Exclusive: Scottish Government deny special advisers responsible for delaying FoI request about special advisers

Ben Wray

Scottish Information Commissioner has criticised government proposals for FoI reform to the responsibilities of special advisers in the FoI process

THE Scottish Government has denied that its Special Advisers (SPADs) are responsible for a long delay in an FoI request specifically about SPAD communications, despite email evidence to the contrary.

On 10 August journalist and frequent FoI-user James McEnaney sent a Freedom of Information request asking about communications between Scottish Government special adviser (SPAD) Colin McCallister and Education Scotland from January 2016-present. 

On 7 September McEnaney received an email saying the Scottish Government were not going to meet the 20 working day deadline for FoI submission returns, a legal requirement under FoI law.

When McEnaney enquired as to why this was, he was told on 11 September that the “sheer amount of work” in “the consideration, redaction and general preparation” of the FoI request was the reason for the delay, but that the request was “now with SPADs for consideration”.

He has since not received any communication about his FoI request, which is now 35 working days late.

A Scottish Government spokesperson told CommonSpace that it would be wrong to say the reason for the delay to McEnaney’s request was in any way to do with SPAD involvement, but did not offer an alternative explanation or explain the email from the Scottish Government on 11 September which said it was with SPADs for consideration.

READ MORE: Information Commissioner tells the Scottish Government its handling of FoI requests ‘inherently wrong’

CommonSpace also asked the Scottish Government if they believed there to be a conflict of interest in SPADs handling FoI requests about SPADs, but did not receive a reply.

A Scottish Government spokesperson said: “In the first eight months of 2018, we answered 93 per cent of FOI requests on time and we are committed to further improving our FOI performance.

“In this case, we acknowledge that the request should have been dealt with quicker and we can confirm that a response will be issued shortly.

“The Scottish Government cooperated fully with the Scottish Information Commissioner’s recent comprehensive independent review on Freedom of Information practice and performance, and has now accepted his recommendations in full to support continued improvement.”

After a year-long investigation, the Scottish Information Commissioner Darren Fitzhenry’s review of the handling of FoI was published in June, and found that the government’s approach to FoI’s from journalists was “inherently wrong”. The report said journalists’ FoI’s were treated differently from others, take longer to process and were more likely to be ignored.

READ MORE: Journalists’ open letter on freedom of information policy in Scotland

“Journalists, together with MSPs and political researchers, are expressly made subject to a different process for clearance than other requester groups. This is inconsistent with the applicant-blind principle of FOI legislation. Their requests are almost invariably subjected to an additional layer of clearance which is likely to delay the consideration of the case,” the report found.

Specifically on the role of SPADs, Fitzhenry found the Scottish Government’s policy and guidance was “remarkably silent”, despite regular vetting of FoI’s from government advisers.

The Scottish Information Commissioner ordered the Scottish Government to publish a draft action plan for his consideration, which was subsequently published on 13 September. The plan states that that: “Cases identified as sensitive or exceptionally complex will, after clearance, be referred to SPADs and ministers for comment.”

The Herald on Sunday reported on 14 October that Fitzhenry had criticised this aspect of the draft plan, stating in his response to the government: “I note that, for example, cases identified as sensitive or exceptionally complex will be referred to special advisers and Ministers for ‘comment’ after ‘clearance’. I am concerned that this will not provide the desired clarity or transparency.

“As my report provided, the role of ministers and special advisers must be made clear to all in the process, including requesters.”

READ MORE: Journalists unite with open letter damning Scottish Government handling of FoI requests

Dr David Goldberg from the campaign for FoI looked at McEnaney’s case and told CommonSpace that he was “quite surprised” that it appeared as if SPADs were centrally involved in the handling of the request when “FoI officers exist to do that job”.

He added that the extent of the delay in the handling of the request was “worrying” and “requires explanation”.

“Not only is it perfectly reasonable to expect a request to be met within the two week deadline, but the wording of the FoI Act says that requests should be dealt with ‘as soon as is practically possible’, so the two week deadline is the very limit of the time that it should take,” he said.

McEnaney told CommonSpace that he had not yet sought a review from the government into his FoI request because of what he believes is a loophole in the Act, where a challenge to the government can be submitted on the basis of a delay or on the basis of missing or witheld information, but not both. It was not possible to say whether he would need to submit a challenge on the basis of missing information until he had received the FoI response, leaving him in a bind, he explained.

On 1 June 2017 a range of journalists, including at CommonSpace,  signed a letter raising concerns about the handling of FoI requests, and called on the Scottish Government to review its treatment of and policies relating to FoI requests.

Picture courtesy of EvelynGiggles

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