Meeting date: Wednesday, June 21, 2017
Meeting of the Parliament 21 June 2017
Agenda: Motor Neurone Disease Global Awareness Day, Business Motion, Portfolio Question Time, Freedom of Information Requests, Agriculture, Business Motion, Parliamentary Bureau Motions, Prohibited Procedures on Protected Animals (Exemptions) (Scotland) Amendment Regulations 2017 [Draft], Point of Order, Decision Time, Stroke Care
- Motor Neurone Disease Global Awareness Day
- Business Motion
- Portfolio Question Time
- Freedom of Information Requests
- Business Motion
- Parliamentary Bureau Motions
- Prohibited Procedures on Protected Animals (Exemptions) (Scotland) Amendment Regulations 2017 [Draft]
- Point of Order
- Decision Time
- Stroke Care
Freedom of Information Requests
The next item of business is a debate on motion S5M-06126, in the name of Edward Mountain, on freedom of information requests.14:41
I am delighted to bring to the chamber this motion on freedom of information and at the outset I move the motion in my name.
I started campaigning to become an MSP in 2010, and one of my reasons for doing so was that, like many others in the chamber and across Scotland, I felt that politicians seemed remote, unapproachable and secretive. Countering those traits remains one of my key drivers, and that is what the debate is all about.
On Tuesday 13 June, there was a members’ business debate on freedom of information. In the lead-up to that debate, I did some research on the topic that I was to speak on, and I was shocked. When I spoke in the debate, I found that I was sharing a platform with Neil Findlay and Andy Wightman. Although I share little political ground with them, it became clear as the debate progressed that we have a lot in common when it comes to the transparency of government.
The critical freedom of information laws and procedures in Scotland are based on the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004, both of which were introduced to improve Government transparency and set the aim of having strong standards. However, we have heard from journalists across the political spectrum that they have serious concerns about the Scottish Government’s interpretation and implementation of the legislation.
I do not always believe what journalists write, but in this case there is no smoke without fire. We have heard about their concerns regarding freedom of information requests, and some of the issues that they raise include delays
“beyond the 20 working day deadline”,
emails requesting updates
“being routinely ignored ... officials delaying responses for so long that the initial requests only get answered under internal review”
“Scottish government officials taking control of requests to other government agencies without the consent of the applicant”.
I could go on.
Would the member like to comment on the article entitled “FOI failings at the heart of government”, which was published on the BBC’s website earlier this week? That report, which is about the United Kingdom Government, talks about descriptions of
“delays as ‘unacceptable’, ‘extremely unhelpful’, ‘extreme’, ‘protracted’, ‘considerable’, ‘notable’, ‘unreasonable’, ‘unsatisfactory’, ‘excessive’, ‘prolonged’ and ‘severe’.”
We in the Scottish Government have accepted that our intention must be to improve our performance. I see no line from the UK Government that accepts that it needs to improve its response.
I love taking such interventions, because they remind me of when I was about eight years old and I was in the playground. If I got criticised for doing something wrong, I ran to the teacher and said, “It wasn’t me, miss—it was them.” The Scottish Government needs to stop doing that, take responsibility and deal with the issues that it has.
In their open letter, the journalists explain that their experiences raise concerns about whether journalists’ freedom of information requests are being “treated and managed differently”. As members of the Parliament, we all know that, when we raise tricky questions, they are often met with smokescreens, mirrors and diffusion. Many find it tempting, as I have, to make FOI requests so wide ranging that there is no way to dissemble about the answers. Delays and withholding information are not acceptable. It is no surprise that former Scottish Information Commissioner Rosemary Agnew ordered ministers to improve their performance.
I know that Richard Lochhead, who I am glad to see in the chamber, agrees with that position on freedom of information. He is reported as having said that “dithering and delaying” are unacceptable, as are the months and months that it takes Governments to respond to freedom of information requests. He made that comment about the United Kingdom Government, but any comments about the UK Government must apply to the Scottish Government, too. Maybe that helps to answer the minister’s point.
During the debate, I am sure that we will hear many examples of how the Scottish National Party-led Scottish Government avoids scrutiny. There are meetings with no agendas and certainly no minutes, and people are hiding behind thin veils of commercial confidentiality. That points to a code of secrecy and a Government that is defending the indefensible and fuelling the lack of trust that the public have in politicians.
Only a week ago, we heard the Government rebut such allegations. Joe FitzPatrick, the Minister for Parliamentary Business, provided a long list of statistics. In his long and disjointed speech, which he did not have time to finish, he made assertions that paint only half the picture, according to my research.
Assertion 1 was that the number of freedom of information requests has spiked; assertion 2 was that the Scottish Government achieved a consistently better level of responses than the 61 per cent that was achieved in the last full year of the previous Administration; and assertion 3 was that the Scottish Government was better than the UK Government—there we go again.
I will respond to those assertions. There have been more FOl requests but, in 2016-17, the Scottish Government answered only 38 per cent of them in full whereas, in 2014-15, 46 per cent were answered in full, which is a clear drop. In 2016-17, 21 per cent of the answers were late.
Will the member take an intervention?
I am short of time, so unless I am—
I can give you half a minute extra.
Does the member think that there is a correlation between garbage parliamentary answers and the spike in FOI requests?
It is clear that the Government is truly good at spin, but it is not good at listening and telling the whole story. That spin was evident yesterday when, in response to the motion, the Government made it clear that it accepts the criticism that is being made but tried to mask its failings by announcing that it will go further by publishing online all responses to FOl requests.
The debate proves that we in the Conservatives are doing what we promised to do when we were elected: holding the Government to account. By the SNP’s admission, we need an independent inquiry and post-legislative scrutiny. I assure those who are listening to the debate that we will keep a beady eye on the Government to ensure that it changes how it deals with FOl requests, because the Government knows that it is wrong and that it needs to be more accountable. Let us be honest that, in a mature and stable democracy, what the Government is doing is frankly indefensible.
The debate will prove that the Government has been dealing with FOl requests disingenuously. It knows that it is wrong and it cannot hide that. We in the Conservative Party, the Parliament and the press will hold the Government to account. In the future, the Government must be more honest, transparent and accountable. I look forward to hearing the evidence from members and I hope that we might see some humility from the Government.
Please move the motion, Mr Mountain.
I am sorry; I thought that I moved it at the beginning of my speech.
I do not think that you did, but members are nodding, so I shall check the Official Report. It is not a problem if you move the motion twice.
I would never disagree with the Presiding Officer.
That the Parliament condemns the Scottish Government’s poor performance in responding to freedom of information requests; calls for an independent inquiry into the way that it deals with these, and agrees to undertake post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002.
I call Joe FitzPatrick to speak to and move amendment S5M-06126.1.14:50
I thank Mr Mountain for giving us the opportunity to discuss how we might improve openness and transparency.
First I want to address our performance. Twelve years on, the statutory right to request information from a public authority—and be given it—has been embedded in our culture. People understand their rights and that has led to a steady increase in requests. FOI requests are also becoming more complex, with the average FOI response requiring seven hours of staff time.
Although there is some surprise that the Government is accepting the Conservative motion, anyone who has been listening to the on-going debate will know that we accept that our recent performance has not been good enough and we are working to improve it. It is a pity that the UK Government, which has more civil service resources in Scotland than the Scottish Government, does not accept that it needs to improve its performance.
The work to improve our performance is being undertaken in tandem with assessments of our performance by the Office of the Information Commissioner—in effect, that is an on-going independent inquiry. The Scottish Information Commissioner is selected by a cross-party panel. The commissioner is independent of the Government and has always performed their function without fear or favour. A new commissioner will be appointed by Parliament next week and whoever is selected will no doubt want to continue that assessment to ensure that we are taking the correct steps to meet the standards expected of us.
A week ago, the minister claimed that he wanted to highlight the Government’s achievements on transparency, saying that the Government operated to the highest standards and was involved in best practice. Today, he will vote for an amended motion that condemns his Government and, by dint of that, his own performance. Is that an outbreak of humility or is it just a shambles?
If Mr Findlay had bothered to listen to anything that I said last week, he would have heard me making the point. We are clear that our performance is not what it should be and I was clear about that last week. We are in the process of trying to improve.
Before I cover the actions that we are taking to improve our performance, I will address some of the concerns that were set out recently by the media and members of the Scottish Parliament. We do not get everything right and I recognise that, at times, people have had reason to be unhappy with our performance.
First, as I have already said, we accept our performance is not what it should be and we are working to improve it. Secondly, it is important to recognise that the vast majority of requests are answered on time. When a response is late, officials will send a holding reply and where possible, that will give an indication of when to expect a response. It is clearly unacceptable when that does not happen and that is an area we are working to improve.
It is not in the interests of the Scottish Government to block or refuse requests for tenuous reasons or to miss a deadline—as has been suggested. Information can be withheld only for valid reasons. The ultimate arbiter of that test is not the Scottish Government but the Scottish Information Commissioner, whose decision is final.
Public bodies handle their own individual requests—any other practice would be in breach of the law.
I am grateful to the minister for giving way on the point about responding to the concerns expressed in the journalists’ letter earlier this month. One of those concerns is that requests are being screened for potential political damage by special advisers. Is that true?
No. Requests are all prepared by Scottish Government officials. Special advisers have a role in assessing draft responses for accuracy. [Laughter.]
As discussed in Parliament last week, I recognise the interest of the media in the operation of the Freedom of Information (Scotland) Act 2002. As well as responding to the recent letter from members of the media, I will be meeting the National Union of Journalists to discuss those and other points and how we can use our improvement plan to build confidence in the FOI process.
Turning to the action that we are taking, we need to ensure that we have appropriate resources in place to comply with our obligations. We are also taking steps to raise the profile of FOI through improved local management and staff training, and have set up an improvement project to examine different approaches to case handling.
We need to acknowledge that the ever-increasing expectation is that information will be readily available without having to ask for it, and at the click of a mouse. Proactive release is one way that we have chosen to feed that hunger for information. Current publications include ministerial engagements, travel and expenses information and detailed information on Scottish Government spending, and we continue to look for opportunities for proactive publication.
In tandem with improving our FOI performance and as part of our continuing development of the Scottish Government website, I am taking steps to ensure that all information released in response to information requests is also published online from 3 July. Publishing information when it is released will ensure that it is available to all without further requests and will add to transparency. That information will be available on the publications section of the Government’s website at beta.gov.scot.
That move to make information readily accessible is in line with the principles of open government. Our open government national action plan sets out several demanding commitments, which include increased financial transparency to empower communities to influence budget priorities and increased citizen participation in local government. It is important that our legislation remains fit for purpose, and we have regularly revised our FOI framework to ensure that it remains up to date.
The minister is concluding.
The Freedom of Information (Amendment) Scotland Act 2013 improved the legislation by strengthening the ability to prosecute for an offence under the Freedom of Information (Scotland) Act 2002 and paved the way for the lifespans of key exemptions to be reduced from 30 to 15 years. We have also brought within scope numerous organisations that deliver public services, and members will be aware of our consultation on extending coverage to registered social landlords, which I expect to respond to in the autumn.
On scrutiny, it is not for Government to tell committees what scrutiny they may wish to do, but if any committee decides that it wants to have scrutiny in this area, the information commissioner’s outgoing report made points that might be useful.
This Government believes in open government. I move amendment S5M-06126.1, to insert at end:
“, and welcomes commitments by the Scottish Government to adopt a policy of pro-actively publishing all material released under FOI to ensure that it is as widely available as possible.”14:57
I welcome the opportunity to speak in today’s debate, following the motion that was raised for debate last week by Neil Findlay, who highlighted some of the many concerns surrounding the Freedom of Information (Scotland) Act 2002 and the performance of this SNP Government. I reiterate the concern raised in Mr Findlay’s motion that the application of the act by ministers and officials is questionable at best and, at worst, implies a culture and practice of secrecy and cover-up, including through routinely avoiding sharing information, often by not recording or taking minutes of meetings that are attended by ministers or senior civil servants.
Speaking from experience, responses to freedom of information requests from the Scottish Government have been relatively poor—I am sure that many members across this chamber will agree. Labour supports the calls for an independent inquiry into the way that the Government deals with FOI requests, with the potential to undertake post-legislative scrutiny of the 2002 act.
In the interests of open government and, in particular, full transparency of government, I hope the Government can recognise today that it can do more when dealing with such requests under the act. The Government amendment in the name of Joe Fitzpatrick, which accepts the motion recognising that the Scottish Government has performed poorly in this area, is welcome, as is the Government’s commitment to publish all material released under FOI. However, I say to Mr Fitzpatrick that he is stretching the imagination to then claim that that is a boost to open government. He misses the point, and most fair-minded people will see through that for what it is.
There are many issues that must be addressed before we can seriously claim any boost to open government. As Neil Findlay pointed out in the chamber last week, just two weeks ago 23 prominent journalists signed an open letter to this Parliament in which they raised serious concerns about freedom of information requests and the way they are being mishandled by the SNP Government. When outlining the details of the complaints from the 23 journalists, Mr Findlay called for a proper investigation into the issues raised. That is why Labour will support the motion today.
As well as considering how FOI requests are dealt with, the inquiry must also examine the level of information that is available. How can it be that Government ministers meet with quango chiefs, business chiefs and lobbyists to discuss issues that have major implications for the people of Scotland, yet no record is kept of those meetings? That is not right, and this Parliament must make it clear that we expect openness and transparency in government.
It has also been suggested that Scottish Government officials and special advisers are delaying answers or simply rejecting questions. The whole point of the freedom of information legislation should surely be to allow more openness and further transparency. It is not up to Government ministers, officials or special advisers to decide whether to disclose something, based on whether doing so would be in the Government’s interests.
We also cannot ignore the fact that, at times, the responses to FOI requests seem more like they are dodging the questions than providing the answers. At its heart, freedom of information is about accountability, and this Government must recognise that, across this chamber and outwith this place, there is a cry for further accountability, openness and transparency.
By committing to an independent inquiry, the Government will show that it is committed to reviewing some of the damage it has done to the open and transparent image it says it is committed to.
Most importantly, there now needs to be a change in the culture of how FOI requests are dealt with. The Government and this Parliament can show that we want openness and transparency in all that we do by supporting the motion today and by supporting the SNP Government’s amendment, which acknowledges its weaknesses and commits itself to addressing them.15:02
Today marks the third time in as many weeks that we are discussing the Scottish Government’s issue with transparency. We bring to the chamber today not just our concerns as Opposition parties but the concerns of the public, journalists and many individuals and third parties.
I am used to ministers engaging in the dark political art of avoiding answering questions on important issues such as the Scottish economy, health waiting times, education standards or digital skills deficiencies, or concerns over named person legislation and Police Scotland—I could go on. In fact, anyone who was in the chamber for portfolio questions today had to sit through a painful 40 minutes of apologies and excuses—coulda, shoulda, woulda—from the front bench.
The answers that ministers give generally follow a pattern—that of deflection—and usually involve the words “Tories”, “UK Government” and “Westminster”. In fact, we have heard UK Government bingo played already today. However, although the Government can brush us off in the Parliament, people outwith the chamber have had enough. People have an absolute right to ask robust questions of their Government—and to get robust answers.
There is no anti-Government conspiracy here today. How do I know that? Because our criticisms are not made in isolation. Yesterday, I was contacted by a constituent who regularly lodges FOI requests with the Scottish Government on a wide range of topics, from radiotherapy staff numbers to safety in sport. He forwarded me the responses that he received and none of them even remotely resembles an adequate response.
We are having this debate today because something has gone deeply wrong with the SNP’s understanding of transparency. In today’s The Scotsman, the Government responded to my criticisms by saying:
“Scotland has the most open and far-reaching freedom of information laws in the UK.”
Perhaps, but having far-reaching laws is not the same as adhering to those laws. That is simply no defence.
The Government went on to say:
“We take our responsibility for FOI seriously and in the large majority of cases we respond on time and in full.”
If that is the case, why are more than 20 per cent of requests—more than double the national average for public bodies—responded to late? If that is the case, why are requests from journalists being delayed beyond 20 days with no justification? If that is the case, why are we finding out that there was not a single minuted meeting between the minister in charge of the Forth replacement crossing project and the main contractor in the crucial six months from October to March? If it is the case that Scottish ministers take FOI seriously, why are they not sending written updates to the Foreign Office after official overseas visits, as per the Scottish ministerial code?
Did the member say “Westminster”?
Is that an intervention? I shall carry on. [Interruption.] Did I hear the words “UK Government” or “Westminster”? I am sure that that will be the excuse, as always. [Interruption.]
It is not just me asking those questions. Rosemary Agnew, the former Scottish Information Commissioner, branded the Government’s performance as “totally unacceptable”. We already know that earlier this month journalists from across the political spectrum, not just from certain areas, signed a joint letter about delayed responses, poor responses and, in some cases, no response at all.
What we are asking for today is nothing out of the ordinary. I want other parties to back our motion not to make a political point, but to send a really important and clear message. The Scottish Government, its ministers, directorates, public bodies and the whole civil service must be open to interrogation; more important, their responses should be abundant, forthcoming and accurate. Having listened to the minister’s spin today, I am afraid that we have a long way to go.15:06
I start by welcoming the Government’s announcement, which takes the public accessibility and availability of information relating to FOI requests—information that is in official hands—to new heights.
I want to talk about the Tories—the party that lodged today’s motion. They have not always been the most enthusiastic supporters of FOI. In the stage 1 debate on the Freedom of Information (Scotland) Bill on 17 January 2002, Lord James Douglas-Hamilton described the bill as
“a costly experiment to tinker with what he”—
the then Minister for Justice—
“calls a culture of secrecy.”
Lord James went on to say that
“The Executive seems to be intent on forcing through unnecessary measures.”
David McLetchie reinforced the Tory antipathy to the very concept of an FOI bill by saying:
“If the bill has been shoved down the list of priorities, the people of Scotland, aside from a few political anoraks, will not shed many tears.”
I see that Murdo Fraser is in the chamber. He said that the bill
“does us no credit whatever.”
My own contribution to the debate was to say that
“A desire to keep information is always an expression of someone’s self-interest”.—[Official Report, 17 January 2002; c 5467, 5469, 5480, 5494, 5499.]
I am strongly in favour of freedom of information, to the extent that when officials in the Labour and Liberal Executive prepared guidance to civil servants on how to implement the bill, I was delighted to discover, as the result of an FOI request, that they quoted from my speeches.
In government, and subsequently, I discovered that operation of the 2002 act places a genuine and proper burden on our public servants, whether they are employed or elected.
There have been many ministers in this Administration and in previous ones, and as one of them, I found myself responding to a significant number of FOI requests.
Will the member take an intervention?
I will, if it is brief.
It will be brief. Does the member accept that people are being driven to use FOI because of the very poor quality of written answers that we get in this Parliament, with a resultant lack of transparency? If the written answers were right, the FOI burden would not be quite so bad.
On many occasions we found that although the information was available, it was dispersed around so many different areas that it took a substantial effort to retrieve, organise and present it. It was there for the benefit of the administrator, not necessarily for the inquirer.
I ceased to be a minister on 6 September 2012—nearly five years ago. However, for years after that I was still being asked to confirm the contents of responses to FOI requests because they touched on my time as a minister. Under the ministerial code, I am not permitted to retain any ministerial papers. It is fair to say, “Mea culpa”, and I accept that a lot of the delays are down to me as a back bencher not always responding quickly enough to civil servants looking for information. That process is not yet finished, by the way. I have been summoned to appear in front of the Edinburgh trams inquiry, so I will have to come down for a full day to be briefed on what I did between 10 and seven years ago. The reasons for delays are diverse.
Sir Humphrey Appleby in “Yes, Minister” reminded us that the Official Secrets Act is not there to protect secrets; it is there to protect officials.
FOI is an important part of civic Scotland’s weaponry to ensure that citizens can hold officials to account.
You must close, Mr Stevenson.
I welcome the Tories’ new-found support for FOI. Let us hope that, across all the Administrations in which they might be involved, they properly implement the required principles and practices.
Time for later speakers will be cut if members do not stick to four minutes at the very most.15:11
There are many areas of Government policy where the rhetoric fails to come anywhere near reality, and nowhere more than in the area of transparency. That was self-evident to anyone who listened to last week’s members’ business debate, where we saw normally obedient SNP back benchers run for the hills rather than defend the Government’s appalling record on secrecy and evasion. That debate came about after 23 experienced journalists representing media outlets with editorial lines that span the political spectrum wrote to this Parliament to highlight the abuse and mishandling of freedom of information requests by the Government.
I note the member’s points. It sounds as though he is taking the same line as he took last week. Does he accept that, last week and earlier today, I accepted that our performance is not good enough and explained some of the actions that we are taking to improve it?
It was unprecedented for journalists to highlight that requests were being delayed, that emails asking for an update were being routinely ignored, that there was gaming of the system to stifle the internal review process, that officials were taking control of requests to other agencies, and that requests were being blocked for tenuous reasons or—as confirmed by the minister today—screened by special advisers. All those actions were designed to block or limit the release of information.
Here are more examples from between September and October 2016. Keith Brown met Ineos at Grangemouth, and I asked for a copy of the ministerial briefing—it was returned heavily redacted. Nicola Sturgeon attended a Business for Scotland dinner, and I requested notes, the guest list and any speech delivered by the First Minister—the Scottish Government said that it had no information. Shirley-Anne Somerville met Paul Little of the City of Glasgow College—there were no minutes. Keith Brown met the SME China forum—there were no minutes. Keith Brown met Philippa Whitford MP to discuss Prestwick airport—the minutes were heavily redacted. Keith Brown met Sir Hugh Aitken of the Confederation of British Industry—there were no minutes. Keith Brown met the Global Scots and I asked for a copy of any minute or note—no information was available. Nicola Sturgeon met PetroChina to discuss Grangemouth—there were no minutes and the briefing was redacted to the point of meaninglessness. John Swinney met Sir Kevan Collins, head of the Educational Endowment Foundation—exemptions were applied to the pre-meeting briefing to prevent its disclosure, and then it was claimed that it was an informal meeting and that no minutes or notes were held. What a farce! Those events involve just a few ministers over a very short period. If we scaled that up over several months or a year, it would show that such practices have been deployed on an industrial scale.
Just three months later, the Minister for Parliamentary Business signed the Scottish Government’s open government action plan at an open government partnership conference in Paris. Mr FitzPatrick, without the slightest hint of self-awareness, spoke at an event entitled “Leave no trace?—How to combat ‘off the record’ Government.” I have made an FOI request for Mr FitzPatrick’s speech and I cannot wait to read it—although maybe the Government will block it, right enough. There was the minister who is accountable to this Parliament for the repeated failure to keep and release information—the minister who has seen 23 of our foremost journalists write an open letter of complaint about a significant area for which he has responsibility—lecturing other nations about open government.
At least today, in leaving the motion intact, he now condemns his own failings—humility not normally being associated with this Government. This is a minister who could not get a single back bencher to support or defend him last week. He stood there last week almost naked; now, the final fig leaf has fallen away.
You have left me stuck for words, Mr Findlay.15:15
It is fair to say that the debate last week confirmed that the issues that were raised by the journalists are valid and urgent. As I am sure all members agree, journalists and citizens need a robust FOI regime in order to hold power to account, whether it be in relation to matters such as recruitment in the national health service, conversations between Government ministers and representatives of authoritarian regimes such as China, or Donald Trump’s status as a global Scot.
I am particularly grateful that the Conservatives have secured the debate today because it provides me with an opportunity to remind members of what FOI can tell us about some of the Conservatives. Mr Henry Angest—a man whom I mentioned last week—is chairman and chief executive of Arbuthnot Banking Group, a former master of the Worshipful Company of International Bankers and a former Tory party treasurer who has been knighted for his efforts. He provided almost £7 million to the Tory 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 Tory party in Scotland. I am sure that Murdo Fraser will know Mr Angest, because he helped to fund Mr Fraser’s doomed Tory party leadership bid. He also donated funds to Perth College for research, and we have learned though FOI that he was angling for an honorary degree as a reward. Because Perth College retained copyright in that information release, however, and refused to consent to my publishing the information, I am legally compromised in my ability to share it with others. That is one reason why the FOI regime warrants a fresh look.
Conservative members will also, I am sure, welcome the European Union’s transparency regime on information that is held by the Scottish Government in relation to distribution of agricultural subsidies, which allow us to know that a company called Peter Chapman Ltd received £104,014 in farm payments in 2012, £114,800 in 2013 and £101,669 in 2015. Delfur Farms, in which the mover of the motion is a partner, received £131,960 in 2015.
That is all very interesting, and I think it is relevant. It is vital and useful information that allows citizens to understand how public money is being spent, how public authorities are discharging their duties on our behalf and how much influence on public affairs is exerted by private interests.
Given the information that he has just disclosed to the chamber, would Mr Wightman welcome a double-jobbing bill being brought to Parliament?
I look forward with interest to a double-jobbing bill and its contents. I will let Neil Findlay know my views on it when it is introduced.
Last week, the minister acknowledged
“that we are not where we want to be.”—[Official Report, 13 June 2017; c 82.]
I think that most members will concur with that view. I therefore wish to commend ministers for not having sought to delete the motion and for instead having recognised the need to address failings in their own performance, as well as the need for post-legislative scrutiny of the 2002 act. That welcome attitude sends an important signal beyond the politics here: this is not a party-political matter, and it is not even just something for the Scottish Government, but is fundamental to a democratic society. I respect the Scottish ministers for holding their hands up on this occasion—notwithstanding the fact that substantial concerns remain, some of which have been highlighted by Alex Rowley.
I also commend ministers for their decision to publish full logs of information releases. That was a concern that Monica Lennon and I raised last week, so the Government’s response is timeous and welcome.
I wish to raise two matters in conclusion. First, in their letter, the journalists raised many serious issues, none of which has been fundamentally addressed by the minister today. I think that the minister confirmed in his opening remarks that he would write to journalists to address those specific concerns. If he could confirm that in his closing speech, it will be very welcome.
Secondly, on the proposed disclosure log, there are some concerns about the release of sensitive information simultaneously to requesters including journalists and to the public. I ask ministers to reflect and to consider whether to build in a time lag of a day or two to accommodate such cases. I merely make that suggestion.15:19
I am with Andy Wightman in acknowledging how the Minister for Parliamentary Business, Joe FitzPatrick, has come to the chamber today accepting Edward Mountain’s motion and seeking to amend it in a fairly mild way instead of trying to eradicate it. However, I have to say to Mr Wightman that that is more because Mr FitzPatrick knows that he would lose the vote if he were to seek the motion’s eradication.
I want to concentrate briefly on the motion’s call for an independent inquiry. Mr FitzPatrick was right to say that that is for committees and Parliament to decide in the fullness of time, but the motion is also right to call for that inquiry. Neil Findlay made the same point in the members’ business debate that he initiated last week. As a result, I look to the minister in his winding-up speech not only to accept—as he does implicitly—the need for an independent inquiry, but to set out how that inquiry will be put in place. After all, it must happen and, as Andy Wightman rightly pointed out, the best place for it to start is the letter to which 23 journalists put their names earlier this month. Who better to chair it than, say, Paul Hutcheon or Tom Gordon? Other suggestions will, I am sure, be gratefully received by the minister.
As I have said, I hope that when he winds up today the minister will say that he accepts the need for an inquiry, that there is a process under way to initiate it, that it will be independent and that the chairperson, whomever that might be, will be very independent indeed.
I want to make two more points that I think illustrate the sort of issue that needs to be tackled in any freedom of information review. The first relates to James McEnaney’s work on the schools governance review that the Government announced just the other day. Last night, he set out on social media the questions that he, as a journalist, had submitted to the Government about the review, asking about projected costs, additional funding for support and for some other information on additional support needs in the education system. It is entirely fair for a journalist to ask such questions; he also asked a lot of other questions, as journalists are meant to do, if they are to do their job.
However, instead of answering those questions, the Government last night turned it all into a freedom of information inquiry, which will delay any answers to Mr McEnaney’s questions into the summer recess. That raises the question why the Government turned it into a freedom of information issue instead of simply answering the questions.
As part of the long email trail and Twitter exchange on the matter, the journalist made it very clear that he went back to the Government official who is responsible and offered to take half of what he asked out and to reduce the questions if they were too detailed. In other words, as a journalist he bent over backwards to acknowledge that some of the questions could not be answered quickly, but would take some time.
But, no—the Scottish Government made it all a freedom of information issue and thus ensured that the questions would not be answered for at least 20 days. It is no wonder that some of us are a bit sceptical about the handling of freedom of information requests in Scotland today.
My second illustration of the sort of issue that needs to be tackled in the inquiry relates to the point that is made in the journalists’ letter about
“Scottish government officials taking control of requests to other government agencies without the consent of the applicant”.
A former constituent of mine who is a former fire officer has been looking into maintenance queries across the Scottish Fire and Rescue Service, particularly in the Highlands and Islands. He has told me that he was refused information under freedom of information legislation because of cost. However, it turns out—he knows about this, because he used to work in the fire service—that the information in question is all on a single database and could have been produced at the push of a button.
What is going on? The situation needs to change. An independent inquiry is the way to make sure that it does.15:23
There is a joke that one can tell how far from Government a party is by how loudly it calls for robust freedom of information legislation. The point is, of course, that when they get into Government, parties of all colours like to keep some things secret and when they are in Opposition, all parties want maximum transparency and openness.
In his memoirs, Tony Blair said:
“Freedom of Information. Three harmless words. I look at those words as I write them, and feel like shaking my head till it drops off my shoulders. ... I used to say—more than a little unfairly—to any civil servant who would listen: Where was Sir Humphrey when I needed him? We had legislated in the first throes of power. How could you, knowing what you know have allowed us to do such a thing so utterly undermining of sensible government?”
That harks back to 1997, and those memoirs came out in 2010. We are now in 2017. This is Scotland, not the United Kingdom, and we should be relatively proud of how far we in this country have travelled with devolution with regard to openness, transparency and the involvement of citizens in public life—all of which are hallmarks of a healthy democracy.
The outgoing Scottish Information Commissioner, Rosemary Agnew, said in her farewell message:
“I believe we generally do well in Scotland. We are not perfect by any means, but we have a strong regime that enables access to a lot of information. The challenge for all of us is how we develop FOI from such a strong starting point in a rapidly changing world.”
The report that she issued shortly before departing office said that we can tell the respect that Scotland has from what other countries are saying. It states:
“This respect is reflected in the frequency with which we are approached to: host or visit countries putting in place FOI for the first time, and speak at both national and international events about FOI in Scotland.”
She said that
“Globally we are seeing the contribution that access to information approaches are having on supporting transparency, combatting corruption, enabling citizen participation and developing more democratic decision making.”
She also said that there are big issues out there at the moment—that is why I support our having today’s debate—including
“privacy vs transparency, accuracy and truthfulness in a post-truth environment, trust and confidence.”
Does Richard Lochhead also acknowledge that Rosemary Agnew said in her end-of-term report that public authorities now put greater emphasis on what not to disclose than they put on what ought to be released?
I said that I welcome such debates. I welcome today’s debate in Parliament of that very important issue for our democracy in this country.
Rosemary Agnew also pointed out that 91 per cent of Scottish public bodies publish minutes of key meetings, agendas or strategic plans online, but that only 54 per cent provide all three. Those documents were hard to find on the 38 per cent of the websites that hold them. Only 41 per cent of public organisations put information on procurement and tendered contracts online. Reports in the media have also pointed that out.
There are challenges out there, and Parliament and the Government have to address them. That is why I warmly welcome the minister’s comments.
Rosemary Agnew went on to say:
“We now know from the data collected since 2013 that request volumes are increasing year on year. This comes with an increasing cost that Scottish public authorities must meet if they are to be statutorily compliant.”
I was a cabinet secretary for nine years, and I always had the attitude that we should put the maximum amount of information into the public domain when we received FOI requests. I was also absolutely staggered by the resources that were required in Government to answer FOI requests and the time that key civil servants had to spend answering them when there were other Government priorities that MSPs in all the parties were demanding that the Government deal with. The civil service and the Scottish Government face those real-life pressures, so we have to face that reality.
I was pleased that the previous Scottish Information Commissioner recognised the pressures and said that the current system is unsustainable and that we have to look at different ways of getting information into the public domain. I welcome the debate and hope that we can have other debates about those new ways of getting information into the public domain in order to take pressure off civil servants.15:27
This is an interesting debate to speak in. One would think that legitimate scrutiny of the Government by the Parliament, the press and the general public would be an essential prerequisite in any open and transparent democracy. After taking office, Nicola Sturgeon stated that she wanted
“An outward looking Government which is more open and accessible to Scotland’s people than ever before”.
From the evidence that we have heard and are hearing, those claims are a little bit wide of the mark.
In the short time that I have, I thought that I would add my experience of making FOI requests and submitting written questions to the Government.
Early on in the session, in speaking in a debate on farming on one of the many Brexit Tuesdays, I had the temerity to suggest that we should take the opportunity to look at the Scottish market for Scottish produce. Fergus Ewing stood, puffed out his chest and boomed that perhaps Mr Whittle should look at the Scotland Excel contract, in which the food that councils access is predominantly procured from Scotland. Suitably chastised, I decided to take up Mr Ewing’s suggestion but, once I was in the loop of asking questions of the Government and getting answers that avoided answering the questions—despite its being obvious what was being asked in the question—it began to feel very much like groundhog day. Finding a different way to ask the same question and trying to elicit a response that is remotely close to the subject of the question is like a war of attrition. After six months or so, it became obvious why the question was being avoided. I presume that Mr Ewing, in throwing out the challenge at me, desperately hoped that I would not take him up on it. In fact, the Excel public procurement contract does not reflect the rosy picture that the cabinet secretary painted of locally procured high-quality produce.
However, after highlighting the oversight of the cabinet secretary, his colleague John Swinney instigated an investigation into the nutritional value of food in schools. I thought that that was fantastic. I took the opportunity to write to the Cabinet Secretary for Health and Sport to ask whether she would follow suit with an investigation into the quality of food that is served in hospitals, and whether she would commit to looking at procuring locally from farmers. The answer that I received was that she was satisfied with the quality of food in our hospitals and that procuring local produce was subject to European procurement law, which suggests a hope that neither I nor my colleagues understand European procurement law. However, I do understand it, so I know that that is a ridiculous answer.
Additionally, please correct me if my geography is awry, but Thailand is not in Europe and nor are India, South America, New Zealand and the far east, yet a fair chunk of the food imports for the Excel contract comes from those places. The issue is not just about an avoidance of transparency and scrutiny; it is also about not taking the time to answer questions with the degree of respect becoming of a Government.
The most recent question that I asked regarded the value of the public procurement of information technology projects in the past 10 years and what percentage of that was spent with Scottish companies. The very helpful answer that I received from Derek Mackay stated:
“This information is not held centrally.”—[Written Answers, 13 June 2017; S5W-09545.]
Apparently, the finance secretary does not know how much public money is spent on the procurement of public IT projects or how much of that public money is invested in Scottish companies. Really? Does he not know, or does he not want to say? I will get on the roundabout again and ask the same question in a different way.
It is not a game of hide the facts and say as little as possible. We are talking about proper public scrutiny of our Government. The members of this Parliament are here at the behest of the Scottish public and we are therefore accountable to the Scottish public. If a question is asked of the Scottish Government, a member has a categorical right to expect that it will be answered openly and honestly—warts and all. That ensures that the Government can be fully held to account for the actions that it takes on behalf of those whom the Parliament serves. That is not the current situation, so the status quo cannot continue.15:31
I declare an interest as a member of the National Union of Journalists.
I listened to the members’ business debate last week and I am disappointed that the Tories have chosen to use precious time in the chamber to reiterate some of the arguments that were made by members and answered by the Government. This week, the Brexit negotiations have started, with absolutely no openness or transparency from the Westminster Government about how that will go. This week, the Tories have also elevated someone who was rejected by the voters to the House of Lords to take up a ministerial position in the Scotland Office. I fail to see how openness, transparency and democracy are at the heart of those decisions.
I will put the debate in context. In 2016, the Scottish Government was designated as a global leading light in the campaign for open and accessible government and was one of the pioneer members of the Open Government Partnership’s inaugural international subnational government programme. This Government has the most advanced freedom of information laws in the UK. The Scottish Information Commissioner said:
“since Scotland introduced the Freedom of Information (Scotland) Act 2002, it has put itself ahead of the international field.”
That is the context in which we discuss the issues.
Last week, I heard the Government admit that it is not performing as well as it could. I also heard the Government commit to working with those who had raised concerns, including the journalists. I am sure that the cabinet secretary said that he had written to Paul Holleran at the National Union of Journalists, offering to work with him and other journalists about their concerns in this area.
The Scottish Government is already working with the Information Commissioner to improve on that area of concern. I hear the calls for an inquiry, but it is a legal matter. The commissioner has a very powerful job and could have taken legal action against the Government. However, she chose not to do so, as the Government worked with her to improve the situation, and I am sure that it will continue to work with the new Information Commissioner on appointment. The Government has conceded that things could be better and it is working to improve it, so I fail to see why other members in the chamber cannot recognise the Government’s commitments.
The outgoing commissioner put into the public domain her document, “Proactive Publication: time for rethink?”, in which she examines where we are with freedom of information in the UK. One of the things that she says in her report is that
“It is doubtful that FOI in its current form is sustainable. We now know from the data collected since 2013 that request volumes are increasing year-on-year. This comes with an increasing cost that Scottish public authorities must meet if they are to be statutorily compliant.”
She argues that, although proactive publication is important, it will not in itself deliver change.
Proactive publication is being championed by the Scottish Government. It is working to ensure that freedom of information requests are no longer required, because the information is in the public domain. That approach is changing the way in which things are done and it will result in progress.
Although I always welcome the opportunity to debate such matters, I think that today’s debate has been used as a fig leaf by the Tories to deflect from the utter shambles at Westminster.
We move to the closing speeches. I call Pauline McNeill, to be followed by Derek Mackay.15:36
I for one am quite happy to use the Scottish Parliament’s precious time to discuss an issue that is fundamental not just to journalists, but to ordinary people who want to challenge secrecy and power in our society. I am sorry to say that, although Clare Adamson has made many excellent speeches in Parliament, that was not one of them. If the SNP does not recognise that people want their Opposition politicians to challenge the Government of the day on its failings, that is quite sad.
The Government—rightly—has accepted a rap over the knuckles for its poor performance, and we must give it some credit for that, but I hope that the minister will accept that it is more than a case of poor performance. We are talking about the Government’s handling of the Freedom of Information (Scotland) Act 2002. The charge is one of failing to operate transparently and withholding information unnecessarily. I hope that the Government accepts that that is a much wider and more serious charge than one of poor performance.
I thought that Tavish Scott would do this, but I put on record the fact that, to his credit, Jim Wallace was the champion of this right-to-know legislation. The Labour-Liberal Democrat coalition Government introduced the Freedom of Information (Scotland) Bill, which sought to give any citizen the right to ask for information that was held by the Government. It came about as a result of a growing dissatisfaction with the secrecy that surrounded Government policy development and decision making. Freedom of information is an integral part of the human rights legislation, and it is recognised by article 59 of the United Nations charter.
Notwithstanding some of the excellent points that Richard Lochhead made, there has never been a more important time to embrace the idea that the maximum possible public disclosure of information by public bodies is a principle that we should all be striving to meet. The Westminster expenses scandal of 2010, which was at the centre of early FOI requests, led to the lowest levels of public confidence in politicians that we have seen. We all have a responsibility to open up government.
Who do we compare ourselves with? In response to an intervention by my colleague Neil Findlay, Joe FitzPatrick used the defence that we were doing better than the rest of the UK. I do not want us to compare what is happening here with what is happening in the rest of the UK. I would prefer to compare Scotland’s record with that of the 100 countries that have excellent freedom of information records. In a sense, it does not really matter if Scotland’s performance on FOI was better than that of the UK. The legislation is not worth the paper that it is written on if the Government of the day sets out to undermine it through delay.
The process of lobbying Government is fundamental to the Labour Party. The lobbying industry is a multimillion pound industry. The powerful people who sit with ministers have the ear of those ministers. I am not condemning that, but it has an impact on the situations that colleagues have talked about, in which journalists have tried to get to the bottom of things. I do not expect every meeting to be minuted in detail, but I expect a minute to be available—certainly if the meeting included a lobbying organisation that has money and power behind it.
The minister said that he is supporting the motion. For clarification, will he say whether that means that the Government supports an independent review of the Freedom of Information (Scotland) Act 2002?
I apologise for causing confusion earlier: Joe FitzPatrick will make the closing speech for the Government.15:40
I am not sure what to make of members’ reaction to the picture that Neil Findlay painted of me standing naked in the chamber. I will try to work it out later.
In my opening speech, I acknowledged that the Scottish Government’s FOI performance is not good enough, and I outlined measures that we are taking to improve our performance. If members listened to what I was saying, they will understand that the issue is wider than just timeliness; we genuinely believe in freedom of information and we want to improve our performance and people’s experience. That is why I am meeting the NUJ to try to understand its concerns and consider how we can improve.
Will the minister take an intervention?
I am sorry. I have a lot to cover.
I really believe that our proposal to publish FOI responses along with information that is made available in response to FOI requests represents a significant step forward and demonstrates this Government’s commitment to openness.
Members made a number of points, and there were a few helpful speeches. I want to respond to the members whom I thought were not just here to have a go at the Government.
Will the minister take an intervention?
I will try to respond to the points that were made in the debate, thank you.
Tavish Scott talked about a request being turned into a formal request. That happens because the legislation requires us to treat any written request for information as an FOI request. We have no option in that regard. That might be the sort of thing that I can discuss with the NUJ, because I can understand the exasperation—
Excuse me, Mr FitzPatrick. Will you make sure that you are speaking into your microphone?
I am sorry, Presiding Officer.
Will the minister take an intervention?
Mr Findlay ignored my intervention entirely. I will focus on other members who made remarks in the debate.
Mr Scott mentioned concern about the Scottish Government taking over requests to other bodies, which the journalists raised in their letter. As I said, that is just not the case—it would be against the law to do that. Public bodies handle their own requests. However, the Scottish Government and its agencies—incidentally, that does not include the Scottish Fire and Rescue Service—are regarded as one public authority for the purposes of FOISA, so that might be where some misunderstanding has arisen.
Will the minister give way?
As I said, I want to try to get through some of the substantive points that members made.
Tavish Scott, Alex Rowley and Andy Wightman talked about an independent inquiry. As Clare Adamson said, the Scottish Information Commissioner is the person who is legally obliged to be in charge of FOI. The commissioner has an important role and is independently appointed by this Parliament. The commissioner has started to look at our processes, to make sure that we get things right, and I am sure that the new commissioner will continue with that work. I will be happy to engage with the new commissioner when they have been appointed, to discuss what further action should be taken to make our FOI regime more transparent.
Andy Wightman referred to the point about data logs that he and Monica Lennon made in last week’s debate. Contrary to some of the conspiracy theories that are roaming around on Twitter, it was very much the points that he and Monica Lennon made last week that persuaded us of the merit of publishing all FOI releases on our website. I think that that is the correct thing to do. I take on board Andy Wightman’s point about timeliness in doing that; that is something that we can look at.
Stewart Stevenson gave—as he always does—the historical context for today’s debate. It was helpful to remind us that it was not all that long ago that the 2002 act came into effect and that there are still members of this Parliament who were very much part of that. I acknowledge the role that Mr Wallace had in bringing forward that legislation. That might have been a challenging thing to do; I know that Tony Blair, after bringing forward similar legislation in the UK, said that his biggest regret was introducing freedom of information legislation.
I hope that colleagues realise that this Government takes FOI and open government seriously. Our culture is one of openness across Scotland. Our open data strategy sets out our high-level guiding principles in support of making data open. We will continue to look at how we can improve our performance and improve access to information going forward.15:45
This has been a good debate but one that we brought with a collective heavy heart. That it was felt necessary to bring this motion to Parliament is testament to the way in which this Government treats its citizens—with disdain and derision.
Last week there was a members’ business debate on the subject, with no contribution from the Scottish National Party save for a rambling and embarrassing performance by the minister Joe Fitzpatrick—clearly, Clare Adamson was watching something else. I can tell her that there was palpable anger after his performance, which is what led to the debate today.
Will Mr Simpson take an intervention?
I want to pick up on something that Mr FitzPatrick said right at the start of the debate and which is quite concerning. He seemed to suggest that the very fact that we have an information commissioner means, in his words, that there is “an on-going independent inquiry”. That is not what the motion is calling for.
Just to be clear, what I said was that the information commissioner’s actions were an independent inquiry. The information commissioner is independent, the information commissioner is taking action after having looked at our performance and that is an on-going process.
Her actions are not an independent inquiry. What this motion calls for is something entirely different and separate from the information commissioner. That is what Parliament will vote on.
It is encouraging that the Scottish Government has accepted the need for review and post-legislative scrutiny, but it has been dragged kicking and screaming to that point.
The background to this debate is, of course, the open letter signed by 23 journalists expressing grave concerns about the way in which FOl has been handled by this Government. The letter was mentioned by Neil Findlay, Alex Rowley and Jamie Greene. As Edward Mountain said in his opening speech, the journalists complained of information requests being repeatedly delayed beyond the 20-day deadline; emails asking for updates being ignored; delays leading to appeals to the Scottish Information Commissioner; and requests being blocked for tenuous reasons and screened for political damage. We have now had it confirmed that special advisers are involved in that process. The journalists called for a review and, in our demand for an inquiry, we call for that as well as post-legislative scrutiny—a transparency double lock.
Against that background it may surprise Parliament to learn that the Scottish Government believes that it is a beacon of transparency and that we have in Scotland something called an open government national action plan. The problem that we have is that giving evasive answers is in this Government’s DNA.
I asked colleagues for examples. Brian Whittle has given some today, as has Jamie Greene, but here is a stonker from Liam Kerr. When he put the question:
“To ask the Scottish Government what the budgeted ongoing costs were for Edinburgh Gateway station, and what the actual ongoing maintenance costs have been”,
he got this enlightening reply from Humza Yousaf:
“The operational and maintenance costs for individual stations on the ScotRail network is commercially sensitive information.”—[Written Answers, 15 June 2017; S5W-09540.]
One of our researchers asked, under FOI, for information about work that had been done on Scotland and Brexit. There were four lengthy questions. [Interruption.] If Mr Stevenson can stop chuntering, I will get on with my speech. Essentially, they asked for details of meetings and correspondence on the potential implications of the UK leaving the European Union for Scotland’s long-run economic performance. The answer was that the Government did not have those records because everything was done in face-to-face meetings.
That has been the modus operandi of this Government when dealing with questions. The way in which this Government treats freedom of information amounts to censorship that is worthy of a totalitarian state, but why would a Government be open with its people when it thinks that it is the people? Maybe recent democratic events will help to dissuade it of that delusory state of mind.
When the FOI act became law, we might have thought that we in Scotland were being advanced—not so. Scotland is a comparatively recent convert to FOl, with the world’s first freedom of information law happening in Sweden in 1766.
The Scottish public information forum, which was meant to enable the long-term effectiveness of FOISA and the Environmental Information (Scotland) Regulations 2004, did not meet for over six years from 2010 until being reconvened by the Campaign for Freedom of Information Scotland. It will next meet on 28 September—international right to know day. I am not sure whether the Scottish Government is celebrating that day.
We on these benches welcome the Scottish Government’s new commitment to publishing all information that is released under freedom of information. The test will still be how quickly answers are given and whether a cloak of secrecy surrounds them. The SNP Government has responded to only 38 per cent of FOI requests with a full release of the information requested. It needs to do better.
Finally, I remind the chamber of the words of the then Deputy First Minister Jim Wallace—mentioned by Pauline McNeill—during the 2002 debate on the Freedom of Information Bill. He said:
“information is the currency of an open, democratic society”.—[Official Report, 17 January 2002; c 5453.]
Mr Wallace was right in 2002. We now need a Government that holds to his words.
That concludes the debate on freedom of information requests. Before we move on to the next item of business, I remind members that they should always be polite, even when they revert to name calling. [Laughter.]