There is a concept used in the building trade someone told me about – Catnap. It stands for Cheapest Available Technology Narrowly Avoiding Prosecution and while I don’t know how widely the term is used, the mindset it describes is one I know prevails (a friend of mine refers to a Tree Preservation Order a ‘tree removal tax’ because the fine is only £5k).
The key thing about Catnap is the second part. If this was ‘cheapest legal technology’ we’d be in one place, but that is not the mindset. The mindset is about precisely how much you can break the law before anyone takes action against you, and since every government I’ve known is always ‘cutting red tape’, we can be confident that the threshold for action is high.
Now let me introduce you to a new concept I’m going to call Morolaw, or Most Obstructive Response that Only Leads to A Warning. Because that is becoming the driving philosophy of the Scottish Government.
I’ve been dealing with FoI issues since before they were even a law (I was lead for the universities in lobbying over the draft legislation) so one way or another I have a reasonable awareness of how they have been working. And until recently the answer was ‘pretty well’.
I am wracking by brains to try and remember an instances in the first 15 years of devolution where I saw an FoI response and felt it was unreasonably obstructive because of redaction or exemption. That doesn’t mean I was happy – I’m a full disclosure kind of guy and so for example don’t think commercial confidentiality should be a (permanent) exemption when it comes to the use of public money.
What I mean is that over that time, within the system as it was set up and the remit of the legislation as passed, I seldom thought the responses that came from government were unreasonable or outside the spirit of the legislation. It could sometimes be frustrating, but it was seldom enraging.
I can’t even begin to say that now. Every single FoI reply I can think of having seen in as long as I can remember has been utterly littered with cheats and tricks and obstructions which are very clearly outside the spirit of the Act.
Worse, everyone but everyone knows this is happening, but they also know there is nothing much that can be done about it. If you submit a Freedom of Information Request now on any subject that could embarrass the Government, you need to strap in for a long process.
Because the Scottish Government is treating an appeal to the Commissioner as a mandatory third stage of an FoI request for information which might embarrass it, the Information Commissioner is overwhelmed
First, you cannot expect the initial response to come in inside the legal deadline. They just send it late at will – as long (mostly) as it is not so late they’ll end up in court. No-one has the resource to take action on this habitual refusal to meet the law (which is what that is), so you just have to accept it.
Then you’ll find out that you’re staring at multiple sheets of paper with explanations of why you’re not getting the information. The exemptions used will often be entirely spurious – we’ve seen entire correspondence exempted because one person’s email address was visible so a ‘data protection’ exemption was used. They literally don’t care at this stage.
Anything they can’t exempt they’ll just redact, so in between the cut-and-paste list of exemptions you’ll need to read through, you’ll find lots and lots of black redactions. Again, I am struggling to remember a time in the early days of devolution when even a controversial request came back largely blacked out.
But it’s not worth getting too hung up about this because you’re now in what is effectively ‘mandatory stage two in trying to find out something the government doesn’t want you to find out’ which is appealing their decision to them. You get 40 days to write an appeal, they get another 20 days to tell you to fuck off. If they do it in time of course.
Realistically, you’re now four months into the process and this is the first time you can appeal to anyone who isn’t the person you’re appealing against. You can now take this to the Information Commissioner. On the upside, he is very good and is robust in upholding your right to information as a citizen.
On the downside, because the Scottish Government is treating an appeal to the Commissioner as a mandatory third stage of an FoI request for information which might embarrass it, the Information Commissioner is overwhelmed. The number of appeals he is dealing with have more or less doubled since John Swinney took office, and they were rising rapidly before that.
He describes the situation in his organisation as ‘to the bone’ and they are now having to ration how many they can look at. The Office of the Information Commissioner needs three times the funding it is getting, but its funding is set by the Scottish Parliament Corporate Body and that opaque committee doesn’t give the impression of caring much.
Of course, if you do get through the initial submission, the initial appeal, the appeal to the Information Commissioner, he is able to actually look at your appeal and then he rules in your favour, this does not mean you are going to get the information. Because now the Scottish Government can appeal your appeal.
I can’t keep going round this Kafkaesque process much more here other than to point out that you can already have a successful appeal by the Information Commissioner in your hand which he has upheld after appeal, and you can also have a Judicial Review instructing the Government to hand it over and you can be past the legal deadline for that and they might still tell you to fuck off.
Why? Because at this stage in Scotland’s devolution era the Scottish Government gives little sign of caring much even when it is found in contempt of court. For me that should scream ‘powerful actors committing crimes must face powerful consequences’, but all of the above happened and the Scottish Government got nothing more than a slap on the wrist.
Think of it like a Tree Preservation Order – take your slap on the wrist and you can obstruct information for literally years. And yes, all of this is expensive, but those being found in contempt of court don’t actually pay for any of this, you do.
It is almost as if the Scottish Government now refuses to recognise the FoI Act when it inconvenient
The reason I’m feeling this particularly now is that we’re on the wrong end of this one again. We know for almost certain that the Scottish Government pulled its ludicrous ‘First Homes Fund’ out its arse with no impact assessment purely because it had no election campaign so needed some kind of giveaway. We know the impact assessment would say ‘will make the housing crisis worse’.
So we submitted an FoI and got back dozens of pages of excuses for why they wouldn’t give us this information. Worse still, we assumed that would happen when we submitted the initial request. Worse than that, we knew we’d need to appeal – and then appeal to the Standards Commissioner because we never at any point thought the Government would act in good faith. Obstruction is normalised for everyone involved.
They did the same when we tried to show that they also pulled their Council Tax Freeze policy out their ass with no impact assessment and we got the same result. We’ll do the same for the ‘free school bags’ and expect the same. All these are piss-poor policy making, done on an expensive whim for electoral gain, none properly considered.
But because the Scottish Government can just obstruct the public from knowing this it will without real consequence, it does. Like so much in Scottish officialdom, this has gotten out of hand. It is almost as if the Scottish Government now refuses to recognise the FoI Act when it inconvenient.
The problem is that I don’t really trust any of the politicians on this. We worked extensively with Labour backbencher Katy Clarke on extensive reforms to FoI which would close down a lot of these loopholes but the SNP did everything in its power to obstruct it and cause it to time out.
I can go through an explanation of why this has happened (it really started to balloon because Nicola Sturgeon played fast and loose with rules and procedures and spent more time covering things up than getting them right in the first place, and John Swinney is by nature a party hack who has always been the SNP’s cover-up man).
But it won’t help here. The only thing that will help is to focus on this reality – the only people who can clean up the behaviour of politics is the politicians. All the above abuses of the system could be brought to an end swiftly by any parliament with the will to do so.
Unfortunately, as I am trying to document extensively, Scottish officialdom is way past the point of honest straight dealing and well into its ‘cover up of the cover the cover up’ stage. As a result, you don’t get to know the information on which your government operates.
Scotland needs a major political reformation. That will require either an enlightened group of politicians to take power or a public rebellion. In the meantime, we can only guess at how bad policy-making in Scotland really is if this is how hard they are trying to hide it.