providing considerable problems of definition. A class description will probably be necessary, though it could then be difficult for the public (and the Commissioner) to identify who it covers.

Christine O’Neill suggested that similar problems could arise as under the Human Rights Act – until you have a clear sense of what is a public function, it is very difficult to make a designation order under s 5. Fiona Killen suggested that it might be even more complicated – some companies would be UK or foreign and the Scottish Parliament has no power to legislate for anything outside Scotland.

Or, William Malcolm added, you have complex group structures and you have to work out which company is the public authority.

David Gourlay wondered whether any extension would effectively be retrospective by applying to existing as well as new projects. There were also unanswered questions over what information should be disclosed in relation to procurement.

Kevin Dunion observed that there had been very few decisions relating to commercial information, perhaps because parties preferred to resolve cases rather than risk unwelcome precedents.

“FOISA is not the only way to skin the information cat”, O’Neill pointed out: you could oblige the public authority to hold the information, or put a duty on it proactively to publish. Dunion wondered if this would catch all the information that people might want, something that was difficult to predict; O’Neill replied that we were trying to get to the same position as if the authority had built the school themselves.

After commenting that the authority ought to have made detailed checks at sign-off, Malcolm flagged up a fear on the part of contractors that with some complex projects the information held by them and by the authority would not tally. Dunion observed in response that people are already adopting the practice of making requests to more than one authority, and sometimes finding that the records of one may be in better shape than those of another.

A difference emerged over the potential benefits to the “public pound”, with Carole Ewart maintaining that freedom of information leads to better government, while Alicia McKay countered that there was little empirical analysis to suggest that it did. Ewart returned to MPs’ expenses… but agreed that the cause of FoI was poorly served by the lack of proper review of its effects.

As for other bodies that might be covered, Margaret Keyse observed that a large number of requests received about bodies not currently designated relate to the Law Society of Scotland – so does its regulatory function justify inclusion even though individual firms are not public authorities? Others mentioned the General Teaching Council for Scotland as possibly in the same position, as well as the obvious candidates such as COSLA and ACPOS.

Hurdles ahead

Then it was time for some crystal ball gazing as the Commissioner invited the meeting to predict the biggest challenge facing the FoI regime in the next five years.

Christine O’Neill foresaw resources coming under pressure, with fewer officers appointed or work being delegated to less qualified staff. More positively, Donald Henderson thought we might start seeing chief executives being appointed who, to paraphrase, had grown up with FoI rather than having to adapt to it as something new.

There would also, he added, be the impact of a new Commissioner – inevitably a different person in charge would express things differently, as had already been seen in England & Wales.

William Malcolm believed that economic constraints would bring more creativity in forms of service delivery, posing a challenge to the regime to keep pace in terms of defining designated authorities; and Janet McLean predicted that the Commissioner would face increasing pressures as people attempted to find out how limited public resources were being spent – how to avoid getting “swamped by complaints like every other ombudsman”?

There was a pattern in other jurisdictions, Kevin Dunion told us, of numbers of complaints reaching a plateau, then falling, then starting to rise again. England had bucked this trend but Scotland had not, and he was currently seeing quite a sharp rise – whether due to more authorities informing people of their rights or to deteriorating performance he wasn’t sure.

SEPA’s Alison Mackinnon commented that some requests are becoming more sophisticated (“deceptively simple”), with people making requests in a more targeted way, ranging from very local to national issues. And some (lazy?) journalists make the same request to large numbers of bodies on matters such as running costs.

Dunion observed in response that a single journalist had caused the release of all information on cars involved in MoT failures, an important subject for consumers!

Mackinnon and Malcolm traded views on the challenge posed to records managers and the potential for IT searching to deliver answers (or just “stuff”?), while Henderson suggested there was “still a big gap between aspirations and the reality of data storage” – some officials still keep information within their own control because they are “scared of the data sharing implications”. Dunion added: “It staggers me that when I ask what information is held by an authority, no one has notebooks or informal records. I’m supposed to assume that the formal records are always up to date and that the search has been conducted adequately… I or the next Commissioner may have to take the view that part of our function is not to be so trusting of the adequacy of a search.”

For the Scottish Government, Alicia McKay suggested the tenor of the discussion was “unfortunate in focusing on a few bad authorities or cases”: she hoped that the next five years would see a positive story of identifying better what the public wanted to see, responding to that, and improving their understanding of how decisions are made and their ability to engage and inform decisions. To back this up, she said the Government had had 1,200 FoI requests last year and only 49 appeals had been made to the Commissioner.

Supporting her, Claire Turnbull said the Parliament had dealt with 300 requests of which over 90% had been met; there had been only five reviews and one appeal. “I like to base discussions on fact, and the facts show that something good is happening.”

Fiona Killen warned against complacency, while Carole Ewart claimed FoI was a “fantastic news story” but the challenge would be to ensure that a robust approach continued following a change of Commissioner, as there was a surprising degree of discretion over interpretation of the Act.

No conspiracy, but…

Dunion didn’t believe there was a conspiracy to withhold information, and wasn’t “pouring cold water” on the positive comments, “but I know from experience that not every authority is as committed as those here”. A new development this year was “good practice assessments” – taking a look at an authority’s systems and suggesting improvements, which to date had always been implemented though some poorer performers were about to be reviewed.

He also reported “vastly more cases being settled” – which his office only does if the applicant gets at least as good a result as they would with a determination.

Should cases be prioritised? It’s understood that this happens in England, though perhaps as a means of discouraging authorities from attempting to “kick requests into the long grass”, as Margaret Keyse put it, when they know there are growing delays in determining appeals.

Henderson suggested it would go against the spirit of FOISA – anything that went to appeal must be important to the applicant – but Colin Reid argued that information was usually wanted for a purpose, and what if it was only of value for a limited period? McKay thought it might be difficult to apply in practical terms.

David Gourlay pointed out that we hadn’t touched on whether the enforcement powers were appropriate, and wondered whether the Commissioner should have power to impose penalties where authorities were seen to be dragging their heels. There were murmurs of “Don’t give him ideas!”, but Dunion as usual was alive to the issue, informing us that in India there is a power to fine civil servants for delaying a response – not that he was proposing the same here.

Deliberate destruction of records with a view to frustrating a request might also call for stronger action.

And, noting that we had now reached the stage of lawyers proposing new fines for their clients, Dunion decided the meeting had served its purpose.