MINISTERS and special advisers are breaking the law if they refuse to disclose texts, private email accounts and social media messages under freedom of information legislation.
Scotland’s former information watchdog Professor Kevin Dunion told MSPs that “the law is clear” on what officials have to hand over if it falls under an FoI request.
However Prof Dunion said he had never seen any text, WhatsApp or personal email information released in response to an FoI request, suggesting illegality was taking place.
His comments came as he gave evidence on Scotland’s FoI laws to a Holyrood committee.
Nicola Sturgeon’s official spokesman recently said the First Minister did not use her official email, far less social media messages, despite her being an avid Twitter user.
Labour MSP Anas Sarwar argued discussions of official business on unofficial channels “undoubtedly happen”.
Prof Dunion, now head of the Standards Commission for Scotland, said: “Anyone found to have withheld information contrary to the FoI laws could face a £5,000 fine.
“They have broken the law if they deny they have the information within the scope of the request and the note exists in whatever form - whether it’s sitting in their briefcase or sitting in their Hotmail account.
“If an FoI request comes in and you don’t disclose the fact that you hold the information on that device, you are in danger of being prosecuted for obstructing the release of information.
“My concern, therefore, is that this is not being readily understood and people are endangering themselves by thinking they are getting around the law by doing that.”
Although the law allows personal devices potentially used for official business to be searched in relation to an FOI request, Prof Dunion suggested there would need to be evidence it had taken place and was “not something an information commissioner would do lightly”.
He said he feared people in the public sector had a “temptation” to get round the law by not recording or deleting official data.
“When I was commissioner I did come across an authority where they actively went out of their way to instruct staff not to write anything down, to verbally brief their colleagues if they came back from a meeting, and to remove all their diary entries once their expenses claims had been submitted,” he said.
“That quite clearly was intended to frustrate freedom of information.
“Some of that gaming of the system will go on.”
Witnesses also spoke in favour of extending FoI laws to cover private companies who are carrying out public services, such as healthcare contractors, education firms and care homes.
Law lecturer Dr Karen McCullagh explained how many other countries - including Ireland - have the power to make private firms comply with FoI laws.
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