A LABOUR peer has called on the freedom of information tsar to resign after her office said she would delay “critical” decisions on the SNP Government until after the election.
Lord Foulkes said Scotland’s Information Commissioner Rosemary Agnew should “consider her position” as her vital role was now “jeopardised”.
Agnew, who has been in post since 2012, rules on FOI disputes between individuals and hundreds of public bodies north of the Border.
Purdah rules, which place restrictions on the use of public resources during an election campaign, do not apply to the SIC and she can publish her rulings at any time.
However, the Sunday Herald revealed how applicant James McEnaney, a candidate for the left-wing RISE party, was told a case he raised on the SNP Government’s controversial plan for testing in schools would be shelved.
A staffer for the Commissioner wrote to him: “Although it [purdah] does not affect the Scottish Information Commissioner directly, she has decided not to issue any decisions which might put forward a critical view of the Ministers.
“In discussion with the Head of Enforcement, it has been decided to delay the issue of the decision on your case until after 5 May 2016.”
The watchdog clarified its stance to McEnaney, but a political row broke out and the commissioner contacted Holyrood’s Presiding Officer to explain her position.
She wrote: “This statement [to you] concerns an email, sent by this office, referring to delaying decisions which are critical of Ministers until after the election. This email was the result of a breakdown in internal communications, for which I take full responsibility.
“I am proud of the impartiality of this office, and deeply regret that something as basic as a breakdown of internal communications has resulted in the current situation.”
She added: “I can assure Parliament that I have not, and will not delay issuing decisions simply because they are critical of Ministers (or any other Scottish public authority).”
However, she revealed that “guidance” had been sent to all SIC staff on March 16th on the purdah issue.
It read: “During this time, we should avoid doing anything which could distract attention from or compete with the election campaign. This affects all of us – although decisions are likely to be the most risk, particularly if the decision is very critical of the Scottish Government and deals with a high profile matter.
“If you have a case which you think falls into this category, please let the Head of Enforcement or a Deputy Head of Enforcement know asap. The options would be to try and get the decision issued by 23 March or to delay it until after the election. If we delay the decision, we need to let the applicant know and why.”
She also informed the Presiding Officer that she had delayed three judgements relating to the Scottish Government in the run-up to independence referendum.
The decisions concerned spending incurred at the 2012 Ryder Cup, former First Minister Alex Salmond’s expenditure on travel and subsistence cards, and information on higher education in an independent Scotland.
Lord Foulkes, who is a former Labour MP and MSP, told this newspaper: “Once the Scottish Information Commissioner is appointed, she is supposed to be totally independent. Once there are examples of political partiality, then that person has lost any credibility or respect.
“Now that the commissioner has confirmed delaying cases in the run-up to the referendum, it is clear her own position is jeopardised. I think she should consider her position. She’s in a very difficult situation.”
McEnaney said: “Following the release of her statement on Wednesday of last week it is now beyond doubt that the Scottish Information Commissioner thinks it acceptable to allow political considerations to influence her decision-making process.
“There is no justifiable basis for withholding information deemed to be in the public interest during an election campaign - in doing so Rosemary Agnew has potentially politicised her role and seriously undermined the principle of democratic accountability.
“She has attempted to draw a line under a controversy which simply will not go away until full confidence in the impartiality of her office is restored.
“We are therefore reiterating our calls for a full, independent inquiry into the conduct of the Scottish Information Commissioner.
“If satisfactory answers to ongoing public concerns are not forthcoming then this clearly has the potential to become a resignation issue.”
The SIC's office did not provide comment.
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