Retaining, storing and managing the WhatsApp messages of ministers and civil servants to ensure the public record is accurate is hardly rocket science.
Instead, the simple administrative process of copying content into the official systems has exposed the everyday roadblocks to transparency, accountability and scrutiny.
The UK Covid Inquiry has used its power to compel the production of Scottish government WhatsApp messages but the public, journalists and campaigning organisations rely on the enforceable right to access information to equalise the ability to scrutinise decisions. However, by stealth, FoI rights have become weaker and it is essential that robust legal reform fixes the problems.
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When the Freedom of Information (Scotland) Act was passed in 2002 (FoISA), there was an expectation that the legal architecture would prevail when politicians and public servants tried to operate secretly and culture would change tilting towards a presumption of openness.
FoISA enables the public to enforce the right to access information from designated public bodies such as government, the police, councils and health boards. There are also duties on those bodies to pro-actively publish information. The process is generally free and appealing to the independent Scottish Information Commissioner is free too.
More than 84,000 information requests were made in 2022-2023 and appeals to the Commissioner amounted to 527. Inevitably, and after 22 years, technological changes, obvious procedural loopholes, disagreements over the effect of provisions, the systematic loss of FoI rights through diversifying how public services are delivered and ‘new ways of working’ have prompted a sustained campaign to reform FoISA.
So far, the Scottish Government has resisted so Katy Clark MSP launched her own consultation on detailed legal reform and an announcement on next steps is imminent.
What information is gathered and how decisions are made is explicitly covered under FoISA through the Model Publication Scheme issued by the Commissioner. It has been accepted by over 10,000 bodies, the biggest category group being GP practices.
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There are nine broad categories describing the types of information authorities must publish, if the information is “held” and Class 3 is “How we take decisions and what we have decided".
In practice, that means “information about the decisions we take, how we make decisions and how we involve others.” Each body must publish and maintain a Guide to Information so the public can check out what information is routinely easily available. Given the law, why is disclosing WhatsApp messages so problematic? We have known of the problem for years.
In June 2017, the Scottish Parliament voted unanimously for post legislative scrutiny of FoISA and the subsequent inquiry confirmed fixing the issues can’t be solved by a few administrative changes.
Nearly 60 submissions and five evidence sessions drew on the expertise of public servants, campaigners, politicians and the independent Commissioner.
When the Minister gave evidence in December 2019, MSPs raised the use of WhatsApp messaging. The Minister was keen to reassure MSPs that if WhatsApp was being used for Government business the information “would be captured” and disclosed under FoISA. Subsequently, the Minister wrote to the Committee and confirmed that Ministers, Special Advisers and their offices are aware that any information communicated via WhatsApp is subject to FoISA, wherever it relates to the work of the Scottish Government.
Despite a thorough inquiry report published in May 2020, the Scottish Government has resisted substantial legal reform although it did launch a consultation in 2022 as it promised to do so. However, no FoISA aAmendment Bill was included in its 2023 Programme for Government.
Since 2007, the Scottish Government has adopted the approach set down in its six FoI principles that it “operates within” FoISA the Freedom of Information (Scotland) Act 2002 “rather than proposing significant changes to it, but adjusts the regime where it is necessary and sensible to do so. … We will keep the Act under review by promoting good practice within existing frameworks and considering extending coverage.”
So what can we learn from the Scottish Government’s “good practice”?
When Covid hit and lockdown commenced, FoISA rights were immediately curtailed with response times extended from 20 to 60 working days.
Fortunately, two months later MSPs reversed the damage but the legacy was a post bag of delayed requests. There is also the Commissioner’s formal intervention into the Scottish Government due to poor FoI performance, commenced in 2018, and the latest report published in October revealed a dismal state of affairs. The Commissioner was had been so concerned about performance that he initiated a meeting with the Permanent Secretary and senior officials to secure “urgent action” in March 2023.
It resulted in significant improvements but the Commissioner notes that “standards of compliance with internal records management procedures and the degree of FOI experience and expertise of those involved in the request-handling process” remain as matters of concern. Scottish Ministers are required to lay a report before the Parliament every two years about the exercise of the section 5 power, which allows them to designate more bodies under FoISA.
The last two reports, covering 2019-2023, confirmed the power is unused despite sustained calls for the private and third sectors to be designated when they are delivering public services and services of a public nature such as care homes.
The change that has happened is a consequence of another measure: as ScotRail Trains and Caledonian Sleeper are now provided within the public sector, by an arm’s length company owned and controlled by the Scottish Government, they are automatically subject to FOISA.
Given the compelling evidence, it is in all our interests to reform FoISA.
Carole Ewart is the Director of the Campaign for Freedom of Information Scotland
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