Government must improve its Freedom of Information performance – Commissioner

The Scottish Government has been told it must improve its performance around Freedom of Information (FOI) laws, after a watchdog said there are “systemic” concerns.

Scotland’s Information Commissioner, Daren Fitzhenry, has released a report saying there were significant record-keeping failures as well as delays and bottlenecks.

However, the report said improvements had been observed in the two-year period analysed.

New procedures for FOI requests were introduced by the Government following a review in 2018.

The report said it was not possible to analyse many case files as the records had not been managed properly.

Mr Fitzhenry said: “It’s reassuring to see that the Scottish Government has made significant improvements in a number of key areas and that elements of the new processes are impacting positively on organisation culture and practice.

“However, it is also clear that work remains to be done if the Scottish Government is to deliver sustained improvement in its FOI performance.

“While the pandemic was undoubtedly a factor in some of the issues we identified, it was evident that problems with records management; compliance with procedures; and the recording, tracking and monitoring of FOI requests, stem from wider, more systemic, concerns.”

He continued: “FOI is an important right. It enables people to understand more about the public services they use and the decisions which affect them; and supports public engagement.

“I will continue to work with the Scottish Government as it addresses my recommendations, to support the timely and effective delivery of FOI for everyone who seeks information from the Scottish Government.”

At the end of April, the Information Commissioner ruled that the Scottish Government should publish legal advice it received about a second independence referendum.

Ministers have said they are “carefully” considering his ruling.

Responding to the report on Tuesday, Minister for Parliamentary Business George Adam said the Government was committed to openness and transparency.

He said: “As this report recognises, the Covid pandemic had a significant impact on our FOI handling.

“Prior to the pandemic the Scottish Government met its target to respond to 95% of requests on time in seven of the eight months to March 2020.

“Responding to the pandemic necessitated an immediate redeployment of staff at an unprecedented scale within the Scottish Government.

“We have worked hard to restore turnaround times.”

He continued: “Over the past two years response rates for requests issued within 20 working days have improved to around the average for Scottish public bodies, at 86%. We have, at the same time, responded to a steep increase in the volume of FOI requests – handling a record 4,200 requests last year – 25% more in 2021 than the previous year, the vast majority on time.

“Nevertheless we remain committed to further improvement, including achieving the target of answering 95% of requests on time.

“I welcome the Commissioner’s recommendations and we will develop our action plan to address the areas identified that require further work.”

After publication of the report, Scottish Tory MSP Craig Hoy said: “This report reveals just how bad the corrosive culture of secrecy has become under the SNP Government.

“Persistent problems with record-keeping have made it difficult for the Information Commissioner to fully investigate the government, and though there seems to have been some recent progress on improving FOI practices, too many responses are being held up by the involvement of government ministers and special advisers.

“Wherever possible, freedom of information requests should be assessed by neutral case handlers, not political officials who may benefit from the information being withheld or released.”

While Scottish Labour MSP Neil Bibby said the report was “damning”, adding: “Records management is still being systematically bungled and we are still seeing scandalous levels of political oversight in routine requests.

“There is a real risk that the meagre progress observed here has since been wiped out, with the government blatantly sidelining FOI laws under the guise of the pandemic.

“The SNP government must stop dragging their heels and act on all the recommendations made here and in 2018 – but their contempt for FOI is just the tip of the iceberg.”