Scottish Information Commissioner caves in to Scottish Government as case is "settled"

The Scottish Information Commissioner has agreed to settle a case with the Scottish Government, withdrawing an information notice he had served on Scottish ministers in respect of an application he was considering.

But this climbdown by the Commissioner has been portrayed in a different light by The Herald newspaper - as a victory for FoI.

It raises a serious question - how many other cases have been quietly "settled" by the Commissioner and his staff?

Scottish ministers have backed down in a controversial row over the authority of the country’s freedom of information tsar.

Government lawyers were due to appear in court last week to challenge the powers of Scottish Information Commissioner Kevin Dunion.

Ministers wanted to restrict Dunion’s access to their files – a vital part of his job.

However, at the eleventh hour they abandoned a key plank of their case.

The climbdown has been hailed as a victory for Dunion and other freedom of information (FoI) campaigners, who had viewed the government’s challenge as an unprecedented attack on the public’s right to access state files.

The Sunday Herald revealed in March that SNP ministers wanted the Court of Session to issue a clarification of Dunion’s powers. In particular, they wanted the court to rule on whether he should have unfettered access to state papers.

It followed Dunion issuing the government with an “information notice”, ordering it to release material to the media.

Although ministers downplayed their appeal to the court as “a small technical point”, FoI campaigners saw it as an unprecedented attack on the law underpinning FoI.

The Freedom of Information (Scotland) Act, which came into effect in 2005, has led to a series of breakthroughs in public access to official data, including the release of PPP/PFI contracts, patient mortality figures for surgeons and MSPs’ expenses.

It has also embarrassed First Minister Alex Salmond, unearthing his private correspondence with singer Sandi Thom, and revealing details of a controversial planning application involving ministers and an SNP donor.

Dunion considers appeals from people unhappy about public bodies withholding information. As part of this work, his office has access to all relevant documents, and decides how much should be made public and how much withheld on grounds such as commercial confidentiality, law and order, and personal privacy.

The government’s planned appeal against Dunion questioned whether he should have this right to inspect public records, even though it is an integral part of his work.

However, minsters retreated at the last minute, Dunion dropped his information notice, and the court dismissed the government’s appeal.

Heather Brooke, the FoI campaigner who exposed the MPs’ expenses scandal and author of The Silent State, said that “wiser heads had prevailed”.

She told the Sunday Herald: “It would have set a very dangerous precedent if they had gone through with it. It would also have looked incredibly bad, as if they were politicians of the old school, very shady and secretive.

“I don’t know how they could have argued an action like that was in the public interest.”

Robert Brown, the LibDem MSP for Glasgow who denounced the court case as “spurious”, accused the government of wasting taxpayers’ money on the case.

“The government has ultimately taken the right approach. But at a time of public spending pressures, it’s not at all satisfactory that they’ve been wasting our money on trying to prevent our FoI champion doing his job.”

A spokesman for Dunion’s office said: “In the lead-up to this week’s court hearing the ministers amended their grounds of appeal quite substantially, with the result that, following discussions with the ministers’ team, we were able to settle this case earlier in the week.

“As a result, the Court of Session dismissed the appeal at a hearing on Tuesday, and the full hearing did not proceed. The Commissioner is now progressing with the investigation of the case in question.”

A Government spokesperson said: “The Scottish Information Commissioner agreed to withdraw the information notice he had served on Scottish ministers in respect of an application he is currently considering. Ministers will not now proceed with their challenge to the notice.

“The Scottish Government is committed to FoI and its underpinning principles of openness and transparent government.”

Government climbs down over legal threat to freedom of information tsar (Tom Gordon, The Herald, 18 July 2010)