Celebrating five years of more open information

The key to a new age of transparent government, or simply a godsend for campaigners, journalists and the terminally curious?

The Freedom of Information (FoI) Act has had an interesting five years, providing the media and campaigners with some tasty scoops, as well offering some uncomfortable moments for politicians and public officers.

Heralding its fifth anniversary this week, Scottish Information Commissioner Kevin Dunion – the man tasked with policing its application – acclaimed the "good news" offered by the legislation, which he said was offering "more information than ever before".

But with recent research showing the public's perception and knowledge of the legislation is on the wane, and anecdotal evidence that public authorities are becoming cannier with their interpretation of the rules, is the transparent Utopia forecast by the proponents of the act in danger of becoming bogged down by bureaucracy?

More worrying for Mr Dunion, is the increased threat of legal challenges to his interpretation of the legislation. In October, he was on the receiving end of an excoriating verdict from Court of Session judges Lords Reed, Clarke and Hardie, who branded his actions "irrational" and said he had failed to treat Glasgow and Dundee Councils fairly on cases involving the sale of land records (Commissioner makes basic errors in law and fails to act fairly).

The judgment said the public was allowed access only to the information contained within documents and not the documents themselves. The ruling, commentators said, paved the way for public authorities to apply even narrower definitions to requests something that appears to fly in the face of the supposed spirit of the law.

As he ponders his legal response to that judgment, Mr Dunion raises some concerns about its implications: "We have always known that the right was to information, but the expectation was that people could ask for the minutes of a meeting," he says. "People understood that meant the information contained within those minutes.

"My concern is going to be that if that decision leads to an officious response so that authorities delay, at the very least, the information by saying, 'You have asked for a copy, or a document, when what you should have asked for is information'."

But even as he faces a restriction on the information that may be released, Mr Dunion continues his campaign to have the remit of the legislation extended. He is a vocal supporter of the Scottish Government's plans to extend FoI to private firms operating public services. His contention remains that much of the information now covered under the act will no longer be held by public authorities, instead being kept by contractors or arm's-length trusts.

"I have no doubt that some of them will resist it – particularly the private contractors – but the case has got to be made strongly that if you receive public funding to the extent they do, they should be held publicly accountable for it through the FoI act."

Also on his radar in the coming year are concerns that those entitled to access information are unaware of their rights, especially in relation to appeals.

"I don't think people are as aware of it as they should be," he warns. "The way the act was set up was that people don't need to be aware of their legal rights to be able to exercise them.

"My concern comes when there is any kind of dispute. People are not aware of their right of appeal to me, and if authorities are not telling them of their rights, that is a real problem."

Despite the concerns, Mr Dunion remains convinced that public life in Scotland is moving towards the open society envisaged when the act was brought in. Its intention, he insists, was not to create the bureaucratic dance some people find when attempting to access data, and he warns against public authorities moving towards that situation.

"The law was set up to give people an entitlement to information, whether that is held in documents, photographs, CCTV records, and to do so in a way that people didn't have to cite the law," he says. "It is not like America, where you have to say, 'under the terms of the Freedom of Information Act, please give me the following,' or, in the case of Ireland, paying a charge. The whole intention was for people to make a normal request. To now say you have to phrase the request in a certain way for it to be valid, that will be highly retrogressive and not at all within the spirit of the legislation."

But are things improving?

"I honestly do think that is the case," he says.

"The vast majority of requests made to a public authority will get a response within 20 days. In most cases you will be given the information you want or you will be given a reasonable explanation as to why you can't get it."

The Scotsman (7 January 2010)