Meeting of the Parliament

Meeting date: Tuesday, June 13, 2017

Official Report 795KB pdf

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Freedom of Information (Scotland) Act 2002

The next item of business is a members’ business debate on motion S5M-05946, in the name of Neil Findlay, on leading journalists criticising the Scottish Government over freedom of information requests.

Motion debated,

That the Parliament notes with great concern the letter from whom it understands are 23 prominent Scottish journalists to the selection panel for the appointment of the Scottish Information Commissioner, which was published on 1 June 2017 by The Ferret and Common Space and details what they argue are the failures of the Scottish Government and its agencies in relation to the Freedom of Information (Scotland) Act 2002 (FOISA); understands that it suggests that the application of FOISA by ministers and officials is questionable at best and, at worst, implies a culture and practice of secrecy and cover up, including, it believes, through routinely avoiding sharing information, often through not recording or taking minutes of meetings that are attended by ministers or senior civil servants; considers that this flies in the face of what it sees as the Scottish Government’s much-vaunted assessment of itself as open and transparent, including through the Open Government Partnership Scottish National Action Plan and its role as one of 15 pioneer members of the Open Government Partnership’s inaugural International Subnational Government Programme and legislation such as the Public Records (Scotland) Act 2011; understands that the Scottish Government introduced its Record Management Plan to comply with the 2011 Act; notes the view that the journalists’ criticism of FOISA shows that it is time to have a review of whether the legislation remains robust or has been diminished, whether it should be extended and strengthened and whether elements of it are still appropriate, such as the level set for the cost exemption, whereby the Scottish Government may refuse to provide information if the cost of doing so exceeds £600, a figure that hasn’t been updated since FOISA came into force, and further notes the view that, by doing so, this would ensure that people in Lothian and across the country who use their freedom of information rights could be confident that FOISA would be improved and applied in a way that was consistent with the spirit intended when the law was established.

17:02  

I thank members of my own party, Greens, Liberal Democrats and members of the Tory party for signing the motion. Sadly, no member of the Scottish National Party managed to sign it.

The Freedom of Information (Scotland) Act 2002, which was introduced by a Labour Government, aimed to provide the public with the right to access information that is held by the state about what is being done in their name. An Ipsos MORI poll from 2017 showed that 94 per cent of people agreed that it is important for the public to be able to access such information.

The right to access information has three distinct elements. The legislation empowers people to make an information request and receive the information quickly; it permits people to see what has been disclosed and when; and, importantly, it provides the ability to enforce that right.

When I came to the Scottish Parliament, I naively expected parliamentary questions to be the vehicle that I would use to find out information. How wrong I was. I can describe the quality of replies that we often get back only as dross. They demean the Parliament. Many of them, at a processing cost to the public purse of £12 each, would be as well going in the shredder.

For many of us, the remedy is the Freedom of Information (Scotland) Act 2002. It provides for a process that costs yet more public money, time and a not insignificant amount of effort. As with the answers to parliamentary questions, we increasingly find that FOI requests elicit little or no information.

Of course, it is not just members of the Parliament or the public who use FOI as means to try and break through the secrecy of Government and public bodies. Journalists use it, too.

Just two weeks ago, 23 prominent journalists signed an open letter to the Parliament in which they raised very serious concerns about how FOI is being mishandled—in my view, deliberately mishandled. They highlighted delays beyond the 20-day period for answers as well as

“emails asking for an update on ... requests in cases of delays ... being routinely ignored by officials; ... officials delaying responses for so long that the initial requests only get answered under internal review, making it impossible for journalists to ask for incomplete replies to be internally reviewed again”—

resulting in longer delays as they have to go to the Scottish Information Commissioner—

“government officials taking control of requests to other government agencies without the consent of the applicant; ... requests being blocked or refused for tenuous reasons”

and

“requests being screened for potential political damage by special advisers and ... responses to individual journalists being routinely handled by special advisers.

Those complaints have been made by respected journalists including Rob Edwards, Severin Carrell, Dan Sanderson, Andrew Picken, Bernard Ponsonby, David Clegg, Michael Blackley, Paul Hutcheon, Tom Gordon, Kieran Andrews, Simon Johnson and others. It is incredible that such a diverse list of experienced journalists felt that they had no option but to make them. I particularly thank The Ferret and CommonSpace for their excellent work on the issue.

The curtailing of a free press, the refusal to release information and the maintenance of a culture of secrecy are tactics deployed by despots and dictators, not a Government that boasts that it is one of the 15 pioneer members of the open government partnership’s international subnational Government programme.

My office uses FOI regularly to try to hold those who are in power to account. Time and again, the Government routinely blocks the release of information or redacts it. We are regularly told that meetings listed in ministerial diaries have no agenda and no minutes, and that no notes were taken because no substantive Government business was discussed. Let me give members a few examples.

On 21 January 2016, the First Minister and senior civil servant Lisa Bird met financier Peter de Vink at Edinburgh’s New Club, which describes itself as

“Scotland’s Oldest ... and pre-eminent private Members’ Club, featuring fine dining, entertainment and a socially vibrant atmosphere”.

I could not comment—I have never been. There was no agenda and no minutes were taken.

On 26 September 2016, again at the New Club—it is a popular place, apparently—John Swinney and Fiona Robertson, director of learning at the Scottish Government, met businessman Angus Tulloch. There was no agenda and no minutes were taken. On 2 November 2016, Derek Mackay and a senior civil servant met Barry White and Peter Reekie of the Scottish Futures Trust. There was no agenda and no minutes were taken. On 9 November 2016, Humza Yousaf met Phil Verster, who was then at ScotRail. There was no agenda and no minutes were taken—members know the routine.

On 29 October 2016, John Swinney met Sally Loudon, the chief executive of the Convention of Scottish Local Authorities. There was no agenda and no minutes were taken. On 25 February 2016, John Swinney met senior INEOS officials. There was no agenda and no minutes were taken. On 7 September 2016, Nicola Sturgeon met Alan Muir, editor of The Scottish Sun. There was no agenda and no minutes were taken. On 15 June 2015, Nicola Sturgeon met Andrew Wilson of Charlotte Street Partners. Members have guessed it—there was no agenda and no minutes were taken.

Are we seriously supposed to believe that ministers met the chief executive of ScotRail, INEOS, which wants to frack half of Scotland, COSLA, directors of the Scottish Futures Trust, the editor of one of the country’s biggest-selling newspapers and a senior lobbyist and chair of the SNP’s growth commission, and that no substantive Government business was discussed? The Government seems to think that we all zip up the back.

Only yesterday, I received a very late response in relation to the transvaginal mesh review. The reply is remarkable. At the Public Petitions Committee meeting on mesh, the Cabinet Secretary for Health and Sport said:

“there were a great number of FOI requests that involved a lot of information. I reassure Mr Findlay that we will respond to his FOI request as quickly as possible. His office has requested a great deal of information, which it will take time to gather. However, the response will be issued as quickly as possible.”—[Official Report, Public Petitions Committee, 18 May 2017; c 37.]

Yesterday, only nine emails or letters were released. Is that the “lot of information” that the cabinet secretary promised? However, it gets worse. We were denied all other information because the Scottish Government claims that the review that it set up was independent and, as such, does not fall under FOI, even though the Government provided the secretariat to the group and has admitted that it holds all the minutes and correspondence. What a farce.

There are a few more meetings that I have received information about just today. On 14 May, there was a meeting between John Swinney and Educational Institute of Scotland Further Education Lecturers Association regarding the colleges dispute. There was no agenda and no minutes were taken. On 16 September 2016, Keith Brown met businessmen to discuss Chinese investment in Scotland. There was no agenda and no minutes were taken. That is farcical, but it is not just the Scottish Government that is at fault. We find that other public bodies are using similar tactics.

I call on the Parliament to take these matters very seriously indeed. Scotland is not a pioneer in open government; it is a country in which there is systematic avoidance of scrutiny and accountability from the highest level down. I call on the Standards, Procedures and Public Appointments Committee to hold an inquiry into the claims that were made by the 23 journalists. There must be a wholesale review of the way in which the Government operates FOI. We cannot allow the current practice to continue.

17:11  

I thank Neil Findlay—not something that I am in the habit of doing—for bringing the matter to Parliament and for his excellent speech. I also thank the 23 journalists who wrote the open letter to highlight their concerns about the handling of FOI requests. I note that their employers range from the BBC and STV to the Daily Record, the Daily Mail and even the Sunday Herald, which is not known for criticising the Scottish Government. However, I was disappointed not to see a signatory from the Scottish Sun, my former employers. I hope that their omission is because they were not asked and not because they refused.

Serious issues have been raised by the journalists. In a democracy, it is essential that authorities are open and transparent, and the purpose of the Freedom of Information (Scotland) Act 2002 is to ensure that they are. However, when the people who run the Government or councils are centralising and mistrustful of the public, they will try to find ways around the law. That is what has been going on, and the journalists have shone a light on the practice. The former Scottish Information Commissioner Rosemary Agnew said as much when she described the behaviour of ministers as “totally unacceptable” and “rude” with regard to freedom of information.

The Scottish Government says that it is “outward looking” and

“more open and accessible to Scotland’s people than ever before”.

It promises to be a “beacon of transparency”. Those words are easy to say but less easy to back up, as the evidence shows the opposite.

I cannot help thinking that the Government’s response to tricky questions is not to tell people what they want to know but to ask, “What shall we tell them?” If the instinct is to keep things hidden, the response to potentially embarrassing requests could be to say that records have not been kept or that minutes were not taken. Failing that, stalling tactics are employed, which I presume are to frustrate the person who requested the information in the hope that they will give up and go away.

The journalists’ letter makes allegations of information requests being delayed beyond the deadline; emails to ask for updates being ignored; endless delays leading to complaints to the commissioner;

“requests being blocked or refused for tenuous reasons”;

and

“requests being screened for ... political damage by special advisers”.

We have had quite enough of special advisers.

Will the member take an intervention?

I will, if I am allowed time for it.

No.

There is no extra time, so I cannot take an intervention.

I have heard Joe FitzPatrick’s meandering and vague answers in Parliament on the matter, which do not wash. I hope that we will get more sense today.

As I said, I used to be a journalist. The press has its faults, but a free press and open government are essential to our democracy. There should always be a tension between the press and the Government, because Governments always have things that they do not want people to know about and it is the job of journalists to find out those things. We should remember the farce that we had when the SNP said that it had taken legal advice on an independent Scotland’s place in the European Union. It spent thousands of pounds of taxpayers’ money to stop us discovering that it had no such advice.

No wonder Rosemary Agnew formed the view that she did. The Scottish Government needs to change its ways. Yes, there are times for private discussions in which people can talk about things openly—try telling that to the First Minister—but freedom of information provisions are not there to be got round. That is what has been happening.

17:15  

I pay tribute to my colleague Neil Findlay for bringing this important matter to Parliament. Freedom of information legislation is based on the simple democratic principle that the public have a right to know about the decisions and actions that are taken in their name by the people they elect and pay the salaries of.

Journalists have used FOI to great effect, sometimes with devastating consequences for Governments or individual politicians. Individuals and community groups also use FOI legislation every day to find out important information on issues that matter to them.

We are told that requesting information from a Scottish public authority is simple; all that we have to do is ask. We do not even have to live in Scotland and we do not have to mention FOI. Likewise, we do not have to give any reasons for why we want the information. That comes from the Scottish Information Commissioner’s booklet “Your Right to Know”, which includes tips on how to ask for information. It says:

“You can ask for any recorded information the authority holds at the time of your request.”

Types of information that the authority might hold that are of interest to the public include internal correspondence, reports and minutes of meetings. The booklet also says:

“It may be helpful to add your phone number or other contact information if you are happy for the authority to contact you this way.”

That might help to speed the inquiry up. If it is so simple to ask the questions, why is it so difficult to get the answers?

The Scottish Government is under attack tonight, so I am not surprised that no SNP members signed the motion. However, given the list of appalling sins that Neil Findlay read out, it is in the interests of all members, on behalf of all our constituents, to take the matter seriously. Many ministers, including the First Minister, were named in the list that Neil Findlay read out. I saw Fergus Ewing sitting at the back of the chamber. Maybe he was checking that he did not get a mention; I see that he is no longer with us.

When 23 prominent Scottish journalists feel the need to clearly outline what they see as the shortcomings of how FOISA is being interpreted and implemented by the Scottish Government and officials, it is clear that something has gone far wrong. The principles of open and transparent government, which are much flaunted by the current Administration, are in stark contrast to the vast majority of the experience of those who use FOI legislation to obtain information.

Graham Simpson alluded to some of the problems that Rosemary Agnew, a former Scottish Information Commissioner, outlined when she described the behaviour of Scottish ministers as “rude”, “totally unacceptable” and “unnecessarily pedantic”. That does not read well.

Ahead of tonight’s debate, Severin Carrell from The Guardian outlined that the Scottish Government abruptly stopped publishing FOI request responses on its disclosure log on the Government’s website. That only makes it harder for the public and professionals to keep track of the responses. The introduction to the disclosure log states:

“The Government’s policy is that where we release information in response to a FOI request we recognise that it will usually be of interest to the wider public in addition to the original applicant.”

Why take all the information away?

Earlier this year, I asked the Scottish Government for a record of any meetings that officials or ministers have had with organisations to discuss the provision of sanitary products, which relates to my campaign work on period poverty. As a new member, I thought that asking a straightforward parliamentary question would be the right route to get information. I got an answer that had been cleared by spads and to which exemptions had been applied, and I am none the wiser. Likewise, on colleges, I asked for information about John Sturrock QC, who has been appointed as a mediator to the disastrous negotiations on national bargaining, and I got a ridiculous response to a parliamentary question. I hope that, when I get some FOI replies in the next couple of weeks, I will get further information.

There is huge concern among the public about the prevalence of fake news, so it is critical that the public have information that we can trust and of which we know the provenance. My 10-year-old daughter and her classmates recently had a lesson on how to spot fake news. It would be interesting to give them a list of FOI responses and ask what they made of those.

17:20  

I thank Neil Findlay for securing the debate. I also thank the journalists who wrote the letter of 1 June that highlighted concerns about the operation of freedom of information legislation, particularly with respect to requests made of the Scottish Government. That letter came on the back of the criticisms of the Scottish Government that were made by the outgoing information commissioner and which have already been quoted, in which she talked about the Government being “unnecessarily pedantic” and about its “poor” approach to freedom of information law.

On the face of it, journalists appear to be being treated differently, and yet they play a vital role in holding power to account. Beyond this debate, I ask the minister whether he will be providing a full response to the journalists who wrote that letter to the Cabinet Secretary for Finance and the Constitution, Derek Mackay.

It is clear to me that we need proper post-legislative scrutiny of the 2002 act, if for no other reason than that an important part of the regime—the Environmental Information (Scotland) Regulations 2004—is a European Union directive that will be affected by the United Kingdom leaving the EU.

I want to use my three minutes to highlight three suggested improvements to FOl legislation. The first is the question of an internal review, to which Neil Findlay alluded. The failure to respond to requests on time has led to the internal review process being used to address that failure and then being unavailable to be used to challenge an unsatisfactory response, leaving a full appeal to the commissioner as the only option for that. The law could be tightened by the provision of two distinct internal review procedures: one for failure to respond timeously or for other administrative errors, and one on the substantive question of whether the information requested has in fact been released.

The second improvement concerns logs, which Monica Lennon mentioned. It strikes me as odd that public authorities can, in response to freedom of information requests, release voluminous material to those seeking it, but that there is no statutory obligation on the authorities to tell anybody else that such information has been released. The means to do that is through a log of requests and responses published by the public authority. The Scottish Government and other authorities have done that in the past, particularly in high-profile cases such as the release of Megrahi, the decision to approve planning consent for Mr Trump’s golf course and, in the case of the City of Edinburgh Council, information relating to the tenement repairs scandal.

If freedom of information is to realise its full potential, all releases of information should be published in a log as a matter of course. It was something of a shock to read Severin Carrell’s testimony that the Scottish Government has published no log since December 2015. It would be useful if the minister would address that point in his closing remarks.

The final improvement is on the question of copyright. Five years ago I sought information about a Swiss banker called Henry Angest, who was the chairman and chief executive of Arbuthnott Banking Group and a former Master of the Worshipful Company of International Bankers. Mr Angest provided almost £7 million to the Conservative Party and was a funder of Atlantic Bridge, the charity that funded Adam Werrity’s excursions around the world with Liam Fox. Mr Angest has also provided substantial funds to the Conservative Party in Scotland, including for Murdo Fraser’s failed campaign for the Tory leadership, and he owns an estate in Perthshire through a company in Jersey.

In 2005 Mr Angest began providing funding to Perth College to finance research on private land ownership in Scotland. I asked Perth College about that money and about Mr Angest’s relationship with the college. In the response that I received, it was clear that Mr Angest was, among other things, angling for an honorary degree in return for his financial support. Perth College told me that copyright in the information that it had released belonged to Perth College and that its consent was required for me to publish the information. I asked for that consent, but it was refused. To this day, I cannot publish the information that I received five years ago for others to examine. Anyone wanting that information is, of course, perfectly free to make a separate request to Perth College. If information is released under FOI there should be a statutory right for people to distribute that information to anyone else.

The FOI regime needs serious scrutiny. It has performed well, as have the two commissioners to date, but the performance of some public authorities leaves much to be desired. The Scottish Government, in particular, has questions to answer. The public are entitled to answers to the questions that were raised by the journalists, and I hope that ministers will provide them soon.

17:24  

Neil Findlay is quite right that the Parliament should do no less than initiate a full inquiry into the effectiveness of the freedom of information regime, the culture and institutional behaviour of government at all levels and, in particular, the behaviour of ministers, special advisers and civil servants. Among the litany of worries that the journalists expressed in the much-cited letter, the one that strikes me as most important is when they write:

“This raises the question of whether Scottish ministers and civil servants now have a practice of not recording information that would previously have been recorded.”

Neil Findlay rose—

I will give way to Neil Findlay.

Is it not the ultimate irony that, in the application—

Excuse me, but could you wait until I say your name? It is for the Official Report—I would not like the official reporters to think that somebody else is speaking.

I call Neil Findlay.

Thank you.

Is it not the ultimate irony that, in the Scottish Government’s application to the Open Government Partnership strategy group, which was written by John Swinney, he says at the very end:

“At the end of the pilot programme we would be happy to mentor another government”?

“Irony” is one way of putting it; some unparliamentary language would be another way.

I am most concerned about the kind of institutional behaviour that has been much cited. That was never the intention when the legislation was passed in 2002. As some of us do from time to time, I dug out the Official Reports of some old debates from all those years back. You will remember those well, Presiding Officer, because you were there and you voted on that matter. Members from across the chamber have mentioned the independence of the commissioner. On that issue, the then Deputy First Minister, Jim Wallace, who introduced the proposed legislation, said in the stage 1 debate:

“The commissioner’s independence will ensure the integrity and credibility of the regime.”

He went on:

“It should not be a case of their saying, ‘How can we withhold this—do any of the exemptions apply?’ Instead, the commissioner will ensure that the default setting is disclosure.”—[Official Report, 17 January 2002; c 5458.]

Now we find in repeated examples—some are cited in the letter and more can be found in many other places—that that is exactly what has been going on. The behaviour has become institutional. Members cited the example of a previous commissioner describing the current Government as “rude” and “totally unacceptable”. When that happens, ministers should have the integrity to recognise that for what it is, which is a damning indictment of what is going on, and they should recognise the need for fundamental change. That is why Neil Findlay is right to argue for a full independent inquiry into what is going on and why the system is not working, as it assuredly is not.

My final point is on culture, because the issue comes down to the culture of behaviour and the fact that it is now not as it should be. Two very good points were made in the stage 1 debate. My good friend Bruce Crawford said:

“There is no doubt that without changing the culture of secrecy, there will be no change.”—[Official Report, 17 January 2002; c 5486.]

He went on, but that was a striking and correct observation about the principle of cultural change. Christine Grahame, who was very outspoken on the matter, as she used to be when she was in opposition, said:

“I want to address the culture of openness, which is at the heart of the bill. Those of us who are in Parliament have found it hard to detect the fresh breeze of openness blowing through the Parliament’s corridors.”—[Official Report, 17 January 2002; c 5477.]

She went on to make a point about parliamentary questions, but I will not bore the chamber with that.

There is a lot to be done in this regard. The culture needs to change. In that context, I can do no better than to quote Michael Matheson, who is a minister in the current Government and who made a very fair observation in the stage 3 debate in 2002. He said:

“The Information Commissioner of Canada said only last year”—

so that was 2001—

“that it has taken some 10 to 15 years to start to break down the culture of secrecy that exists in many of Canada’s public services. I believe that such a culture is probably even more deep-rooted in Scotland.”—[Official Report, 24 April 2002; c 8216.]

Well, indeed it is. Fifteen years on, we see what is happening, and it is time that things changed.

17:28  

I thank Neil Findlay for securing this important members’ business debate. It is always interesting to share a platform with Mr Findlay, even if it rarely happens. It is even more rare that we agree, but in this situation we do.

The freedom of information laws and procedures in Scotland, such as the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004, were introduced to improve Government transparency and to set strong standards. It is disappointing that we have heard from journalists across the political spectrum their serious concerns about the way in which the Scottish Government is interpreting and implementing the legislation. We have heard about concerns regarding information requests being delayed

“beyond the 20 working day deadline”;

emails requesting an update on cases “being routinely ignored”;

“officials delaying responses for so long that”

initial requests are answered only “under internal review”; and

“Scottish government officials taking control of requests to other government agencies without the consent of the applicant”.

I could go on.

In the open letter, the journalists explain that their experiences raise concerns about whether information requests by journalists are being “treated and managed differently”. When I, as a member of the Parliament, raise questions, they are usually met with a barrage of smokescreen, mirrors, diffusion and, in some cases, complaints to the Commissioner for Ethical Standards in Public Life in Scotland, which have all been ignored and rejected. I find that the journalists, with whom I have huge sympathy, are being treated differently, but so are members of the Parliament.

Delays and withholding information are not acceptable and it is no surprise that former Scottish Information Commissioner, Rosemary Agnew, ordered ministers to improve their performance. As parliamentarians, the question that we must ask ourselves is: does the SNP-led Scottish Government have a transparency problem or a code of secrecy? To be frank, I believe that it does. It must now take responsibility for its actions and address the concerns that are raised in the open letter.

Only last week, my colleague Jamie Greene pressed the Scottish Government on the matter during topical questions. He asked the Scottish Government what action it took to comply with freedom of information requests. Instead of giving him a direct answer—God forbid—the Minister for Parliamentary Business provided a long list of statistics. In fact, Joe Fitzpatrick argued that

“the number of FOI requests has spiked dramatically”,—[Official Report, 6 June 2017; c 7.]

as the Government has received more requests in 2017 than in the whole of 2007. That is probably because the level of secrecy means that it is the only way that people feel that they can get information.

Joe FitzPatrick also stated that in recent years the Government’s performance had been

“consistently better than the 61 per cent that was achieved under the last full year of the previous Administration.”—[Official Report, 6 June 2017; c 6.]

Not really. The Government is failing to answer the requests and it is not surprising that its members look uncomfortable on their benches.

The Scottish Government must accept responsibility for the situation and take action on the serious concerns that have been raised. It is unacceptable that it uses the legislation to undermine openness and accountability. That simply cannot continue in a mature democracy and I urge the Scottish Government to admit its failings, request a review and get on with the day job, which is answering the questions and dealing with the problems in Scotland.

17:32  

I thank Neil Findlay for lodging the motion and securing time for this important debate on how the Scottish Government is dealing with requests under the Freedom of Information (Scotland) Act 2002.

The virtues of openness that lie at the heart of that legislation have been exchanged in practice for vices of secrecy so that we are witnessing conscious and deliberate acts of political concealment—supported tonight by the total silence of SNP MSPs. I say to the Scottish Government and those members that it is no good talking of freedom of information and open and accessible government and that it is no good the Government saying that it adheres to the principles of the freedom of information legislation if its actions prove otherwise. Clearly, it is Parliament’s job to scrutinise and to hold to account the Government and it is the Government’s job to defend its record, but we face a Government whose first instinct is to tell members of this Parliament as little as possible. It is that first instinct to which journalists are objecting.

Straightforward parliamentary questions are met with evasion and a lack of detail. Members are sent off on wild goose chases or forced to submit FOI requests. Only last month, I asked the Government a legitimate constituency question. I asked what consideration it had given in the past five years to taking the operations of the Grangemouth refinery into public ownership. The answer that I got from the Minister for Business, Innovation and Energy told me that there were 20 billion barrels of oil in the North Sea, which supports 125,000 jobs in Scotland, and that the Government was supportive of investment that is consistent with its economic strategy. There was no direct answer to a straightforward and legitimate direct question in the public interest.

Any Administration committed to open and transparent government and at ease with itself would routinely publish agendas and minutes of meetings as a matter of course. Any information that should not be in the public domain for whatever reason would be redacted and the reason for the redaction would be published, again as a matter of course. We may not expect Official Report-standard records of Government internal and external meetings with, for example, outside commercial interests. We simply expect minutes that are, in the words of Dick Crossman,

“impersonal, dry, flat and precise.”

It is entirely right, however, that for the accountability of the Executive to Parliament and so to the people, we should have access to sufficient information so that the people can form and make reasoned judgments. It is wrong that ministers hold meetings with civil servants present in which no minutes are taken. Ministers cannot govern properly and democratically by unminuted fireside chats in the gentlemen’s clubs of Edinburgh. If we want to lead the way and to be open and transparent, the Scottish Government must cease the practice of ministers holding meetings for which there are no notes or minutes.

It stands, in conclusion, that tonight has revealed that we have the Scottish Government, the First Minister, the cabinet secretaries and now SNP back-bench MSPs on one side, and the sovereign Parliament, the press and the people on the other. I ask the SNP Government in all sincerity: is that where it wants to be, or is it time for it to square its conscience and its conduct with its words?

17:36  

I am pleased to speak in the debate and thank Neil Findlay for bringing it to the chamber. It allows me to address points in the motion and to highlight the Government’s achievements in its effort to build a culture of openness and transparency across Scotland.

I will cover most of the points that have been raised, but I did not intend to cover the point that Monica Lennon and Andy Wightman made about disclosure logs. I do not think that we have taken anything off our website or removed any information. I know that we are not talking about a statutory requirement, but I will consider the issue, because I can see the advantages of that even though it is not in my notes to cover the issue.

As a country, we can be proud of our record on freedom of information. In her special report, which was published in April, the former Scottish Information Commissioner stated that,

“since Scotland introduced the Freedom of Information (Scotland) Act 2002, it has put itself ahead of the international field.”

The minister mentions the previous Scottish Information Commissioner. Why did she describe the Government ministers as “rude”?

I will come on to some of the circumstances around her intervention. That will be covered later.

Our public records legislation demands the highest standards of authorities in responsible records management and, internationally, the Open Government Partnership has recognised our commitment to openness, transparency and citizen participation. I recognise that our performance in responding to freedom of information requests on time is not good enough, but I assure members that we are engaging with the office of the Scottish Information Commissioner to meet the high standards that are rightly expected of us.

On the failures to respond, the commissioner’s report said that she had received 10 failure-to-respond appeals although ministers reported that there were none. How did that happen?

I would need to look at the specifics of the numbers.

I will talk a bit about why we have perhaps not performed quite as well as we would hope to. I hope that colleagues recognise my acknowledgement that we are not where we want to be.

Over the years, the volume of requests has increased substantially. More than 2,000 information requests are now received annually. Even so, we managed 1,674 responses on time in 2015 and 1,557 in 2016. Those figures compare to only 684 responses having been issued on time in 2006—the last full year of the previous Administration. In recent months, there has been a significant spike in the number of requests made to the Scottish Government. As Mr Mountain said, by April we had received more requests in 2017 than we received throughout 2007. With the best will in the world, that workload will inevitably put strain on resources.

In spite of the increase in workload, in 2016, 76 per cent of responses were issued on time compared to the figure of 61 per cent that was achieved during the last full year of the previous Administration. We received more requests, and more were responded to on time. To clarify: although our performance is better, it is not good enough, which is why, as I have said, we are working to improve it.

Does the minister not understand that, if parliamentary questions were answered properly, the number of FOI requests would go down? The reason that there is a spike is that we get absolute dross back in parliamentary answers.

Okay. Thank you. I am quite short of time.

I will turn to the policy framework. The Government’s aim is to keep our FOI legislation up to date to ensure that it operates effectively for applicants and public authorities. The latest major addition, the Freedom of Information (Amendment) (Scotland) Act 2013, improved and strengthened the legislation and paved the way for the lifespan of key exemptions to be reduced from 30 years to 15 years—the shortest in the United Kingdom. It gives journalists in Scotland access to information such as Cabinet minutes much earlier than their London-based counterparts.

This Government has also extended coverage of the 2013 act to numerous organisations that deliver public services, including local authority arm’s-length trusts and private prisons—a power that was never used by the previous Administration. In addition, the act ensures that new public bodies such as the Scottish Fiscal Commission are subject to FOISA from day 1.

I will quickly compare the legislation in Scotland with UK legislation. It is widely recognised that our legislation is much stronger. For instance, the UK act contains far more wide-ranging veto powers than our act contains. Such powers have never been used here but have repeatedly been used by Westminster Governments. A prime example of that, which is relevant to this Parliament, is the fact that the minutes of the Cabinet sub-committee on devolution prior to this Parliament being set up were withheld on the basis of that veto.

Does the minister not want to address the six separate points in the letter rather than talk about Westminster, please?

I will come to the letter.

The motion refers to the cost limit of £600, which is also referred to in the letter. It is important to point out that the limit of £600 has remained the same since 2005, as has the hourly rate of £15. It means that the cost limit has much the same effect now as it had back in 2005, and a request can be refused only if it requires more than 40 hours’ work. Again, in that respect, the Scottish legislation compares very favourably with the legislation in the rest of the UK, where, although the cost limit is also £600, the work is calculated at £25 an hour, which means that the UK Government routinely rejects requests on cost after only 24 hours’ work.

Will the minister take an intervention?

I do not think that I have time. I am sorry.

There is a major difference in the workload that is possible before the cost cap is reached.

Will the minister take an intervention?

I am over my time and I have other points to make. Mr Scott asked me to cover the journalists’ points, which I want to do.

Finally, in comparing Scottish FOI practice and UK practice—this is important because it is about getting information at all—the statistics for the UK, which are published by the Cabinet Office, show that the UK Government responds to only 63 per cent of requests when it holds relevant information. That figure compares to a figure of 85 per cent in Scotland.

One of the important things that we are doing—which, I hope, will help journalists—is proactive release of information. We are committed to proactively publishing information whenever possible, which means that journalists, members of the Scottish Parliament and the public can access that information without even making an FOI request. Whether it relates to engagements, travel or gifts, information on a raft of Government spending is automatically available and is proactively released. That is an important part of our open data strategy, which is helping to ensure that Scotland meets internationally high standards of publication.

Turning directly to the journalists’ letter, I note the concerns that were raised by the journalists who are referred to in the motion. Journalists play a central role in an open and accountable democratic society, and all information requests are handled in accordance with our guidance, which is in the public domain. If journalists are dissatisfied with any aspect of request or review handling, like any other requester they have a clear route of appeal to the Scottish Information Commissioner. The Scottish Information Commissioner’s intervention concerning our performance on timeliness demonstrates the strength of our legislation in that respect.

I will respond to Andy Wightman’s point. The letter went to the members of the selection panel rather than to the Government directly. We would obviously rather address the concerns without the need for anyone’s intervention, and my office has contacted Paul Holleran of the National Union of Journalists to that end. I do not want to have to defend us because the Scottish Information Commissioner has said that our timeliness is not good enough. As I have said, we are working on that. I will engage with the NUJ to try to understand its particular concerns, because, as I have said, the role that journalists play in a democracy is important and I need to recognise that.

You must bring your remarks to a close, minister.

The motion and the journalists’ letter refer to the minuting and recording of ministerial meetings. I assure members that the Scottish Government complies fully with all records management practices and policies, including those that are set out in the ministerial code. The code is clear that formal meetings should be recorded in a way that sets out the reasons for the meeting, the names of those attending and the interests represented. A monthly list of engagements that are carried out by all ministers is already published proactively, which never happened before. People did not know what was there.

Moving on quickly, yesterday I signed the first commencement order of the Lobbying (Scotland) Act 2016, paving the way for preparations for the lobbying register to go live in January. That is important for freedom of information. The purpose of the 2016 act is to increase public transparency by establishing a register to contain details relating to lobbying by paid consultants and in-house lobbyists of ministers and members. A lot of that data is already in the public domain in relation to ministers—

You must bring your remarks to a close, please.

Given that we are a Parliament of minorities, it is important that such transparency is extended to other members of the Parliament.

I had hoped to talk about the Open Government Partnership. Our aim is to use these tools to increase public participation and transparency and move towards the aim of being an open and accessible Government.

I must insist, minister. We are out of time.

Through our legislation, best practice and our wider civil engagement, we will continue to drive that ambition to be a more open and transparent Government.

On a point of order, Presiding Officer. One of the problems that we have had tonight is the fact that, yet again, no answers have been given to the questions. The point of asking questions is to get answers. Surely, the minister accepts that, if we got specific answers to freedom of information requests, there would not be quite so many of them.

That was not a point of order but a matter for the ministerial code. I suggest that you write to the Government once you have looked again at what has been said in the debate.

Meeting closed at 17:48.