Peering Through The Glass Wall

Craig DalzellCommon Weal is celebrating this week, and it’s not because someone with Magic Blood™ came up to Edinburgh for a day to don a magic hat and wave some magic wands that somehow give him power. We’re celebrating the recognition of some of our work in a recent Scottish Government consultation analysis. The results of the Government’s Freedom of Information consultation (you can read our response here) have been reported and I believe this is the most deeply embedded Common Weal policies have been in any consultation report I’ve seen in my time with this organisation. Usually, we end up hunting through these reports for the one solitary namecheck or just half a sentence that looks like it has come from our response. In this though, we’ve been explicitly mentioned or quoted more than a dozen times and many of our key ideas around Freedom of Information have been picked up and highlighted. Even better, in many of our points we’re not alone so there does seem to be now a strong wind blowing calling for the Scottish Government to reform and expand FOI legislation to ensure that we know what they are doing with the powers of their office. Only via total transparency can democracy be maintained. The analysis is lengthy – running to 70 pages – but well worth reading for that though I’ll take you through some of the points we’ve made that have been picked up. It is worth saying, however, that this is an analysis report and so only mentions points that the team who produced it through were notable in their answer to questions. It doesn’t imply their endorsement of those answers nor does it imply that the Scottish Government will follow our directions either – that’s a campaign for tomorrow…

Outsourcing

One of the biggest problems in current FOI law is that it only covers public services. One very easy way to avoid democratic transparency is to outsource or privatise those public services. A care home owned and run by a Local Authority is subject to FOI but a privatised care home that counts the same Local Authority as a client is not. We also run into issues trying to find even the details of privatisation contracts as they can be hidden from view under the guise “confidentiality”. We’re not the only ones who point out their concerns here. We’re joined by groups such as Unison and the Scottish Information Commissioner themselves.

Public-Owned Companies

There’s currently a grey area within how public-owned companies are dealt with with regards to FOI and (as keen followers of our work on a public energy company know) there are various ways to set up a company such that it may or may not straddle these grey areas. While the consultation asked if the definitions of “public-owned” could be sharpened to try to prevent such loopholes and while we agree with them doing so, our request in particular goes a bit further and looks at the service being provided and who has paid for it. In essence, we believe that FOI should cover the use of public money, regardless of who uses it to deliver the service being paid for. If the Scottish Government or a Local Authority or whatever gives public money to anyone – public body, private company or individual – then the use of that funding should be subject to FOI.

Integration of information

One of our major problems with the current setup is less in us receiving the information we uncover via FOI but in YOU also being able to see it. The information uncovered via FOI forms part of the public domain but that is relatively meaningless if you can’t find it in a public database. Both we and the information charity What Do They Know have asked for a better system of integration of this knowledge and the analysis specifically highlights our call for a Scottish Statistics Agency to play a role in that integration. Interestingly, we pointed at What Do They Know as another model of how this integration could take place (they offer to submit FOIs on your behalf and help you find where your question should be submitted) though we recognise the limits of their organisation in particular. A charity based in England and run by volunteers – no matter how effective and well-meaning they are – is simply not a sufficient means of safeguarding our statutory rights under law. We believe there must be an actual Government department set up to handle, curate and disseminate this kind of public information.We were also mentioned in our calls to ensure that information is actually published beyond simply replying to the initiator of the FOI. This call came out of work by my wife Ellen who, during one of her own campaigns around independence polling (While SNP MPs were taking the UK Government to court to uncover “secret” indy polls, Ellen discovered that the Scottish Government weren’t doing any themselves at all, secret or otherwise, during that time or since). During this investigation, Ellen also discovered that while the Scottish Government was compelled to respond to FOIs directly to the questioner, it could choose to not publish the response on the Government’s FOI website – once again leading to the situation where the information was made “public” but unless Ellen chose to disclose the FOI response herself (which she did) you would never know that the question had been asked or answered. For her, I’m therefore very pleased to see the issue of making the public disclosure of FOIs and their responses a legal duty is one of the issues that the analysis report highlighted despite this not being an issue that the consultation asked about directly.

The Glass Wall

Ultimately, no matter how extensive, FOI legislation will always hit a fundamental limit. Information can only be released if someone asks about it and to ask about something, you have to have at least some suspicion that the question could be important. The question “How many times this year has the Environment Minister met the oil lobby group Blowout Scotland?” is only a question that you can ask if you suspect that it might be possible that the Environment Minister has been meeting fictional oil lobby groups.We want the entire system of FOI to be replaced with one of proactive disclosure – something that already exists as “best practice” if not actual legal duty. The analysis report chose to highlight how this would work by quoting our example that there should be a duty towards “the proactive disclosure of all information that could conceivably be disclosed by a properly worded FOI request”. Essentially, public information should not be private unless asked for. If it’s public information, it should be in the public domain. The report also highlight our view that this would still require some level of curation whereby a Statistics Agency or information officers would still be required to assist you in finding information but this is only a matter of customer service, not one of gatekeeping that information.

Ministerial Veto

Right now, the First Minister has the power to veto any FOI request and the consultation asked if that power should be removed. Our answer here is a little nuanced. This is distinct from the issue uncovered in recent years where Scottish Ministers were actively and unlawfully interfering with the FOI process particularly to avoid answering questions submitted by journalists (a practice that we are assured no longer occurs but we should remain vigilant against it). Instead it is intended to be a final backstop against an FOI revealing information that could be compromising to things like national security. Our view is that these vetoes should be limited only to absolute necessity (I can’t think of many scenarios that wouldn’t have been caught by a general FOI exemption against matters of national security anyway) and, indeed, the FM veto has never yet been used but we are concerned about the general principle of where such powers should lie. The First Minister is not a President of Scotland, they are not above and beyond our democracy but they and the Government in which they serve should be mindful of being subordinate to, not the superior of the Scottish Parliament. If a veto is to be retained, it should be a matter for Parliament, not the FM. If this is unacceptable, then there should be no veto.

FOI Exemptions for the Information Commissioner

Another area of simply badly drafted law concerns how the Information Commissioner applies exemptions to FOIs about their own office. Right now, the messiness of the law means that the Commissioner can only apply exemptions via roundabout methods or loopholes so if a change to the law makes this process simpler and more clarified then we are prepared to accept it. We’re glad however that the analysis report highlights our point that this must not be used in a way that results in information that would have been released now, before the reform, being hidden or blocked.

Conclusion

I’m pleased to see our work was notable enough to be highlighted so comprehensively in this analysis report and we hope that we shall continue to prove influential as the Scottish Government brings forward its plans to update and reform Freedom of Information. We’ll certainly be watching to make sure they do and that they do it right. I know this doesn’t always sound like the most glamours of campaigns but it is the bedrock of all other campaigns around public policy. If we don’t know what our democracy is doing, how it is spending money, who it is talking to and what it’s talking about amongst itself then we quite simply don’t have a democracy. If we don’t get this right, then anything else we try to campaign for can be subverted and we won’t even know how it’s happening.