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'Northern Climes, January 2006'

The Freedom of Information legislation is one year old and isnít working. Well, to be precise, itís not working for seekers after truth and justice. It is, however, working pretty well for those determined to delay public access to controversial documents and decisions; in the main government departments, local authorities and other public bodies, all the usual suspects that the Act was supposed to make more accountable by exposing it to independent scrutiny.

At least that has been my experience of asking government and non-government bodies covered by the Act for information about matters pertaining to the operation and regulation of Scotlandís fish farms. For example, when an escape of fish was reported from Marine Harvest cages in Loch Diabaig in Torridon last summer - first reported to the governmentís Fisheries Research Services (FRS) by anglers rather than by the company itself - the FRS could only confirm that an escape had taken place, but didnít know how many fish had been lost.

Another request, made to the Scottish Environment Protection Agency (SEPA) about the operation of a dead salmon disposal site and lodge in June 2005, is still ongoing. A similar request for information about the same dump was made at the same time to Western Isles Council (WIC) and this also remains unanswered; in spite of two promises from the WIC chief executive officer that the council would release the information.

When unspecified numbers of rainbow trout began appearing in Loch Etive and in the River Awe last year once again the FRS was last to know about it and only took action when anglers complained. A request for details about the escape was meet with a straight-bat response that the investigation was on-going and that no information could be released until the investigation had been completed. Several months later, again in spite of a FoI request for the release of that information, of answer came there none.

According to recent reports only 20% of requests for information under the Act have been satisfied. The rest have failed because of catch-all confidentiality clauses in the Act, or have simply become stuck in the mire of the mechanics of the operation of the Act. Theoretically, a request made under the terms of the Act has to be responded to within twenty working days, in other words, one month from the date of the receipt of that request.

If the body approached responds within that time, saying, for instance, that the information is covered by confidentiality or canít be disclosed because it would be against the public interest to do so, then the applicant is entitled to ask for a review of that decision. The time scale for a response to a request for a review is more elastic and it is not unusual for a couple of months to pass before there is any response.

Few will be surprised to learn that in most cases the review, carried out by the same people who made the initial decision, generally upholds that decision. Still, all is not yet lost because the disgruntled applicant can ask the Freedom of Information Commissioner to carry out an investigation into how the body concerned arrived at its decision and whether or not, in the view of the Commissioner, that the decision was well-founded. If he finds in favour of the complainant then the Commissioner can compel the body to disclose the information.

Trouble is that the Freedom of Information Commissionerís office is currently overloaded with requests from members of the public asking it to investigate the handling of complaints that they have made and have had refused. As such, it can take many more months before a situation is resolved.

Another ploy used by those determined to withhold information requested under the Act is to simply ignore the request; in the hope, apparently, that by doing so the complainant will either forget about it or wait for a couple of months before asking what is being done about his/her request. The line followed thereafter by the body asked for information can vary.

If a follow-up letter is received, they might apologise and get on with it; no doubt eventually saying that they canít disclose the information for reasons various (see above). Whatever happens, be assured that the whole process can take anything from six months to more than a year. Few people are tenacious enough to stay the course and most will falter along the way. Which is exactly what the recalcitrant body expects, and wants, to happen.

Another ploy used by those hiding behind the rules is to unilaterally decide that the request does not fall within the terms of the Freedom of Information Act and that they are treating it as a Ďcomplaintí. Thereafter, in the fullness of time, when a member of their own staff has carried out a full and independent investigation, they can say that the complaint is without foundation; giving the complainant the opportunity of asking for a review, carried out, again, by themselves.

However, the most compelling defence against the possibility of malfeasance being exposed is for the body to respond promptly, but, in doing so, to carefully avoid answering the question. In the hands of a professional civil servant this is the ultimate sanction; involving the person making the request in never-ending correspondence than becomes more and more confused and contorted as the months, nae, years, advance.

If you are seriously looking for truth and justice in public life donít expect to find it by invoking the Freedom of Information Act. Well, not if you wish to retain your sanity. Buy yourself a bottle of aspirin and remember you read it here first. If this be error and upon me proved then Iím Florence Nightingale and Planet Earth is flat.

Rod McGill