THE Scottish Government needs to take urgent action to improve its record-keeping and fix “significant and systemic” problems impeding the public’s right to information.

In a stinging report, Scotland’s freedom of information (FoI) tsar said the government had ended some bad practices in recent years, but still routinely broke its own rules.

Scottish Information Commissioner Daren Fitzhenry said he found “a number of areas where performance and practice fell short” despite making previous recommendations for improvement in 2018.

His report comes just a week after the Scottish Government belatedly found a ‘lost’ email in its records that went to the heart of the £250 million CalMac ferries fiasco.

Labour said the report exposed "a rotten culture of secrecy at the heart of the SNP".

Mr Fitzhenry’s progress report was his third since he intervened over the Scottish Government's handling of FoI requests in 2018 after the media raised concerns. 

Covering the two years from April 2019 to the end of March 2021, the report drew on internal Scottish Government FoI data and a manual review of 76 FoI cases. 

Mr Fitzhenry said he found a “mixed picture”, with some improvements, but also some continuing poor practice, not all of which could be blamed on the Covid pandemic. 

He reported he had found “substantial problems in the Scottish Government’s ability to track, monitor and report on (and therefore improve) FOI performance”, and “evidence of significant delays and organisational ‘bottlenecks’ in some areas”.  

He said: “I also found evidence of significant and systemic failures to comply with case file records management requirements with the effect that, for many of the cases examined, it was not possible to fully assess how a case had been handled, who had been involved in case handling, or why particular decisions were taken”.  

He cited a particular failure to record the involvement of ministerial aides known as special advisers in FoI cases, and said this must be improved.

In one example, Mr Hitzhenry's office an FoI request about the extremely controversial discharge of Covid-19 patients from hospitals to care homes had taken eight months to answer instead of the usual one, partly because "the case sat with special advisers for at least three months".The Herald:

While the pandemic explained some of the issues, there was also a cultural problem. 

“Other factors, such as organisational compliance with internal procedures and issues with monitoring and reporting, are clearly wider concerns which require to be urgently addressed,” the report said.  

The report found evidence of improvement in:

-an increased understanding across the Scottish Government of FOI request-handling processes and procedures

-the ending of the inappropriate practice of handling requests from journalists and political researchers differently from other requesters

-a greater reliance on internal expertise in the handling of FOI requests.

However, it also identified a number of areas where Government performance fell short: 

-evidence of widespread failures to comply with records management requirements when handling FOI requests

-issues with the organisation's ability to track, monitor and report on key elements of FOI performance

-inconsistent compliance with new procedures designed to prevent delays in the approval of FOI responses.

Mr Fitzhenry said: "It's reassuring to see that the Scottish Government has made significant improvements in a number of key areas and that elements of the new processes are impacting positively on organisation culture and practice.

"However, it is also clear that work remains to be done if the Scottish Government is to deliver sustained improvement in its FoI performance. 

“While the pandemic was undoubtedly a factor in some of the issues we identified, it was evident that problems with records management; compliance with procedures; and the recording, tracking and monitoring of FoI requests stem from wider, more systemic, concerns.

"My report contains a number of recommendations to help the Scottish Government address these issues and support ongoing improvement in FoI performance.

"FoI is an important right. It enables people to understand more about the public services they use and the decisions which affect them; and supports public engagement. 

“I will continue to work with the Scottish Government as it addresses my recommendations, to support the timely and effective delivery of FOI for everyone who seeks information from the Scottish Government."

Tory MSP Craig Hoy said the report revealed "just how bad the corrosive culture of secrecy has become under the SNP Government".

He said: “Persistent problems with record-keeping have made it difficult for the Information Commissioner to fully investigate the Government, and though there seems to have been some recent progress on improving FoI practices, too many responses are being held up by the involvement of government ministers and special advisers. 

“Wherever possible, Freedom of Information requests should be assessed by neutral case handlers, not political officials who may benefit from the information being withheld or released.

“This is just another symptom of the shadowy and secretive SNP approach that we have seen throughout a series of recent scandals – from Ferguson Marine, to Lochaber Smelter.

“It is clear that the Government has a long way to go to reach the standards of transparency the Scottish public has a right to expect.”

Labour MSP Neil Bibby said: “This damning report reveals that the SNP are still riding roughshod over both the spirit and the letter of FoI law four years after these failings were exposed.

"Records management is still being systematically bungled and we are still seeing scandalous levels of political oversight in routine requests.

“There is a real risk that the meagre progress observed here has since been wiped out, with the government blatantly sidelining FoI laws under the guise of the pandemic.  

“The SNP government must stop dragging their heels and act on all the recommendations made here and in 2018 – but their contempt for FoI is just the tip of the iceberg.

“There is a rotten culture of secrecy at the heart of the SNP which threatens undermine the fundamental principles of transparency and openness in government, and we need a full overhaul in culture and practice to address it.”

Liberal Democrat MSP Willie Rennie said: “In the SNP’s secretive world, reasonable requests for information from journalist and the public are treated as hostile attacks. 

“From independence legislation to industrial interventions, the Scottish Government still refuses requests as a matter of course which will inevitably be overturned on appeal.  

“Meanwhile the Information Commissioner notes that routine requests are still being overseen by special advisers and that their role in this process is not being clearly and consistently recorded.  

“It’s shocking to read that on one occasion special advisers sat on a request for information about Covid patients in care homes for at least three months before responding. 

“Scottish Liberal Democrat ministers in government were responsible for introducing FoI legislation. SNP ministers are twisting that legislation to breaking point.” 

SNP Parliamentary Business minister George Adam said the Government was "committed to openness and transparency" and recognised the crucial role of FOI in the scrutiny vital to effective governance, but also put a lot of blame on the pandemic. 

He said: “As this report recognises, the Covid pandemic had a significant impact on our FOI handling. Prior to the pandemic the Scottish Government met its target to respond to 95% of requests on time in seven of the eight months to March 2020.

"Responding to the pandemic necessitated an immediate redeployment of staff at an unprecedented scale within the Scottish Government.

“We have worked hard to restore turnaround times. Over the past two years response rates for requests issued within 20 working days have improved to around the average for Scottish public bodies, at 86%. We have, at the same time, responded to a steep increase in the volume of FOI requests - handling a record 4,200 requests last year - 25% more in 2021 than  the previous year, the vast majority on time.

“Nevertheless we remain committed to further improvement, including achieving the target of answering 95% of requests on time.

"I welcome the Commissioner’s recommendations and we will develop our action plan to address the areas identified that require further work.”