Excuses excuses

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Kenneth Roy

In the middle of the general election campaign, I received a strange email from Nicholas Kenton, director of finance….

Kenneth Roy

In the middle of the general election campaign, I received a strange email from Nicholas Kenton, director of finance at NHS Shetland. Cleggmania was at its height as a popular craze, Bigotgate was just around the corner, so the communication from Lerwick went unreported at the time. But it is worth turning to it now as a small example of how the secretive state operates.
     Regular readers will know that SR has been running a campaign on transparency in Scottish public life. Partly by making a nuisance of ourselves in these columns, otherwise through freedom of information requests, we have been attempting to establish the principle that the salaries and pension costs of top management in the public sector should be completely in the public domain. The reason should not require to be spelled out, but here goes. We pay for these people. We are therefore entitled to this information.
     The argument is given practical urgency by the demand of the new prime minister that no public official should be paid as much as 20 times more than the lowest paid person in his or her organisation. But how is that laudable aim to be achieved if many public officials refuse to disclose their salaries in their own annual accounts? Of those who do disclose, SR has discovered several in Scotland, particularly in the NHS, who fail to pass David Cameron’s test. Among those who do not disclose, there may be still more. The point is – we don’t know because they refuse to tell us.
    
Half the NHS boards in Scotland publish incomplete accounts. They are incomplete because consent to disclose salaries and/or pension costs has been withheld. Audit Scotland, in response to SR’s campaign, made this statement: ‘We would expect and support full disclosure of the remuneration, including pensions, of senior executives and non-executives. This is in line with HM Treasury guidelines…However, in Scotland, executives and non-executives in public bodies have the right to withhold their consent for disclosure and neither the Auditor General nor Audit Scotland can compel them’.
     Where Audit Scotland failed, SR has partially succeeded. When we hit the NHS boards with awkward FoI requests, NHS Ayrshire and Arran gave us the information at once while NHS Orkney – one of the worst offenders – gave us a written undertaking that it was aiming for full disclosure in 2009-10. We shall see. Others, however, have adopted the most ridiculous postures.
     NHS Forth Valley’s excuse for refusing our request was that the information we were looking for was held by the Scottish Public Pensions Agency and that we should contact the agency. We did. The agency was unco-operative but refreshingly candid. ‘We would not release personal information about an individual’s pensionable income nor would we release similar information about an individual’s pension. Actually we have never been asked for such information…I am afraid therefore that in my view Forth Valley is the correct source for the information you seek, in the same way that we would publish our annual accounts which contain details of management salaries’. I would call that a fair reply.
     So we went back to Forth Valley formally requesting a review of its original decision. We heard nothing. Within hours of the deadline for dealing with our application, we sent an urgent message to the board reminding it of its legal obligation. This produced an abject apology. Hilariously, however, it also produced an alternative excuse for not giving us the information.
     Since the original excuse had been exposed as absurd, the board now argued that to release such information would breach the data protection rights of the individuals concerned.
     This is a line trotted out by many public bodies, including NHS Shetland. Our dealings with that body have been extremely terse ever since our original FoI request on 21 December was turned down in two and a half hours. Our appeal was rejected on the same grounds. Applicants who are unhappy with the outcome are entitled to appeal to the Scottish information commissioner. We were, needless to say, unhappy with the outcome, particularly as Sandra Laurenson was the only chief executive in Scottish public life who refused to disclose salary. On 21 January we fired off an appeal to Kevin Dunion in his castle in St Andrews.

Despite a good deal of administrative to-ing and fro-ing, we had received no determination of our case by the time the general election was called. But then came the strange email from Nicholas Kenton – giving us all the information so curtly refused as long ago as last Christmas. Did this mean that SR had triumphed: that the principle of complete transparency had been achieved?
     Ah, well. Not quite. In the secretive state nothing is as simple as that.
     I contacted the Scottish information commissioner at once, told the officer dealing with our case what had occurred, and sought clarification. He advised us that NHS Shetland had given us the information only because it was fed up hearing from us. He put it more diplomatically, of course, but that was the unmistakable message. Did we, in the circumstances, now that we had the information we had been seeking all along, wish to withdraw our appeal? Not on your life. We replied that we were still fighting for the principle and would go on fighting for the principle.
     The Burns suppers have come and gone, the cold snap, St Valentine’s Day, the daffodils, Easter, the general election – all fading into history. But our case still rests with the Scottish information commissioner. The question remains unanswered, the principle unestablished. We are curious: but patient. The Scottish Review’s appeal is a bit like the ash cloud hanging over us. It’s not going away.

Read Kenneth Roy in the Scottish Review.