by Walter Humes 1 Oct 2015 Scottish Review

Diary Entry, Monday 21 September

For some time I have been copied into email exchanges concerning how complaints against public bodies are dealt with. I have no personal stake in any of the specific sources of concern (which include patient care in the NHS and responses by Police Scotland, the Scottish Government and the Crown Office and Procurator Fiscal Service (COPFS) to requests for formal investigations). I do, however, have a long-standing interest in issues of public accountability and am familiar with the various techniques used by bureaucratic organisations to avoid responsibility when things go wrong: these include silence, delay, evasion, buck-passing and attempts to discredit complainants.

The latest exchanges in the e-mail thread encouraged me to have a look at the website of the Scottish Information Commissioner. Members of the public who seek information from public bodies under the Freedom of Information (FOI) Act, but who are dissatisfied with the response they receive, can appeal to the Commissioner. The current commissioner is Rosemary Agnew, who is supported by a staff of 21. In 2014/15 they had to deal with some 474 appeals. In 64% of cases the commissioner found either wholly or in part in favour of the complainants. The reasons given by authorities for declining some FOI requests are interesting. They include claims that to provide the information would entail excessive cost and that some requests are considered 'vexatious’ or 'manifestly unreasonable’. The sectors which attract most appeals are local authorities, the Scottish Government (and its various agencies), the police and the NHS.

The annual reports of the commissioner contain a substantial amount of interesting data but, to gain a deeper insight into the way the system works, it is also necessary to look at accounts of individual cases. What emerges from these is how highly procedural the process is. Sustaining or rejecting an appeal depends on whether the letter of the law has been followed (in terms, for example, of whether the time scale for responding to requests has been followed) rather than on the merits of the case. This could disadvantage complainants who may have a just concern but who are unfamiliar with the way bureaucracies operate.

It is also evident that organisations are becoming adept at finding ways of avoiding censure. In some instances they are allowed to refuse to confirm or deny whether they hold particular information. I suspect too that certain organisations are reviewing their policies on the disposal of records. One appeal related to material held by a public body which had undergone restructuring and been renamed. The new agency claimed that it had carried out a search but had been unable to locate the material sought. The commissioner had no alternative but to accept this account.

Those who hold high office in public bodies are very adept at defending their own interests. They may claim to support openness and transparency but those principles are not always translated into practice. Bureaucratic Scotland often falls short of the democratic ideals which are said to underpin civic life.