On 21 June 2017, Parliament agreed to a motion that was critical of the Scottish Government’s handling of freedom of information requests. The motion called for an independent inquiry into the way in which the Scottish Government deals with such requests, and for post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002. The Scottish Government supported that motion.
Post-legislative scrutiny is, of course, a matter for parliamentary committees to progress. In respect of the independent inquiry, the Standards, Procedures and Public Appointments Committee agreed on 11 September 2017 that the Scottish Information Commissioner, who is independent of Government and holds extensive statutory powers of regulation and enforcement, might be the appropriate person to undertake such an inquiry. On 15 November 2017, the commissioner wrote to me confirming his intention to carry out a level 3 intervention into the Scottish Government’s FOI practice. He wrote to me again on 2 February this year, setting out the terms and scope of the exercise.
Members should be in no doubt about the thoroughness of the process that the commissioner has undertaken. The commissioner and his staff have had full access to the Scottish Government’s tracking systems for FOI and Environmental Information (Scotland) Regulations 2004 requests. Over a period of months, the commissioner and his staff have undertaken a detailed inspection of more than a hundred individual case records relating to handling practices between 2015 and 2017, including cases that were cited by members of the media. In addition, they have conducted in-depth interviews with a range of ministers, special advisers and officials across the Scottish Government.
I record my thanks for the professionalism of the commissioner’s staff and their efficient and businesslike approach. I am pleased that the report notes the positive attitude that has been shown by the Scottish Government towards the intervention.
I consider the report to be thorough and well balanced. While being very clear about where improvements are required, it notes where there is already good practice and acknowledges the improvements that the Scottish Government has been making in its procedures over the last 18 months, and the results that have been delivered on faster turnaround of requests. In his assessment, the commissioner makes it clear that he has found no evidence to substantiate a number of the criticisms that have been made about the Scottish Government’s approach. The report does, however, contain a series of significant recommendations for improvements in the Scottish Government’s performance and procedures.
As with all Scottish public authorities, the Scottish Government should meet the standards of good practice that are set out in the statutory code of practice. No authority—least of all the Scottish ministers—can take such obligations lightly. We therefore take the commissioner’s report very seriously. We accept all the recommendations that it makes and, as required by the commissioner, we will prepare and publish an action plan to put them into effect.
I turn to some of the report’s specific recommendations. A central focus is on the request clearance process. The commissioner highlights lack of clarity about roles and responsibilities, potential for confusion in our procedures and guidance about what is meant by “clearance”, and concerns about the time the process takes. As many members will know, the FOI process can be complex. It is therefore important that the people who are involved in it are clear about their roles.
The legal duty to comply with FOI and EIR legislation lies with ministers, who are accountable for all responses that are issued by the Scottish Government. Decisions on release can be—and in many cases are—delegated to officials. However, it is entirely appropriate that ministers are sighted on and content with proposed information releases, in line with the requirements of FOI legislation, in sensitive and high-profile areas. They will, after all, be the people who have to answer questions about the information once it is released. As in any other area of government, it is also appropriate that ministers are able to have the advice of special advisers in doing that.
Current Scottish Government procedures reflect those points. However, there is no doubt that the process itself can be time-consuming and that our guidance on roles needs to be clearer. In the light of the commissioner’s report, and in line with our continuing efforts to reduce turnaround times, we will review current guidance and assess the appropriate levels at which decisions on release for different categories of information are taken.
The commissioner considered in detail whether the Scottish Government treats and manages requests from journalists differently from how it treats and manages requests that are made by other people, and whether there is any detriment to the quality of responses, as a result. Scottish Government guidance sets out a number of grounds on which case handlers should consider the views of special advisers and seek ministerial clearance, including whether the request is from a journalist, an MSP, a political researcher or another high-profile requester, or if the request is for “sensitive” information.
Only on the fact of explicitly identifying a particular type of requester did the commissioner conclude that there is a difference in treatment. He acknowledges that
“It may very well be the case that many requests for information from journalists, MSPs and political researchers are for sensitive information, in which case it may be entirely justified that clearance is required at a higher level in the organisation.”
However, he stresses that our clearance system should be based on the nature of the request and not on the category of requester. We agree, so I am pleased to confirm that our internal guidance has been updated, with immediate effect, to make it clear that decisions about the sensitivity of requests should be based on the information that is being sought rather than on the identity or role of the person who is making the requests.
It is important to note that the commissioner found no evidence that the difference in the clearance process resulted in detrimental treatment of the requester, other than on timing. He also found no evidence that the involvement of special advisers has resulted, as was suggested in the open letter from the media, in any deliberate attempt to reduce the amount of information that was being disclosed to journalists, or in any improper motives in the application of exemptions.
The report notes that
“the greatest number of cases sent through the clearance process were not subject to material change”.
Indeed, as the report states, the most recent statistics show that the percentage of refused requests was actually lower for journalists than it was for other requester types. From close assessment of the case files, the commissioner cites just one example of a deliberate delay in releasing information, while a handling plan was put in place. As the commissioner highlights, the most recent statistics show that response times of media requests are generally in line with response times of non-media requests.
I am pleased that the report acknowledges the steps that have been taken by the Scottish Government in the past 12 months to improve and monitor FOI performance, as well as the significant improvements in performance.
A range of improvement initiatives are under way. From July last year, we have proactively published all information that has been released in response to requests that have been received by the Scottish Government. We have significantly increased capacity in the Scottish Government’s central FOI unit, which provides advice, training and guidance across the organisation. We have introduced central oversight and clearance of review responses. Reporting measures have been put in place, which has enabled improved tracking of requests. Work is also under way on improvements to guidance and training. An improved tracking system to further improve reporting and monitoring is in the later stages of development.
Although those improvements will produce longer-term benefits, I emphasise the considerable improvement in performance in the past year against a continued increase in demand. In 2017, the Scottish Government received 3,046 requests, which was a 41 per cent increase in volume on 2015, and an almost threefold increase on 2006. In responding to those requests, 83 per cent were answered on time, which is more than the total number of requests that were received in either 2015 or 2016.
Against that backdrop of increasing request numbers, performance in the first five months of this year was 93 per cent, which is ahead of the 90 per cent target that was set by the commissioner. If FOI requests continue to be received at the same level, we estimate that we will process 4,000 requests this year.
Having accepted the commissioner’s recommendations in full, we will now undertake detailed work on how they can be put into effect. The commissioner requires the Scottish Government to produce a draft action plan addressing his recommendations for approval by 13 September. We are committed to meeting that deadline. The approved plan will be published and we will work closely with the commissioner on its implementation.
Ministers take their responsibilities for freedom of information very seriously, as part of our commitment to open government. Parliament can be rightly proud of Scotland’s FOI regime. The aim of any Scottish Government should be to act as an exemplar of good practice. Today’s report provides a firm basis for achieving that aim.