Freedom of Information legislation has gone a long way to unblock the constipated communication rectums of Government. But some remain determined to stay puckered up tight. The Firm finds commissioner Kevin Dunion is dishing out the Immodium whether they like it or not.

It shouldn’t be difficult, but yet it still is. They are our government, our councils, our police stations, and it is our information they hold on our behalf. Each man and woman who works there are our proxies, whom we used to call civil servants. Civility and servitude died along with bus conductors and typewriters in some corners of what the Law Society call “civic Scotland”, and perhaps nowhere more so than in the Scottish Government, whose attitude towards information liberalisation can at best be described as obtuse, and at worst, paranoid. For it is they no less who are locked in litigation over their refusal to accept the validity of requests for information put to them, on the bizarre technical argument that the request made to Glasgow City Council did not ask for “information”, but rather for specific correspondence. In other words, the “document.” This, the Scottish Government argue on their behalf, didn’t count. You might get the words, but not the paper.

That a purportedly responsible body whose multi million pound budget shepherds the livelihoods of hundreds of thousands of people should adopt such an argument (which gives dancing on a pinhead a bad name) is frankly discouraging. Kevin Dunion, Scotland’s Information Commissioner is charged with adjudicating on questions of validity, and after five years since the advent of FOI, he wonders at this late stage what it is organs of state think they have to fear.

“After 5 years and a thousand formal decisions, the question I am asking now is, what is the harm?” he told the Firm.

“When that case came to court, one of the conclusions of the opinion by Lord Reed was that FOI gave an entitlement to information, not to documents. Our guidance has always said that. We think it has been interpreted quite narrowly. If you absolutely insist on having a facsimile of a document, that might be challenged by the authorities. However, it is quite clear that the act entitles you to all of the information contained in that document.”

Dunion also points out that, aside from being pedantic, in many cases it is difficult to obtain information in many cases, without having sight of it in its original form. And it can be overly burdensome on a council to expect them to undertake the interpretation for you and re-hash the information in another form.

“Since information can be read to mean things like graphics, video, CCTV footage, it is quite difficult to see how you could get the information from film or a photograph without getting the document, if you like. Secondly, in respect of information contained in a contract, sometimes you get all of that information fully. In most circumstances an authority would rather give you a copy of the document, rather than extract the information.”

The case Dunion awaits the outcome on is one that highlights a persistent difficulty with the application of FOI legislation; the resistance and reluctance from authorities to embrace a culture of openness, contrary to their default culture of secrecy. The information/documents conundrum, whilst on one level somewhat petty and pedantic, is the act of a body that is desperately trying to prevent the inward roll of the tide, for reasons that appear spurious, if not ridiculous.It hardly seems credible that responsible government could believe such a stance could be sustainable. Whether or not the argument is a fig leaf covering up a more withered cultural deficiency, the Information Commissioner is not prepared to tolerate such naked stonewalling.

“The Scottish Government determined that in their view a number of requests for information - which are on appeal to me, which had asked for documents, a copy of something- were essentially requests for documents and not for information and should therefore be regarded as invalid,” Dunion says.

“I took an entirely different view and issued guidance that said to my mind those were valid information requests, so long as it was clear to the authority that what was requested was the information in that document. People shouldn’t have to go through a very formulaic rote of saying “please give me all the information contained in a contract,” when it is quite clear that if they ask for a contract they meant they want the information.”

Despite having previously reached what Dunion calls a shared understanding with the Scottish Government in a general sense regarding FOI, the default refusal to engage cooperatively has “reared its head again,” and Dunion argues that the public‘s right to know what they want to know is too fundamental to be dismissed. The edifice of resistance is gradually crumbling.

“We have successfully argued in front of the court that the issues we raised are of such broad import in terms of the working of the legislation and people’s understanding of their entitlement, that that case shouldn’t go to the back of the queue. It can take 15 months to get into the court of session. Lord Clark agreed it should go for early disposal, so we’ll get that hearing in July, unless the Scottish Government amends its grounds of appeal. With the exception of just a couple, no other authority is taking the stand taken by the Scottish Government.”

That this may be not only against the letter, but counter to the spirit of the legislation is apparent to Dunion, and he believes the factual position is black and white, despite a position that could be construed as a spoiler.

“I’m not going to argue that it is counter to the spirit of the legislation. I’m going to argue that it is contrary to the legislation,” he says.

“The counter argument from the government is that it is taking a view that they have a legal obligation under the statute to provide a response, and therefore they want clarity as to what that statute actually means. If the authority is genuinely not clear what the applicant is looking for, they shouldn’t simply refuse the information. People may not know when they make a request that it might encompass hundreds of documents that could be held in different locations. So people genuinely in my experience are happy to have a dialogue with the local authority to narrow that down.”

The prevailing wind of FOI is strengthening rather than weakening, making the somewhat isolated position adopted by the Scottish Government look like a last stand, which may well be the intention, particularly given the inevitable and imminent extension of FOI to the types of organisations that historically were formerly part of the civil service, but which have become used to trading privately and at arms length since the advent of compulsory competitive tendering, privatisation and PPP. The Government intends to initiate consultation on extending the legislation to include arms length organisations, and bringing organisations such as housing associations under the Act, some of which have come under fire for engaging in opaque and allegedly nefarious contracts. Dunion says the drift and direction of FOI on the whole demonstrates that there is a positive attitude towards it in the majority of instances and with most authorities, and that FOI is currently in a “maturing stage” where authorities now want to be clear about the obligations placed upon them. The dawn of FOI is almost having its day.

“That was meant to bring in a culture of openness and overcome a culture of secrecy [we are looking at you, Crown Office], and sometime authorities baulk at that kind of phraseology, but that phraseology came from Jim Wallace, the advocate general, and the same language was used down south by Charlie Falconer,” Dunion says.

“We are now carrying out a series of assessments looking at general compliance and general attitude. After 5 years and a thousand formal decisions, the question I am asking now is, what is the harm? It might not have been unreasonable at the outset for local authorities to assert a certain harm to the giving of advice or the ability to procure contracts. But now we have these hundreds and hundreds of decisions about the release of information. It should be evident whether or not the harm has come about.

“Nobody is coming to me and saying they have been unable to procure or tender a contract successfully because of FOI. There is no evidence of a chilling effect, and UCL has carried out an extensive survey of central and local government, and cannot find any evidence that officials are not proffering thorough advice to politicians. We see no evidence or harm to law enforcement or personal safety from the release of statistics on police performance. All of the claims of harm made to me, if they were true, should have happened by now. The challenge I am making to local authorities is to relax. Relax into a culture of openness.”