Freedom of Information has been achieved, but is a right that must still be fought for if it is to stay with us. Steven Raeburn met Information Commissioner Kevin Dunion, fighting to make sure you will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered.

Keen eyed readers of The Firm may remember that we had some difficulty fixing a meeting with Scotland’s Information Commissioner Kevin Dunion, despite the will of both Dunion and The Firm to make it happen. However, having cleared the organisational hurdle, we are pleased to have now had the chance to sit down for a cosy chat at his office in St Andrews as the annual report on Freedom of Information was published, to find out how well the public authorities in Scotland have adapted to the reality of our new right to know.

Dunion’s role as commissioner is a complex one, obliging him to provide on one hand an independent route of appeal if an authority believes there is an argument for not disclosing information it holds, which on the other allows him to set benchmark parameters that have established how FOI works in practice.

“There is no obligation on me to publish decisions under the legislation, but I have chosen to do so because I think it is good practice,” he says.

“It also builds up a small jurisprudence about how the act is to be interpreted.  In the absence of that, public authorities could still be wrangling over the same issues ten or fifteen years on.”

Whilst in principle FOI is almost inarguably a good idea, and has been adopted with surprising ease, in practice there remain considerable frictions that have characterised the difficulties in implementing an open regime.

“It would be over-egging it to say we have enormous enthusiasm from public authorities. Some clearly believe it absorbs resources that could be used elsewhere,” he says.

“Across the world, governments often bring FOI because of enormous pressure: some scandal has erupted, and the remedy for that is increased transparency. We are seeing some of that down south, perhaps. You get that spasm where FOI is part of a remedy, not just as part of a moral conviction that it is a good thing in its own right. 

“Local authorities and government have always been very open. They have agreed that FOI has enshrined that into a rights-based culture, but by and large it is business as usual. Although it has been driven way beyond their comfort area and can be quite intrusive; memoranda from named members of staff would never have come out in the past. They still find that quite difficult. It can be embarrassing. Not every email is crafted and honed, they are dashed off, and only enters the public domain through FOI. But a degree of embarrassment is not any reason to withhold it.”

Anecdotally, The Firm has been told that, perhaps due to institutional paranoia, some authorities are routinely destroying as much of their day to day admin as is possible to avoid later disclosure. It is a difficult practice to overcome in the absence of any legal requirement to formally archive material.

“In any major decision taken by a public authority there should be a paper trail. One thing we are missing in Scotland is that we don’t have any kind of public records act. I think we need a public records act that says, at the very minimum, what we would expect to keep,” Dunion says.

“There is still no requirement on those authorities to create a record, maintain a record or retain a record.”

The result is what Dunion describes as a form of administrative constipation which gives public servants a moment of pause before they act or give advice. This is, Dunion argues, the very point of the act, as the persistent arguments over the publication of legal advice ahead of the Iraqi invasion proves.

“Putting out any kind of advice -innocuous or sensitive- means civil servants now think twice about giving advice to ministers because they fear what might happen. My view is, that is what FOI was intended to do. In four years since FOI, if it has not already affected your thinking, there is something far wrong. I now assume that they write all their advice in the knowledge that it may go into the public domain,” he says.

The Firm met with Dunion just as the tide of Westminster expenses revelations was easing, a process that arose out of an original information request that was made by Heather Brook, an American journalist, who persisted all the way through to the High Court against the resistance of MPs and an entrenched intransigence personified by former Speaker Michael Martin who, along with many MPs, appeared to simply believe the pattern of behaviour was the done thing, which the public were not entitled to know about.

“You have a strong culture of official secrecy, which is heavily ingrained in the British Civil Service, and has percolated out into public servants,” Dunion observes.

“There were very few prosecutions under the official secrets act, but it created that type of mindset. Alongside that is the notion of Parliamentary sovereignty, and a large part of that is the ‘impertinence’ of the public and the press holding them to account, and that somehow they are above all of that. And indeed they sought to put themselves above all that with the Maclean bill (to exempt Parliament from FOI)  which actually passed in the House of Commons. It was the Lords thankfully (and ironically) who preserved democracy by throwing it out.

“In Scotland the Parliamentary authorities were acutely aware of what had to be done. What they didn’t want was to see a drip drip drip of information everyday as we saw later with The Telegraph. I said to them that they should publish expenses every three months, meaning they wouldn’t have to deal with individual requests if they undertook to publish everything at the same time. That way you get ahead of it. George Reid was incredibly decisive about this, contrasting with Michael Martin.”

Dunion is an encouraging champion of FOI, and evidently a fair exponent of application, but he acknowledges that we may have already passed through a “golden period”, as more and more functions formerly executed by public authorities are sub-contracted out to private companies, with neither the inclination nor the obligation to assist the public, who are contractually distanced from the end-user of their service.

“What constitutes a public authority is changing, and the act applies only to those bodies listed in the legislation. If those bodies now contract out their services to private contractors, the FOI can’t go there, or can only go there marginally,” Dunion says.

“An agenda for increased value and efficiency requires authorities to contract out to DLOs for the best value. That comes at the cost of the capacity of the public to directly influence that. You as an individual can’t hold that provider to account. At the very time we actually secured rights, we have had a golden period of three or four years where we could exercise it, then suddenly large parts of that public service is outside of the scope of the legislation.”

It could be argued that much of the friction in modern society has its origins right there. There can be an intangible sense of grievance arising from an encounter with any of these organisations, a sense of powerlessness which is hard to identify or articulate, that dissipates into the vague sense of unease that people have with modern life. Perhaps it is here where the energies of legislation ought to be directed next.