THE First Minister’s powers to block the release of “sensitive” government files could be removed, Scotland’s Freedom of Information (FOI) watchdog has said.

FOI law allows the office of the First Minister to overrule decisions by the Scottish Information Commissioner (SIC) to order the release of documents if she considers the information to be of “exceptional sensitivity”.

SIC Daren Fitzhenry, who was appointed in October 2017, said although the “veto” of his rulings hasn’t yet been used, the power to use it could be taken away from the First Minister’s office as a "statement of intent".

He is currently investigating the Scottish Government’s handling of FOI requests and told an FOI practitioner’s conference his report will be released “by the end of May or early June”.

Speaking at the event ‘Future proofing FOI: Does FOI go far enough?’ held at the University of Dundee on May 8, Fitzhenry said: “One of the specific provisions which I think would be worthy of a look is the section 52 veto. This is a provision whereby the First Minister can determine, in relation to the Scottish Executive, a decision of the commissioner can be overruled and can be vetoed by the First Minister.”

FOI law, introduced in 2002, allows people access to information – such as emails, expenses costs and minutes of top-level meetings – held by most public bodies in Scotland, including the Scottish Government, subject to a limited range of exemptions.

However, the First Minister can issue a signed certificate to the SIC which states information must not be released because it is “of exceptional sensitivity”.

Fitzhenry said a similar exemption in UK law has been used by UK Government ministers “on a number of occasions” but the First Minister’s office has not yet used the veto.

The UK Government has blocked the release of information about the invasion of Iraq, the value for money of the planned high-speed railway known as HS2, and the risks of NHS reforms in England.

Speaking to FOI practitioners at Tuesday’s conference in Dundee, Fitzhenry said: “I think, almost as a statement of intent, it would be interesting to look at that provision to determine is there actually still a place for that [veto] in Scotland of today or is it really an anomaly of an untried system that legislators weren’t quite sure about and they just wanted a bit of additional protection. Has that time for the provision gone, particularly given it has not been used in Scotland?”

As Scottish Information Commissioner, Fitzhenry is responsible for the enforcement and promotion of Scotland’s FOI laws.

His office launched an investigation into the Scottish Government’s FOI record after complaints by journalists that responses to information requests were “repeatedly delayed” and “blocked or refused for tenuous reasons”.

In an open letter to MSPs published in June last year, journalists also said requests were screened for “potential political damage” by political special advisers (SpAds) who work for ministers.

It later emerged that SpAds ordered apolitical civil servants to delete emails with SpAds about FOI answers “immediately”.

When the SIC appeared at Holyrood’s public audit committee to discuss FOI law in March, he suggested there should be a review of the legislation.

Fitzhenry said: “Is there something that can be improved in the system? I have no doubt about that. Would it be useful to have a review of the system? I think it certainly would.”

A Scottish Government spokesman said: “The power to override a decision or enforcement notice issued by the Scottish Information Commissioner has never been used in Scotland. This is in contrast to successive UK Governments which have used veto powers on a number of occasions under UK Freedom of Information (FOI) legislation.”

PRESSURE MOUNTS ON SCOTTISH GOVERNMENT OVER HANDLING OF FOI REQUESTS

May 2017

MSPs are sent an open letter signed by Scottish journalists calling for a review of Scottish Government handling of Freedom of Information requests. They claim that there has been “screening” by senior government advisers for “potential political damage”, requests blocked, refused or delayed for “tenuous reasons”, and Scottish Government officials taking control of requests to other government agencies without the consent of those asking for information. The letter prompted two debates in the Scottish Parliament.

November 2017

Scottish Information Commissioner (SIC) Daren Fitzhenry launches an investigation into whether the Scottish Government blocked or delayed freedom of information requests. He revealed the intervention into “issues of culture and practice” raised by journalists and MSPs in a letter to Scottish Government minister for parliamentary business Joe Fitzpatrick.

February 2018

The SIC announces the investigation will include the handling of FOI requests by the office of Deputy First Minister John Swinney. In a letter to Liberal Democrat MSP Tavish Scott, Fitzhenry confirmed the case would form part of a wider review into the Scottish Government’s handling of FOI requests. Fitzhenry had been asked to examine whether a request from John Swinney and his special adviser Colin McAllister led to information being withheld from an FOI release.

March 2018

The SIC tells MSPs he thinks a review of existing FOI legislation would be “useful”. Appearing at Holyrood’s public audit committee to discuss the operation of the 2002 Freedom of Information (Scotland) Act, Fitzhenry said: “I think if we don’t look at the criticisms being levied and seek to improve the system, then the system will get worse and it will get out of touch. Being the regulator of that system, that’s not a position I would like the system to get into.” Fitzhenry is expected to release the finding of his probe into the Scottish Government’s handling of FOI requests by the end of May or early June.