Meeting of the Parliament

Meeting date: Wednesday, June 13, 2018

Official Report 1393KB pdf

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Scottish Information Commissioner: Intervention Report

Good afternoon. The first item of business today is a statement by Joe FitzPatrick on the Scottish Information Commissioner’s Scottish Government intervention report. The minister will take questions at the end of his statement. I encourage members who wish to ask questions to press their request-to-speak buttons as soon as possible.

13:30  

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.

From listening to that statement, it is not entirely clear that we have been reading the same report. It is unbelievable that, after more than a decade in power, it takes a report such as this to get the minister to budge even an inch from where we were last June.

The report highlights a number of especially concerning cases: one in which the case handler became increasingly frustrated and repeatedly tried to get clearance from special advisers for two months; another in which a special adviser said that an exception should apply in a situation in which the FOI unit said that the case was flimsy; and another in which a special adviser asked for an exception to be applied but the case handler argued against that, and the information was withheld after an unrecorded meeting.

The report reveals an SNP Government that not only deliberately stands in the way of legally binding FOI requests that are made by the media, but goes to great lengths to delay or influence the information that is provided. Will the minister now apologise for his Government’s shameful record on transparency?

Clearly, Oliver Mundell has not read the report in full. As I said in my statement, it is clear that the Scottish Information Commissioner has found that the quality and level of information that has been provided to all requesters are equal. However, he identifies that timeliness was an issue, in particular with regard to journalists’ requests. We have accepted that point—as, I think, I did last year.

The commissioner also identifies the progress that has been made since last June. Oliver Mundell said that we are no further forward from last June, but the report clearly identifies the substantial progress that has been made over the past 18 months in terms of the quality and timeliness of our responses, in spite of a significant increase in the level of FOI requests that have been received.

I record my thanks to the staff across the Scottish Government who have managed, despite increased workload, to rise to the challenge of dealing with that increased level of FOI requests.

We believe firmly that freedom of information is an important right and an important part of our democracy, and I am pleased that, across Government, our staff have managed to rise to the challenge of a threefold increase in the volume of requests. This year, we are providing 93 per cent of responses on time, which is ahead of the 90 per cent target that was set for us by the commissioner.

This is a damning report. The Scottish Information Commissioner has said that the Scottish Government has to take action to act consistently within the letter and the spirit of the legislation. From the report, it is obvious that media representatives, MSPs and MSPs’ researchers are being treated differently from other people. The 23 journalists who signed the joint letter to the Scottish Parliamentary Corporate Body have now been vindicated.

The commissioner also said that, due to deficient record keeping, he was unable to tell whether the information that was given to those groups was different. However, because FOI requests from the media, MSPs and their researchers take longer to reply to and are subject to a different process, the suspicion must be that the information that is given is also different.

How does the Government identify media and researcher requests, and what steps is it taking to ensure that those requests are anonymised in order to ensure that those requesters receive the same information as everyone else? Further, can the cabinet secretary confirm that action is required in five of the seven areas that were examined by the Scottish Information Commissioner, and will he now ask the Standards, Procedures and Public Appointments Committee to look into the standard of Scottish Government record keeping?

The guidance on dealing with the media and other areas for which we had a different process was in the public domain. The guidance on different types of requester had been in the public domain for a considerable amount of time; it is not some secret document or a secret approach to government.

We have, or course, listened to what the information commissioner has said. Although we have said that we will work with the commissioner on all the areas where there are recommendations to put a plan in place, we felt that it was important to make immediate changes to the guidance on requesters, to make it clear that media, members of the Scottish Parliament and their researchers should not be treated differently because of their position. That is in the public domain from today.

As for what committees decide to do, it is not for the Government to direct committees’ decisions on their work programme.

I appreciate that the minister confirmed the commissioner’s finding that there is no evidence that journalists suffered detriment as a result of Government guidance, but there are obviously concerns among the profession. Can the minister confirm what discussions he has had with the National Union of Journalists to discuss its concerns about FOI?

The member is right about the commissioner’s finding but, as I said, he made a strong recommendation and we have put in place new guidance on that matter.

Media scrutiny of the work of Government is an essential part of our democratic process and we welcome that scrutiny. Indeed, we facilitate that scrutiny. Every week, ministers undertake a wide range of media interviews, and every day the Scottish Government responds to a high volume of media inquiries. Last year, we responded to more than 5,000 requests from journalists, entirely outwith the freedom of information system. The latest figures show that, last month, we dealt with 449 inquiries from the media, and they were typically responded to within three hours.

The member asked about the NUJ. I met NUJ representatives last year to discuss some of the journalists’ concerns, and it is worth pointing out that many of our staff are members of the NUJ and other trade unions. I thank those staff for their efforts in helping us continue to improve our performance.

The report begins to reveal the Scottish Government’s standard of response, and it is starting to slip. I have personal experience of the lengths that the Government will go to to ignore requests or prevent information from reaching the public domain. That is a problem with not only FOI requests, but parliamentary questions and written answers. MSPs across the chamber routinely receive below-par responses. I have already raised that issue with my party to raise with the Scottish Parliamentary Corporate Body.

If transparency is the key to holding Government to account, will the minister commit to not only taking on the report’s recommendations, but looking into the Government’s record on answering parliamentary questions?

Brian Whittle is right to say that transparency is very important. The processes around parliamentary questions are very transparent. A member will put in a question and the minister will respond to it. If the member does not like the answer, they will try to ask the question in another way. All that is done openly and I do not see how it could be any more transparent than it is.

The member mentioned information getting into the public domain. The Scottish Information Commissioner’s report does not substantiate the comments that the member has made. Further to that, this Government has gone further than any Government, not just here in Scotland but across the United Kingdom, by proactively putting information into the public domain. I am keen to continue to do that. The information is important and we are keen to take steps to continue to empower our population. Information is very much a part of that, and we will continue to take the steps that we are taking. Clearly, members of the public have to get their information from a range of sources, and if the UK Government were to follow the Scottish Government’s suit there would be a lot more information in the public domain.

That was an opportune time for a Conservative politician to mention transparency. The minister stated that the Government will produce an action plan to put the commissioner’s recommendations into effect. Can he provide any further information about the plan at this stage?

We will take time to look at the recommendations in detail and work with the information commissioner to make sure that the way we propose to take the matter forward in our plan will achieve the aims that both he and we are seeking. The deadline is for the plan and proposals to be agreed and published before 13 September and we will, of course, put them in the public domain.

With this report, the Government has been found bang to rights: poor procedures and practice, inadequate record keeping, political filtering, withholding of records, unjustifiable delays, discrimination against journalists, MSPs and their researchers, and so much more. Now that the Government has been rumbled on how it disseminates information, what is it going to do about a key issue not within the remit of the report but mentioned in it—namely, the recording of information, minute taking and generally poor or non-existent record keeping of the Government? Finally, does the minister accept that there is a direct correlation between the dross that MSPs receive in written parliamentary answers and an increase in the number of freedom of information requests?

I do not recognise most of what Mr Findlay said. However—

Send me the answers that you are complaining about.

I will.

You do that—send them to me.

Less conversation across the chamber please; the minister is on his feet.

—on the—

It is the first time that we have heard about it.

Mr Swinney and Mr Findlay, please let the minister speak.

I do not recognise most of what Mr Findlay said, from the report or from reality. However, the Scottish Government fully complies with all record management policies, including those set out in the ministerial code. The code is clear that formal meetings should be recorded by setting out the reasons for the meeting, the names of those attending and the interests represented. We consider our record management guidance to be robust. However, as part of the programme to upgrade the corporate electronic record management system, the Scottish Government is revising the current information management training strategy. We will ensure that all staff are re-engaged with that process.

Can the minister confirm that the power to override or veto a decision of the commissioner has never been used in Scotland, unlike what has been done by successive UK Governments under UK FOI legislation?

Colin Beattie is absolutely correct.[Interruption.]

Order, please. Let us hear the minister.

Members say that I should respond to the report, but I will respond to the question, which is very important. Not only has the veto not been used by this Government, but it has never been used by any Government in Scotland. It is greatly to be regretted that the veto is regularly used not just by the current UK Government, but by previous UK Governments.

I thank the minister for advance sight of his statement, and for having the good grace back in June 2017—[Interruption.]

Will members please stop having conversations across the chamber and listen to the questions and answers?

Thank you, Presiding Officer. The minister had the good grace back in June 2017 to admit that there were problems, and that the complaints were legitimate. I commend the Scottish ministers for accepting all the Scottish Information Commissioner’s recommendations. I also put on record my commendation of the commissioner on a very thorough piece of work, which reveals serious failings. For example, it makes clear that different treatment was given to journalists and MSPs and that that has no basis in law.

In his statement, the minister said that

“The legal duty to comply with FOI and EIR legislation lies with ministers”,

and in paragraph 140 of his report the Scottish Information Commissioner said that

“There is nothing in FOI law or the ... Code of Practice which permits authorities to treat certain groups of requesters less preferentially than others”.

Given that, does the minister agree that the Scottish Government has broken the law? Secondly, why did Scottish ministers draft special rules in guidance for handling media requests in the first place? Which minister instructed that and who signed it off?

The Scottish Information Commissioner has given us recommendations about how we should make changes to those processes. We have accepted the commissioner’s recommendations, and on that particular point we have put in place new guidance with immediate effect.

I, too, thank Mr FitzPatrick for the courtesy of sending out his statement. It would help his front-bench colleagues if they did not spend the entire time shouting at everyone else, given the seriousness of the issue. [Applause.] Mr Swinney did not like that, but members will reflect that he spent the entire duration of the statement shouting at everyone else. His department is one of the worst in here.

The minister was brave enough to admit that MSPs and journalists have had their requests handled in a different way from other people who make FOI requests. Why was that so? What is the definition of “sensitive information”, which the minister mentioned in his earlier answer? Who defines “sensitive information”? Which minister will make the decision over what is sensitive or not sensitive? Will he lay those answers in the parliamentary library so that we can all see them in the transparent way that he mentioned?

Finally, when the former Deputy First Minister Jim Wallace introduced the FOI regime and legislation back in 2002, the Scottish National Party’s front-bench spokesman Michael Matheson said:

“The effectiveness of the bill will not merely be down to its provisions; a change to the culture of secrecy that exists ... is required.”—[Official Report, 24 April 2002; c 8216.]

If that is so, why have we needed today’s statement and this report?

The report was the response to a parliamentary motion just over a year ago. The Standards, Procedures and Public Appointments Committee felt that it was appropriate that the Scottish Information Commissioner carry out the inquiry. I gave the statement today to respond to those points.

The Government is taking on board the points that are made in the report. I would have thought that we should be fine with that. We are going further than any Government has ever gone in the coverage of freedom of information. I will soon introduce regulations to extend freedom of information to cover social landlords, which the previous Administration never got round to doing.

We are not just making efforts to improve how we deal with freedom of information requests, but, very significantly, we are making substantial efforts to increase the level of information that is released proactively. That is important, because proactive release means that the information is there before people have even requested it.

I would encourage anyone to look at the Scottish Government’s new website. Its functionality is very useful for people who are seeking to find information. One concern of the previous Scottish Information Commissioner was that, as we increase levels of proactive release, we might get to the point at which we have an information dump and it becomes difficult for people to access what is useful to them. I encourage people to look at the functionality of our new website, where I think that what they will see is an exemplar.

The minister mentioned that work is being done on improvements to guidance and training and that an improved tracking system is now being developed. Can he provide any timelines for those being finalised and in place?

Yes. The training is on-going and we will continue to work with the commissioner to make sure that the training that we provide across the Government is as appropriate as it should be. We have increased the staffing of the central FOI unit, which provides extra guidance and support across Government.

The new tracker system will, I think, be very important. It is always risky to give a definite date for when a new system will be rolled out, but we anticipate it starting in August. That is part of a range of digital improvements across the Scottish Government.

The report states:

“Journalists, together with MSPs and political researchers, are expressly made subject to a different process for clearance than other requester groups.”

Further on, it states:

“While I received reassurances throughout my interviews that journalists’ requests were dealt with in the same way as requests from any other person, this is clearly not the case.”

I will ask the same question that two MSPs have asked already—we have not had an answer. Why was it not the case? Why were journalists dealt with differently?

Government officials would have provided responses in line with the guidance that was in the public domain and had been for a number of years. Today, we have accepted the commissioner’s recommendations to change that guidance and provide clarity. I would hope that members would support that.

I know that it is a long time since the last Labour-Lib Dem Administration and that the memory is fading, but will the minister outline how the current Scottish Government’s performance on requests answered on time compares with that of the last full year of that previous Administration?

In the last full year of that previous Administration, the response rate was 61 per cent. In 2017, the Scottish Government responded to 83 per cent of requests on time. We need to put that into the context of the near threefold increase in the volume of requests. Looking into it further, this year we are responding to 93 per cent of requests on time, in spite of a further increase in requests. I again put on record my thanks to all the staff who have helped us to achieve that.

I am delighted to have the report, which is the result of a motion that I brought to the Parliament last year. My question is based on eight words in the report, in paragraph (iv) in recommendation 2, which states:

“Given the paucity of information in case files”.

Why is there no information in the case files? Is that weeded out or is it not put in? Is that a Government policy or is it just the way that it happens?

Clearly, in one of the recommendations, the commissioner has suggested that we need to look at how much information is kept in case files. That is one of the recommendations that we will accept.