by DOUG COLLIE
The woeful shortcomings of Scotland's Freedom of Information system have been laid bare yet again after Scottish Borders Council found itself in the 'dock' and unable to explain why it incorrectly told a requester it did not have the paperwork he had asked for.
It is only a matter of weeks since we told you the story of Roy Mackay, the gentleman who had notched up no fewer than seven victories against the council over it's various failures to supply him with proper or timeous responses to FOI requests. Better make that eight following yet another investigation by Scottish Information Commissioner (SIC) Rosemary Agnew.
This time the matter was so serious that the SIC was moved to "record her disappointment" at the Council's handling of Mr Mackay's request. And that is probably the most powerful punishment Ms Agnew has at her disposal in a system which allows public authorities to abuse FOI at will. Many of them continue to treat Freedom of Information with contempt.
In the case under discussion Mr Mackay asked SBC for information relating to searches carried out in relation to previous requests and decisions by the Commissioner.
The council told him it did not hold the requested information. But after Mr Mackay referred the case to the SIC the council notified Ms Agnew that it did have the documentation falling within the scope of the request.
A written decision from the Commissioner reveals that initially SBC did not even bother responding to Mr Mackay which meant he had to write again to request a review. But again there was no response, and it was only after the referral to Ms Agnew that he was told the local authority did not have the information he wanted. That was in July 2014.
However a persistent Mr Mackay had his case reopened by the SIC in January when he made it clear he did not accept the council's version. And after an investigator from SIC started an inquiry in February SBC confessed that, following further investigation, it had suddenly located information of interest to Mr Mackay.
Ms Agnew's report on the case says: "The Council explained that, at the time of Mr Mackay's request, it did not use search sheets or formally recorded searches. Mr Mackay's requests had largely been discussed verbally by council officers, and the relevant information which could be located was therefore limited. It could not explain why the review outcome of July 2014 informed Mr Mackay that no information was held.
"The council explained that members of staff who had dealt with Mr Mackay's request had since left its employment, with the result that any relevant information held within their personal email accounts had been permanently deleted".
The SIC said she had a number of concerns relating to the handling of Mr Mackay's request. In her rebuke, Ms Agnew states: "It is the council's duty to ensure that it's processes for recording and retrieving relevant information are resilient and can withstand changes in key personnel. The Commissioner will be monitoring the situation to ensure the council has robust and effective systems in place to deal with requests received."
She acknowledged SBC's performance in relation to Mr Mackay's request appeared to be in stark contrast to the initial improvements noted following special measures taken by her predecessor Kevin Dunion in 2009/2010 at SBC.
Mr Dunion thought it necessary to carry out a so-called on-site practice assessment at the Borders authority because it was failing to comply with FOI laws.
When the Commissioner's intervened SBC had only complied with the 20 working days allowed for responding to FOI requests in a dismal 71% of cases. However, after Mr Dunion's pep talk and improvements in staff training, systems and guidance for the public the council's performance shot up to 99.7% over a five month period in 2010.
It seems the lessons learned from the practice assessment were soon forgotten. This latest ticking off from Ms Agnew may result in a better service for requesters. But for how long? While the Freedom of Information Scotland Act continues to exist without meaningful sanctions and stiff penalties the regime remains open to widespread abuse.