Government under fire for delaying FOI requests made by journalists

● Commissioner found ‘unjustifiable, significant delays’ in a number of cases

The Scottish Government has come under fire in a damning watchdog report which found journalists were “deliberately” being thwarted from receiving Freedom of Information responses.

Scotland’s Information Commissioner Daren Fitzhenry found journalists faced delays, were less likely to get information and treated differently from other members of the public. This breaches the “application blind” principle of Freedom of Information laws which gives citizens the right to seek information about all public bodies.

Concerns were also raised about the role of politically appointed “special advisers” in the way responses to journalists are handled.

“Journalists, together with MSPS and political researchers, are expressly made subject to a different process for clearance than other requester groups,” the Intervention report on the Scottish Government’s FOI practice, published today, found.

“This is inconsistent with the applicant-blind principle of FOI legislation. Their requests are almost invariably subjected to an additional layer of clearance which is likely to delay the consideration of the case.”

The proportion of late responses and failures to respond was considerably higher for journalists, particularly in 2015-16 and 2016-17.

The report added: “In a number of 2016 and 2017 cases I observed unjustifiable, significant delays and disregard for the statutory timescales.”

He found evidence of a “deliberate” delay one occasion, but suggested this may be higher but for the “paucity” of information in case files.

Conservative MSP Adam Tomkins said: “This is a remarkable report which exposes Nicola Sturgeon’s secret Scotland.

“It reveals an SNP government which not only deliberately stands in the way of legally-binding FOI requests made by the media, but goes to great lengths to delay or influence what information is provided.”

SNP Parliamentary business minister Joe Fitzpatrick said changes have been made resulting in “significant improvements” in FOI performance, with an end to journalists being treated differently from other applicants.

He said: “In the first five months of 2018 we responded to 93 per cent of FOI requests on time, exceeding the 90 per cent target set by the Information Commissioner and a 10 per cent increase on last year.

“Outside the FOI process, last year the Scottish Government responded to over 5,000 queries from journalists in a matter of hours.”

Freedom of information legislation was designed to improve accountability among organisations funded with taxpayers’ money and, in many instances, it has done precisely that.

Government departments, councils, and other public bodies have had no choice but to open up their decision making to a degree of scrutiny that would have been previously unimaginable. However, 16 years after the Freedom of Information (Scotland) Act was published, it is clear that the system is badly flawed.

An investigation by Scotland’s information commissioner, Daren Fitzhenry. has found that the Scottish Government routinely treats FOI requests from journalists differently to those from other people. This practice, says the commissioner, must end.

The Scotsman, along with all other news organisations, has a particular interest in ensuring that government ministers or their advisers are not able to influence FOI decisions. If a journalist is pursuing a particular line of inquiry and using FOI requests, then it is perfectly understandable that ministers might become anxious. This, we are afraid, is something they will simply have to live with.

The information commissioner has uncovered evidence that journalists had been significantly less likely to receive information in previous years. This is troubling indeed. And his finding that there is a lack of records of dealings between government advisers and the case-workers handling FOI requests gives us even greater cause for concern.

Doubtless there are many politicians who bitterly regret the introduction of the FOI system. Where once their shortcuts and horsetrading were kept out of sight, now they can be examined by anyone who knows the right questions to ask. But we remain unmoved by the regrets of politicians in this instance.

The Scottish Government says it will comply with the commissioner’s recommendation that it stops treating journalists’ requests differently. According to one minister, the government is “determined to learn” from this review.

Perhaps our scepticism can be excused. Scottish Government ministers and their advisers should never have been consulted over decisions on requests. If information is eligible for release then – upon request – it must be released, regardless of which government minister it might upset.