Politics

Scottish ministers sought to put ‘killer facts’ out of reach of freedom of information law

SCOTTISH ministers engineered a way round freedom of information law to keep the “killer facts” in their briefings a secret, official archives have revealed.

Files released today by the National Records of Scotland show the Labour-Liberal Democrat Executive of 2006 reclassified material with the explicit aim of thwarting FoI requests.

The reason was to avoid more political “difficulties” for the Executive over policy. At the time, June 2006, the Freedom of Information (Scotland) Act, or FOISA, had been fully operational for only 18 months.

The move involved classifying background factual information as advice to ministers, as such advice is exempt from release under FoI law, subject to a public interest test.

The initiative was led by Labour’s minister for parliament Margaret Curran and finance minister Tom McCabe, and concerned the BriX system, an electronic database that then contained almost 4,000 notes based on standard templates to help brief ministers on policy.

A paper marked “Restricted” circulated to the Cabinet of June 28 said the two ministers intended to “propose a way forward on the interaction of FoI and BriX notes”.

It said: “BriX notes contain advice to ministers, some of which is factual and/or available in other published sources.

“At present, the working assumption is that factual information in BriX can be released.

“This has raised difficulties for the Executive as information – including factual information – whose primary purpose is to advise and assist ministers in the presentation of policy could be widely shared.

“Mr McCabe and Ms Curran consider that BriX should be reviewed to create a system in which the factual material – the ‘killer facts’ relevant to the issue – is recognised as part of the advice to ministers.

“Requests for more general factual information would be referred to other sources.

“BriX would then be properly categorised as advice and guidance for ministers.”

The Cabinet agreed “clarity on the position should be a priority” for the whole Executive.

After officials worked on proposals over the summer, Ms Curran and Mr McCabe tabled a paper at the Cabinet of September 6 titled Developing The BriX System.

It said a “recent upsurge in FoI requests for the release of BriX notes has exposed the need for greater clarity on their FoI status”.

The ministers said they had asked senior officials “to consider how best to deliver succinct, accurate, up to date and private advice to ministers on the positions they should take on policy issues, with a strong presumption against FoI disclosure of such advice”.

The Executive’s Management Group, its top officials, dutifully proposed reviewing all BriX notes “to ensure that they contain advice to ministers” and “put in place a strong presumption against FoI disclosure of BriX notes on the basis that they contain advice”.

The Group said this was to “meet ministers’ requirements”.

In a report shared with the cabinet, the Group said: “The strong presumption should be that such advice, including such factual material, is exempt from release under FoI.

“This is because release would, or would be likely to, inhibit substantially the free and frank provision of advice”.

Ms Curran and Mr McCabe said the changes should be presented internally as a “recasting of the existing system”, while adding: “There is no need for external communication of these changes”.

Ms Curran also said previous release of some BriX notes under FoI had been “inappropriate”, and that the Management Group had “helpfully” set out options.

The Cabinet said care should be taken to ensure FoI laws “were not frustrated by introducing broad presumptions against disclosure”, but then agreed to implement the changes “effectively and quickly”.

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