The FoI rulings that left a mark on public life

MSPs’ expenses

In October 2005, the commissioner ordered disclosure of David McLetchie’s travel expenses. What the Sunday Herald revealed about his use of taxis led him to resign as Scottish Tory leader. It it also had far wider implications for Scottish politics.

The Scottish Parliament decided to go for maximum disclosure: voters can now access a wealth of detail on MSPs’ allowances and expenses.

In contrast, the reaction at Westminster to a similar ruling by the UK Commissioner was to fight it every inch of the way.

The House of Commons twice sought to remove itself from FoI legislation and then passed a statutory instrument exempting residential addresses, travel arrangements and the identity of providers of goods and service.

Under this cloak, MPs carried on extravagant practices and dubious tactics such as “flipping” addresses to maximise claims, until a Westminster mole leaked details to a newspaper.

The resulting furore hugely damaged the reputation of MPs, which has been avoided at Holyrood by the decision to opt for a much more open system.

Surgeons’ mortality rates

The decision in December 2005 to order the NHS’s Common Services Agency to release information on the mortality rates of surgeons in Scotland was the first such comprehensive disclosure anywhere in the world.

The authorities argued this would amount to a breach of the Data Protection Act, but the commissioner dismissed this as the information related to surgeons’ professional, not private, lives.

The details included the names of surgeons, their speciality, the hospital they work in, the number of patients operated on annually, and mortality rates. The NHS across the UK has followed suit.

Job grading

When a burial clerk in Aberdeenshire asked how a job regrading had been decided, the council refused to release the information, arguing it would cause substantial harm to the way it went about its business.

In February 2006, the commissioner ruled that disclosure would not cause the amount of harm predicted, a decision that meant regradings across the public sector were as open and accountable as possible.

Child detention at Dungavel

The controversial practice of detaining children at the immigration removal centre in Lanarkshire came to a head when a researcher for SNP MSP Christine Grahame asked for copies of communications between the Scottish Executive and the Home Office. The executive argued this would be against the public interest, because disclosure would prejudice substantially its relations with the Home Office.

While letting some documents be withheld, in September 2006 the commissioner ordered the release of others, saying in a landmark ruling: “I have recognised that co-operative and constructive relationships between central government and the various devolved administrations are important, given the UK’s constitutional arrangements.

“However, this does not mean that information should be withheld in circumstances where any of the administrations would simply prefer it not to be released, or where disclosure might cause a degree of irritation or embarrassment.”

He added: “I have concluded that substantial harm would not be caused … by the disclosure of a number of documents. As a consequence, release of this information will provide some insight into the nature of the exchanges that took place between the Home Office and the executive.”

PFI contracts

Unison shop steward May Docherty asked to see the contract for the controversial PFI deal with the Consort Healthcare consortium to build and operate the new Edinburgh Royal Infirmary, but NHS Lothian refused, citing commercial confidentiality.

The commissioner rejected this blanket claim and ordered full disclosure in October 2007.

The commissioner ruled: “Other than broadly indicating why Consort Healthcare did not wish the information disclosed, NHS Lothian provided me with virtually no arguments to justify withholding the contract.”

This set a precedent for PFI/PPP deals that no blanket justification for non-disclosure exists, and that the case for commercial confidentiality must be made. Six months ago the commis­sioner ordered release of the financial model in the PFI contract for running Kilmarnock Prison.

Murder investigation

In October 2007, Tayside Police were ordered to release files relating to an unsolved murder in Broughty Ferry in 1912. While accepting investigation files are usually exempt so as not to prejudice inquiries, in this historic case it was clear that no-one would stand trial for the murder of Jean Milne and few if any witnesses would still be alive, so the files should be released.

Nuclear power

Using both the FoI law and its sister legislation, the Environmental Information (Scotland) Regulations, the Sunday Herald’s Rob Edwards won a ruling in March 2008 that Scottish ministers must release correspondence with the Westminster Government on the issue of new nuclear power stations or the extension of the life of existing nuclear stations.

This information proved that Scottish ministers had the ability to block the building of any new nuclear power stations north of the Border.

Personal stake in public information

Personal tragedy or adversity has often been the trigger for people to use freedom of information law.

Michelle Stewart and Helen McGinty collected the public campaign award at The Herald Politician of the Year ceremony, on behalf of the C Diff Justice Group, in recognition of its response to the outbreak of the disease at the Vale of Leven Hospital. Helen’s mother died in the 2008 outbreak and the sisters-in-law felt they had to act.

Ms Stewart said: “What we have learned about the Vale of Leven only scratches the surface and we need to investigate what really has been going on across the country. We want answers as to what happened so that mistakes can be learned from. We do not want other families to suffer needlessly.

“We thought that she had picked up the winter vomiting bug and never dreamt that she would die from this. The hospital did not know there had been an outbreak and it was only six months later when we picked up the local paper that we realised something was not right.

“We were told that she had contracted a certain strain of C Diff, which meant she was not counted in the outbreak figures. Rather than appease us, that made us angry. We went on the internet for two days to learn everything we could about C Diff and it made us really determined to get answers.”

Central to their campaign was making use of FoI ­legislation, as it has been for Stephen Wilson of Kirkhill, near Inverness, who has been trying to force NHS Highland to abide by national guidelines for all pre-school children to have their eyes tested.

Both his daughters received late diagnoses for the “lazy eye” condition amblyopia, which was missed by a school nurse.

Mr Wilson said: “If I hadn’t been able to access information using FOI, I don’t think I would have been able to achieve half the things that I have achieved over the past few months.”