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NUJ signs letter criticising Scottish government for breaches of FOI law

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1 June 2017

The National Union of Journalists has backed a joint letter by journalists and NUJ chapels expressing serious concern at the way the Scottish government has been treating Freedom of Information requests from the media.

Journalists led by leading investigative journalism platform The Ferret, have joined forces and signed a letter of concern, accusing the Scottish government of failing to keep records and frustrating freedom of information (FoI) law. 

Twenty-three online, broadcast and newspaper journalists have signed the joint letter of concern to MSPs who are about to choose Scotland’s new information watchdog.

The letter, copied to the FoI minister Derek Mackay, warned that ministers’ much-vaunted commitments to openness and transparency are “under great doubt”.

Paul Holleran, NUJ Scottish organiser, said:

“The NUJ has been concerned for some time about the changing attitude towards FoI in Scotland, particularly in respect of Scottish government treatment of the issue. It appears to me there has been a change in the culture of FoI engagement by some ministers. The approach to dealing with responses is dramatically different than the heady days of its introduction and early implementation of the FoI Act.”

The letter has been welcomed by the acting Scottish Information Commissioner, who says that it highlights “potentially serious breaches” of statutory duties. It has also been backed by the NUJ union chapels at the BBC and STV.

Among the signatories are 10 journalists from The Ferret and digital news service Common Space, plus experienced FoI reporters at the Guardian, The Times, The Telegraph, Daily Record, Daily Mail, The Herald, Sunday Herald, Sunday Post and others.

The letter highlights flaws in the way the Scottish government and its agencies respond to FoI requests. It said:

“We have become increasingly concerned about the way in which the legislation is being interpreted and implemented."

The letter cites examples of legal deadlines being breached, long delays, and requests being blocked or refused for “tenuous” reasons. It accuses the Scottish government of “taking control” of information requests to agencies and of using special advisers to screen requests for political damage. It said:

“Some of these experiences raise questions of whether information requests by journalists are being treated and managed differently, even though the legislation requires all requests to be handled equally and without favour or prejudice.
“We are increasingly told the information we are seeking is not held where ministerial meetings with other bodies or individuals to discuss government policy are said to be informal, minutes are not taken, and records are not kept. Correspondence and reports that should be available seem not to exist...
“This raises the question of whether Scottish ministers and civil servants now have a practice of not recording information that would previously have been recorded.”

The journalists’ experience casts doubt on the Scottish government’s promise to be a “beacon of transparency”, the letter argued. It highlighted fierce criticisms of the government’s FoI record by the former Scottish Information Commissioner, Rosemary Agnew, in an interview with The Ferret in April.

The letter urged ministers to act within the spirit and letter of FoI law, and called for a review of the Scottish government’s policies for dealing with FoI requests. It concluded:

“We believe that review should also look closely at the question of whether the legislation should include a duty to record on government officials, advisers and ministers, particularly when meeting with outside bodies, individuals or lobbyists to discuss government policy.”

Rosemary Agnew stepped down as information commissioner on 30 April to start work as the Scottish Public Services Ombudsman dealing with complaints against public bodies. A committee of five MSPs, including the Scottish Parliament’s presiding officer Ken Macintosh and the Green MSP Andy Wightman, is due to interview candidates to succeed her next week (5 June).

In the interim, the acting Scottish Information Commissioner is Margaret Keyse, head of enforcement in the commissioner’s office in St Andrews. “I welcome the letter,” she said. “The journalists’ experience points to potentially serious breaches of a statutory duty. The commissioner can investigate these breaches, but only if they are appealed to us.”

The commissioner had a long track record of taking a strong line on FoI breaches, she stated.  Rosemary Agnew had set out concerns about failures to respond in 2014, and enforceable decisions had been issued when public agencies failed to respond to requests from journalists.

 Margaret Keyse added:

"Where we receive more than five appeals about a single authority failing to respond to requests on time, we take action under our enforcement policy, requiring it to take steps to improve compliance. We are currently undertaking this work with the Scottish government.”

The Campaign for Freedom of Information in Scotland maintained that the work of independent journalists was essential in holding government and public sector agencies to account. David Goldberg, one of the campaign’s founding members, said:

“The public have the right to form opinions but they need access to accurate and up to date information to give that right meaning. We need journalists probing behind the headlines and asking questions of public interest to ensure open and accountable publicly funded services – and their rights as well as their role need to be respected.”

The Scottish government insisted that its records were maintained in accordance with all relevant records’ management legislation and practice. A spokeswoman said:

“Scotland has the most open and far-reaching freedom of information laws in the UK. We take our responsibility for FoI seriously and in the large majority of cases we respond on time and in full. At the same time, the increasing volume and complexity of some requests can prove time-consuming, and has the potential to seriously impact on the work of government.”

She said the number of FoI requests was steadily increasing. There were more than 2,000 requests last year, and more received in the first three months of 2017 than in the whole of 2007. “We are working with the commissioner to ensure we continue to provide information in as timely a way as possible, while continuing to look for opportunities to proactively release information,” she said.

Tags: , scotland, freedom of information, Scottish government, msps, MSP, Ferret, Margaret Keyse, David Goldberg, Andy Wightman, Ken Macintosh, Rosemary Agnew, Scottish Information Commissioner, Derek Mackay, Common Space, Guardian, The Times, The Telegraph, Daily Record, Daily Mail, The Herald, Sunday Herald, Sunday Post, letter