A desperate plea from the Scottish Information Commissioner

If you wanted to find out the terms of a legally binding agreement entered into by a public authority and a commercial contractor, would you not simply ask for a copy of the contract?

If you wanted to establish what submissions were made by officials to a government minister in respect of a planning application, would you not simply ask for a copy of their report? In all likelihood you would use the normal everyday language of asking for a copy of the information.

Freedom of information requests couched in terms of copies of contracts, minutes, reports, briefings have produced valuable insights into PFI hospitals and road building programme, schools closures and the incidence of hospital acquired infections. But now the validity of such requests and the need to respond to them is being questioned by Scottish Government officials.

The freedom of information regime in Scotland has just celebrated its fifth birthday and is an internationally acknowledged success story. It was designed to have the minimum of formality so that anyone could make a request to any of Scotland's public authorities.

Unlike some other countries, there is no need to fill in an official form, cite the legislation or pay a fee when making a request. In case of dispute, there is a right of free appeal to me as the Scottish Information Commissioner to determine the case. I have issued nearly 1,000 formal decisions and settled hundreds of other cases informally. Few of my decisions are appealed against to the Court of Session.

But the Scottish Government's interpretation of a recent court decision threatens to undermine the right-to- know regime. Last year, in the circumstances of a particular case, the court determined that freedom of information gives a right to "information", not to specific "documents".

Scottish Government officials are writing to requesters refusing to respond to requests where there is a reference to documents. MSPs, journalists and voluntary workers are being told to try to rephrase their request. Some have tried and have still been refused. In exasperation, they are seeking my view.

I find this to be a disturbing and unexpected turn of events. The current government has built on the groundbreaking work of the first Labour/Liberal Democrat coalition administration which brought in the Freedom of Information (Scotland) Act. It has signalled that it wants to extend FoI to bodies such as local authority leisure and recreation trusts, major PFI/PPP contractors and to others such as the Glasgow Housing Association.

I have, in the past, commented favourably on the official attitude to freedom of information in Scotland compared to that in Westminster. There, the failure to extend FoI to similar bodies, the sustained attempt to withhold details of MPs' expenses, and the use of the ministerial veto to prevent disclosure of Cabinet minutes stands in marked contrast to our experience.

But it is Scotland which is now going to attract unfavourable attention. I know of no other country in the world where the FoI law does not allow you to make reference to documents when requesting information. People will simply not play a parlour game where you have to identify what you want without using certain words – such as record, minute, report, e-mail, letter or indeed any means by which the information is recorded or could be located. In my view, it is obviously possible to describe information by reference to documents.

(By the way, it is almost impossible to conceive of certain requests for information being made without asking for copies – how else, in plain language, would you ask for a photograph, a map, a plan, or a CCTV recording? All of these can be requested under freedom of information laws.)

Crucially, the judges recognised that people will ask for copies of a document, and that authorities should still respond to a request if it is reasonably clear that it is the information contained in those documents which is wanted.

But not only are officials saying that they can refuse to respond to the requests, they are also saying that there is no right of appeal to me. Indeed, they are challenging my ability to adjudicate in such cases at all. I do not share this view and will do my job – of issuing guidance on good practice which I expect authorities to follow and determining whether authorities are dealing with requests in accordance with the Freedom of Information Act, including whether it has misdirected itself as to what constitutes a valid request

This is not a marginal technical disagreement. It lies at the core of whether we have a functioning FoI regime at all. I have looked at my current caseload and in nearly 80 per cent of cases the applicant has asked for a copy of a document. No-one wants to see the Freedom of Information Act being reduced to a mechanism for issuing official refusals of information, by which the majority of requests are turned away.

A commonsense approach to what was intended to be a commonsense law would ensure that we can get back to celebrating the real progress towards openness which we have made in Scotland.

Kevin Dunion: Resist this threat to our freedom (Scotland on Sunday, 31 January 2010)