Tuesday, 5 August 2014

Our right to know? You must be joking!

Nine years on from the introduction of the Freedom of Information Scotland Act (FOISA), and those of us who think it matters how Scottish Borders Council spends our money should be awash with facts and figures covering every subject under the local government sun. After all, under FOISA, we have a RIGHT to know even if the council would rather we didn't.

Unfortunately, so far as I can see, FOISA has failed miserably to deliver, and as far as SBC is concerned the same off-hand and sloppy attitude towards Freedom of Information (FOI) requests is on display far too often. This will be an attempt to show that when it comes to responding to requests for information our council has not changed its attitude much, if at all, since 2006 when the first disputed case was submitted to a higher authority.

But first it has to be said the FOI system is stacked against any individual who might wish to question his or her local authority or other public body covered by the legislation.

The first major obstacle is the lack of any clause or section within FOISA which demands that our public servants respond with honest and accurate answers. So they can tell you virtually anything, and get away with it. Then there's the small matter of exempt information, a long agenda of items which they'd rather keep out of reach of inquisitive taxpayers, and frequently achieve that objective.

Perhaps the biggest stumbling block of all is the complete lack of fines and other sanctions within the regulatory system. Disputes involving FOI are administered by the Scottish Information Commissioner (SIC), but there has never been a single referral with a view to prosecution under FOISA.

The extremely light touch means agencies which are less than honest or efficient on the FOI front merely suffer a meaningless slap on the wrist then move on to their next demeanour. But at least it keeps the Commissioner and her staff of 22 with their annual budget of £1.5 million in employment.

A requester must give the council two shots at providing a satisfactory answer, including the chance to review the original response which is due to be delivered within 20 working days. If that fails to settle the matter then you can lodge an application with the Commissioner for a final decision.

Since 2006 there have been 38 "referrals upstairs" by SBC requesters, and in 25 (about 68%) the SIC has either found in favour of the applicant or partially upheld their plea. That represents a high 'offending rate' on the part of the council, but they show little sign of changing their ways.

In July 2006, shortly after FOISA's introduction, a requester asked for detailed information about the cost of an investigation within the architect section of the Council. SBC did not bother to respond at all. A repeat request was lodged on August 23; again there was no response so an application was made to the SIC for a decision.

It read: "The Commissioner finds that the council did not deal with the request for information according to requirements and failed to comply with Part One of FOISA".

Fast forward to 2014, and two recent decisions from the Commissioner. In the first case, on February 19 a
requester asked SBC about complaints made against school departments in each of the previous five years. The council did not respond, so on April 21 the questioner requested a review. Astonishingly, the council totally ignored that request too. The SIC was approached on May 28, and finally received written submissions on June 16.

SBC acknowledged its failings. The council initially failed to log the request and there were further delays in collecting accurate information after the request for review. SBC claimed "a review of procedures" was under way, something that should surely have been undertaken after the 2006 debacle. But it seems the local authority had also failed to take heed of previous SIC decisions and had done little or nothing to clean up its act.

Weeks later SBC was back in the SIC "court" on virtually identical charges. This time a requester lodged questions with the council on April 2 2014 for information about data protection breaches. There was no response by May 6 when a request for review was submitted. But yes, you guessed, again no response from the council.

And to compound matters SBC did not even take the trouble to offer the SIC a written explanation when invited to do so after the application for a decision was made on June 18.

In her written decision the Commissioner warned: " ENFORCEMENT: If SBC fails to comply [by responding to the requester by August 29] the SIC has the right to certify to the Court of Session that SBC has failed to comply. The court has the right to inquire into the matter and may deal with SBC as if it had committed a contempt of court."

As long as public bodies can continue to flout Freedom of Information legislation in this manner without fear of sanction or even conviction then surely the entire system is fatally flawed. After nine years of ducking and diving their time should be up. FOISA must be completely overhauled with all of the advantages on the side of the citizen rather than the body corporate.

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