Culture change is at the heart of Freedom of Information legislation in Scotland as well as, it seems, in other jurisdictions with access to information laws. Culture change concerns a change of public sector attitude towards information dissemination, a shift from a culture of secrecy to one of increased openness. It was a strong message carried by both Ministers and decision-makers north and south of the border, in light of the enactment of the UK and Scotland FOI Acts that the public sector must operate more openly. The policy was introduced after years of campaigning by groups such as the UK Campaign for Freedom of Information against what was perceived as unnecessary secrecy. A Freedom of Information Bill was finally offered in 1997 in New Labour’s election manifesto, and after their election, took the form of the UK white paper Your Right to Know, and in Scotland the 1999 consultation paper An Open Scotland. A Freedom of Information Bill for Scotland was a promise that Jim Wallace MSP, later Scotland’s Deputy First Minister, had made on his election as MSP for Orkney and Shetland and it was one that he appeared keen to keep: ‘When I first stood for the Westminster Parliament in Orkney & Shetland in 1983, and was asked what private member’s bill I’d like to bring in, if successful in the backbench ballot, I committed myself to an FOI Bill’, he said in his speech at a FOISA conference in 2006. He continued:
‘The need to overturn a culture of secrecy was a pressing one. Here was a country, or more specifically, a public service which was still dominated by the 1911 Official Secrets Act – a piece of legislation introduced to combat a German spy fear in the years before World War I. But its ethos – everything being secret except that which was expressly allowed not to be – pervaded government.
I recall citing as examples, the offence committed by revealing the whereabouts of the Post Office Tower in London, or by the Head Gardener in the Royal Botanic Gardens disclosing, without authorization, the order in which the plants were watered.
It wasn’t just a change of legislation, which was needed; it was a change of culture’.24
The default position of information retention, it seemed, was so entrenched that legislation alone was not going to change culture but legislation must be accompanied by a change of attitude across the public sector. Culture change appeared both a precondition and an outcome. In A Partnership for Scotland, which set out the key principles for the so-called Lib-Lab partnership25(an alliance formed by the Labour
and Liberal Democrat parties in Scotland) published shortly after the 1999 elections to the Scottish Parliament, Scottish Ministers made clear their commitment ‘to the early introduction of an effective Freedom of Information regime’ and ‘a culture of openness within the public sector’ considered ‘an essential foundation for the successful implementation of [FOI]’26
. It was argued that culture change would lead to more efficient and effective governance, as public scrutiny ensured better records management and that the right decisions were being made at the right cost.
FOI was foregrounded against decades of official secrecy in Britain. The 1911 Official Secrets Act (introduced in 1889 and amended in 1911, 1920, 1939 and 1989) was a measure enacted in the interests of national security from the viewpoint of being on a war footing. It placed an emphasis on the retentionof information: and, as the quote above indicates, its scope was extended over time to include, not just sensitive information, but any information that a civil servant or government contractor might come across in the course of their work for the government. The OSA continued to be staple legislation throughout most of the twentieth century on which Ministers, public officials and decision-makers relied. In light of slow moves in other jurisdictions around the world towards openness, considered by their own citizens and other nations as a sign of democracy and a transparent and accountable government, Britain’s lack of access to information legislation in the late twentieth century seemed backward. Or perhaps a demonstration of an implicit assumption that government and its employees could be trusted to ‘do the right thing’: an assumption that the public, and many civil servants, felt was being increasingly abused.
Freedom of Information legislation was aimed at reversing this long-standing emphasis on the retention of information, and provide people with an automatic right of access—unless of course information was exempt, considered for example, personal, confidential, or something that might prejudice the conduct of public affairs27. An authority ‘if in doubt’ was to ‘give it out’ as the CFoI in 24http://www.jimwallace.org.uk
25http://news.bbc.co.uk/1/low/special_report/1999/06/99/scottish_parliament_opening/379340.stm 26www.scotland.gov.uk/library2/doc02/opsc-01.html
27 Exemptions on disclosure such as these, however, were often subject to the public interest test, and a decision over disclosure or retention something to be decided on by a practitioner or the SIC himself.
Scotland famously stated. The increasingly apparent decline in public trust towards government provided New Labour with an incentive to introduce an FOI Bill, in addition to the clear call for change on the part of groups such as the UK CFoI and the wider public.
To obtain and share information, then, was a way of participating in politics, devolving politics to citizens, which in some ways alleviated Members of Parliament from having to make decisions. FOI embodied a devolved structure of governance, where civil servants’ relation to Government invoked their decision-making capacities, and in their relations with civil servants, citizens had capacities to challenge and amend these decisions. Government had, in a sense, been taken out of the equation.
However, advocacy was also coupled with skepticism: there are those who continue to doubt that organizations will ever start liberally disclosing information that they prefer to retain. Drawing on the experience of other jurisdictions with FOI regimes, in particular Canada and the United States, Roberts (2006) states that organizations will always resist disclosure, ‘[e]xperience has shown that the governing institutions in Westminster systems are particularly resilient, and capable of rejecting alien transplantations such as FOI laws, or of developing new routines designed to minimize the disruptive effect of these new laws’ (2006: 108). While there is small chance that there will be a change in culture or increased trust, Roberts’s outlook is balanced: some information will be released, he argues, and citizens and non- governmental groups will undoubtedly find FOI a useful tool for extracting information about government and decision-making.