This Article Has Been [Redacted]

The Scottish Government continues to show bad faith when it comes to Freedom of Information, spending more time and effort to conceal information than it would take to simply comply with the spirit of the legislation.

Source: Unsplash

My co-author on our book All of Our Futures, Bill Johnston, has been gathering data from the Scottish Government as part of an upcoming project on policies for older people in Scotland (something that was conspicuously absent from this year’s brought-forward Programme for Government) and this has included trying to work out exactly what the Scottish Government have been doing with respect to this area of policy.

He recently received a very substantial tranche of data when he asked for an update on progress towards implementing the recommendations of the 2019 Fairer Scotland for Older People Action Framework. This Framework was pioneered by the late Christina McKelvie when she was the Minister for Older People and Equalities. This Ministerial office was dropped under Humza Yousaf and was not reactivated by John Swinney – who went as far as to completely ignore the issues affecting older people in his latest Programme for Government.

Attempts to increase the attention paid to older people like Labour MSP Colin Smythe’s Members’ Bill for a Commissioner for Older People have been slow-moving and impacted by (well meaning) efforts to regularise and improve the landscape of Commissioners in Scotland. There may well not be enough time in this parliamentary session to debate, amend and pass that Bill before the election and even if it does, it will be for the next Parliament to do something about it and what that “something” might be will be highly dependent on the results of the election and which individuals (never mind which parties) are in power to either advocate for it or to block it.

Bill ended up FOIing the Government for ministerial minutes and notes regarding the Framework to try to find out what the Government has been doing with it since 2019 and recently got a response which, while it contains some useful parts, has been heavily redacted to the point that it doesn’t tell us anywhere near enough – though it does provide a useful lesson on the still limited scope of what should be our rights to Freedom of Information.

The response (FOI 202500462766 – It should be on the Government’s publication page in the coming days. Maybe – they’re strangely not actually obligated to publish it there, which is another one of those limits that I’ve written about previously).

The disclosed material consists largely of tables of each of the recommendations in the Framework, which area of policy the Government believes the recommendation falls within, which MSP, Minister or Civil Servant is leading on the implementation, what the Government is doing or has done to implement the recommendation and whether or not the Government believes that they have achieved their goal. Here is an excerpt of what we received (the formatting errors on the table are as we received them in the PDF)

Source: Scottish Government

As you can see, we can at least tell from this which questions the Government is asking themselves. We don’t know who has been tasked with answering them (redactions on the grounds of Personal Information are actually genuinely reasonable and are only overturned in very specific circumstances – and I say that as someone who was once inadvertently doxxed due to an improperly redacted FOI about a meeting with the Government that I was a part of) but more crucially, we don’t actually know what the Government has decided to do to implement the Framework recommendations or whether they think they’ve been successful or not – which was the entire purpose of the FOI request.

The Government claims that these redactions are necessary to preserve the ability for Ministers to speak freely without thinking they’ll be FOIed for everything they say. My own view is that they absolutely should hold their frank discussions in full public view so we can determine how they are making policy. Bill is currently appealing these redactions so we’ll update you if we find out more.

There was a third element of redactions to the FOI that I’d like to highlight though. Large swathes of the documents Bill received were marked as [Information removed as not in scope of request]. This highlights a very particular limitation of your rights to Freedom of Information that should have been covered by legislation, is covered by the spirit of the guidelines but is far too often ignored to our detriment.

Source: Scottish Government

The information redacted by that line is not related to what Bill asked for (so the Government claims - we obviously cannot verify this), but it is on the same document as material that was released. It may well be related to that released material, may give context to it or may help us better understand what has been released.

Importantly though, this is information that the Government has deemed is worthy of being released into the public domain. We know this because it hasn’t been marked with one of the exemptions like it being personal information. Still, the only reason this public information, that is worthy of being in the public domain, is not viewable by us, the public, is because no-one has thought to ask a question under an FOI that would reveal that information. That someone got close to discovering it was enough for someone to go to more effort to redact that information that it would have taken to simple release the document unredacted.

This is the biggest flaw in the whole FOI process. That information is secret by default until and unless someone first conceives of and then asks a question to reveal it. It’s a bit like trying to order a meal at a restaurant but being told that you’ll only get to see the bits of the menu that you can first correctly guess exist.

Bill is currently trying to get to that redacted information as well, but the Government is skating between the lines of the letter and the spirit of the rules here. The FOI regulations state that it is best practice to “proactively publish” as much as possible, but it’s clear that the Scottish Government doesn’t do that.

In our push for better government transparency, we’ve advocated many extensions to the FOI legislation (we support Katy Clark’s Bill to extend FOI to all private companies who deliver services using public money and I’m currently involved in the Government Working Group to help extend FOI specifically into private care homes with public contracts as was called for in the National Care Service Bill) but we’d like to see an approach that we call a ‘Glass Wall’ level of Government transparency.

Under the Glass Wall, the Government would have a statutory obligation such that any information that could conceivably be published by a legitimately worded FOI request, would be proactively published by default. There would be a government database somewhere containing all such information and that database would be freely browseable by any member of the public.

This wouldn’t necessarily remove the need for people similar to FOI officers as people will certainly need the assistance of something akin to a data librarian to help them find specific bits of information, but it would mean that lines like “[Information removed as not in scope of request]” would simply no longer exist on Government documents because whether or not you are looking for that information, you still have the right to see it.

Freedom of Information is an important safeguard of democracy. We need to know what decisions the Government is making, how they are making them, who they are taking advice from (even when it’s me) and what evidence has led them to their policy decisions (especially when it’s “none”). It’s not even just a principle of democracy at play here, but one of ownership.

Information held by the Government is publicly-owned, which means you own it and should have a right to see it. The Government should only restrict your access to your property if there is a very good reason to do so (e.g. ‘national security’ though even then, this holds only for as long as necessary, which is why we demand that information is declassified sooner or later).

Either way, Freedom of Information is vital and Governments have to allow themselves to be held to account. It’s clear that as powerful as the current legislation was when it was introduced, it needs to be updated and expanded. ‘Guidelines’ and ‘best practice’ are no longer sufficient if they can simply be ignored.

Those proactive publication principles need to be placed on a statutory footing and the reasons Government has for exempting information from publication needs to be shortened and perhaps even time limited (e.g. Ministerial emails could be automatically published after six months, ‘commercial contracts’ kept confidential only until the contract is formally signed).

Democracy dies in the darkness. Secrets and corruption die in the sunlight. Only when we have the power to pull back the curtains, can we protect the former and protect ourselves from the latter.