Response to Scottish Information Commissioner's report on FOI handling

On 21 June 2017, Parliament passed a motion that was critical of the Scottish Government's handling of FOI requests.

The motion called for an independent inquiry into the way that the Scottish Government deals with requests and for post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002. The Scottish Government supported that motion.

Post legislative scrutiny is a matter for parliamentary committees to take forward.

In respect of the independent inquiry, the Standards, Procedures and Public Appointments Committee agreed on 11 September that the Scottish Information Commissioner, who is independent of government and holds extensive statutory powers of regulation and enforcement, might be an appropriate person to undertake an independent 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 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 EIR 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 practice between 2015 and 2017 including cases cited by members of the media.

In addition, they have conducted in-depth interviews with a range of Minsters, Special Advisors and officials across the Scottish Government.

I would like to put on record my thanks for the professionalism of the Commissioner's staff and their efficient and business-like approach.

And I am pleased that the report notes the positive attitude 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 eighteen months and the results that have been delivered in terms of faster turn-around of requests.

In his assessment, the Commissioner makes 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 set out in the statutory Code of Practice. No authority – least of all Scottish Ministers – can take these 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.

Turning to some of the report's specific recommendations, a central focus is on the request clearance process. The Commissioner highlights:

• a 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 that it takes.

As many will know, the FOI process can be complex and it is important that all those involved in the process are clear about their role.

The legal duty to comply with FOI and EIR legislation lies with Ministers, who are accountable for all responses 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 ones who have to answer questions about the information once it is released.

It is also appropriate that as in any other area of government that Ministers are able to have the advice of Special Advisers in doing so.

The current Scottish Government procedures reflect those points. However, there is no doubt the process itself can be time-consuming and our guidance on roles needs to be clearer.

In light of the Commissioner's report and in line with our continuing efforts to reduce the turn-around times for responses we will review current guidance and assess the appropriate levels at which decisions on release for different categories of information are taken.

The Commissioner has considered in detail whether the Scottish Government treats and manages requests from journalists differently compared to requests made by other people and whether there is any detriment to the quality of the response as a result.

The current 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 if the request is from a journalist, MSP, political researcher or other 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 and I quote, 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 requestor. We agree.

And I am pleased to confirm that our internal guidance has been updated with immediate effect to make clear that considering the sensitivity of requests should be based on the information sought rather than the identity or role of the person making the requests.

It is important here to note that the Commissioner found no evidence that the difference in the clearance process resulted in detrimental treatment of the requester other than timing and also found no evidence that the involvement of special advisers resulted, as had been suggested in the open letter from the media, in any deliberate attempt to reduce the amount of information disclosed to journalists or in any improper motives in the application of exemptions.

His report notes and again I quote 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 compared with 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.

And as the Commissioner highlights the most recent statistics show response times of media requests to be generally in line with response times of non-media requests.

I am pleased that the report acknowledges the steps taken by the Scottish Government in the last 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 released in response to requests 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 enabling improved tracking of requests.

Work is also underway on improvements to guidance and training. And to further improve reporting and monitoring an improved tracking system is in the later stages of development.

While these improvements will produce longer-term benefits I would emphasise the considerable improvement in performance in the last year against a continued increase in demand.

In 2017, the Scottish Government received 3,046 requests, a 41% increase in volume on 2015 and almost a threefold increase since 2006.

In responding to those requests 83% were answered on time, more than the total number of requests received in either 2015 or 2016.

Against that backdrop of increasing request numbers, performance in the first five months of this year was 93% – ahead of the target set by the Commissioner of 90%. If FoI requests continue to be received at the same level we estimate we will process 4000 requests this year.

Presiding Officer, the Information Commissioner's report highlights examples of good practice – and expertise – in the Scottish Government. Where shortcomings have been identified we will seek to rectify them.

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 this 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. This 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.