Craig Dalzell – 7th July 2022
I have an update to my article from a few weeks back on Freedom of Information. In that article I made the case that our FOI laws are woefully insufficient. An FOI request allows you to bring Government information into the public domain simply by you asking for it. To look at it another way, all information that could be released by an FOI request is already public domain but for the lack of the appropriate question being asked. This is a major limit in itself as to get at that information, first we need to be able to ask that appropriate question.
However my wife Ellen and I discovered that what we mean by “public domain” and what the Scottish Government means by it may be two very different things. It appeared to us that while the Government regularly publishes the replies to FOI requests to its online archive, it does not appear to publish every reply there though they consider a private reply directly to the requester to be equivalent to posting the information into the public domain. Communication with the Information Commissioner revealed that there was no legal obligation for the Government to post replies to a public archive at all, merely that it was considered “best practice”. As we had personal experience of an FOI request not being posted to that archive and it got us wondering how often this happened. By examining the unique serial codes of the FOI requests that were published and making the assumption that they were assigned to requests sequentially as they arrived, I estimated that around 30% of replies made it to the public archive. But I thought I could do better than that so I decided to FOI some information about FOIs.
I submitted a request for three pieces of information. Across the calender year 2021, how many FOIs had been received by the Scottish Government, how many had been published on the FOI archive and how many requests had been published only via direct response to the requester. I chose 2021 specifically out of concern that too broad a search (e.g. across the whole archive) would cause my question to breach the £600 cost limit on FOIs and thus my request to be denied. You can read the reply to my request below.
Of the 5124 FOI requests received by the Scottish Government in 2021, just 2080 of them were published on the website – a publication rate of 40.6%. Higher than my 30% estimate, though that estimate did, of course, cover the entire database since 2017 as well as up till June 2022 so may have included requests that had been assigned serial numbers but not yet published in full.
However, I could not be told how many of the FOI requests were responded only directly to the requester without subsequently being published as this would require a manual check of all of the emails and thus would exceed the FOI cost limit. We therefore can’t tell the difference yet between an FOI that wasn’t published because it was rejected or was trivial from one that wasn’t published except by direct communication to the requester or from one that is deemed to not have value to the public interest. (As of the time of writing, this particular FOI hasn’t yet made it to the public website but they appear to be done in batches every couple of weeks so that isn’t unusual)
There is an issue here that is far more serious than just timely accounting. It looks very much like the Scottish Government has some control over which FOI requests are and are not published in a publicly accessible database. This inevitably means that it is possible to hide important or (perhaps more pertinently) inconvenient information from the wider public in plain sight, sure in the knowledge that unless the FOI requester is a journalist (see my previous article on the Government previously being caught interfering with journalist FOIs) or an annoyingly geeky think-tank Policy Head, that information can be said to be “in the public domain” without it being accessible to anyone more widely or attention bearing down on it.
There’s plenty of road to run on this issue of improving government transparency (and I shall certainly be lending my support to MSP Katy Clark’s campaign to accelerate FOI reform – including her bill to include private companies using public money in FOI legislation so that the Government can’t hide information by privatisation). With regards to this particular issue, I believe that the FOI legislation should be amended to make it a statutory duty to publish all replies to FOI requests to their public archive. It should be for us, not the Government, to determine if it is in our public interest to see information that they have put into the public domain.