Open letter to the Scottish parliament selection panel for the Scottish Information
Commissioner appointment:
Ken MacIntosh MSP, Presiding Officer
Clare Adamson MSP
Margaret Mitchell MSP
David Stewart MSP
Andy Wightman MSP
cc: Derek Mackay, Cabinet Secretary Finance and the Constitution
Leslie Evans, Permanent Secretary at the Scottish Government
Margaret Keyse, acting Scottish Information Commissioner
Dear interview panel members:
We are a group of newspaper, online and broadcast journalists who routinely use
freedom of information legislation in our reporting and research, and we are writing
to you to raise live concerns we have about current practice and experience trying
to use that legislation, particularly with respect to the Scottish government and its
agencies.
The freedom of information laws and procedures which came into force in Scotland
through the Freedom of Information (Scotland) Act 2002 and the Environmental
Information Regulations has led to a major improvement in government
transparency, setting strong standards for openness and accountability.
In the last few years, however, we have become increasingly concerned about the
way in which the legislation is being interpreted and implemented. We would be
grateful if these concerns could be taken into account during the process to
appoint a new Scottish Information Commissioner.
We have recent examples of:
1) information requests being repeatedly delayed significantly beyond the 20
working day deadline without clear justification or warning;
2) emails asking for an update on answering requests in cases of delays beyond the
legal deadline being routinely ignored by officials;

 3) officials delaying responses for so long that the initial requests only get
answered under internal review, making it impossible for journalists to ask for
incomplete replies to be internally reviewed again. This leaves them facing further
longer delays by appealing to the Scottish Information Commissioner;
4) Scottish government officials taking control of requests to other government
agencies without the consent of the applicant;
5) requests being blocked or refused for tenuous reasons;
6) requests being screened for potential political damage by special advisers and of
responses to individual journalists being routinely handled by special advisers.
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
suspect there have been cuts in the resources and time being made available by
the civil service for handling freedom of information requests.
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 Scottish government has described itself as a beacon of transparency under
the Open Government Partnership and says it is committed to becoming more
open, accountable and responsive.
http://news.gov.scot/news/world-leaders-on-openness-and-transparency
We believe our experiences put that commitment under great doubt. Rosemary
Agnew, the most recent Scottish Information Commissioner, has consistently raised
her concerns about the Scottish government’s handling of information requests
both in her decisions on individual appeals and also in her annual reports.
Ms Agnew set out her concerns before leaving her post, telling one interviewer the
performance of ministers in dealing with FoI requests had been “totally
unacceptable”, and in her “end of term” report to the Scottish parliament on 28

 April, where she said public authorities now put greater emphasis on what not to
disclose than on what ought to be released.
https://theferret.scot/information-watchdog-scottish-ministers/
http://www.itspublicknowledge.info/home/SICReports/OtherReports/SpecialReport
ProactivePublication2017.aspx
We believe there are now grounds for a review of the Scottish government’s
treatment of and policies for dealing with freedom of information requests, and
would urge the Scottish government to address these concerns by immediately
acting within the spirit and letter of Scotland’s freedom of information legislation.
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.
This open letter will be published online by The Ferret and CommonSpace on
Thursday 1 June.
Yours, the undersigned
Billy Briggs, Fiona Davidson, Rob Edwards, Peter Geoghegan, Rachel Hamada and
Layla-Roxanne Hill (The Ferret)
Angela Haggerty, Nathanael Williams, David Jamieson and Michael Gray
(CommonSpace)
Severin Carrell (The Guardian)
James McEnaney (freelance)
Daniel Sanderson (The Times)
Andrew Picken (Sunday Post)
Chris Diamond on behalf of the BBC NUJ chapel
Bernard Ponsonby on behalf of the STV NUJ chapel
David Clegg (Daily Record)
Michael Blackley (Daily Mail Scotland)
Paul Hutcheon (Sunday Herald)
Kieran Andrews (The Courier)
Simon Johnson (The Telegraph)
Ian Dunn (Scottish Catholic Observer)
Tom Gordon (The Herald)