Police Scotland deny breaching FOI law through ‘not for disclosure’ markings

The rebuttal comes after officials at the force refused to tell The Scotsman how many documents were marked as not suitable to be published under FOI legislation, claiming answering the question would cost too much money.

Opposition parties have said the revelations raise “serious questions” about how Police Scotland is applying FOI law.

In response to a request, Police Scotland said “any such marking/comment would have no basis in law” and insisted there was no routine process whereby officers decide whether documents are disclosable under the legislation or not.

All information held by public bodies is subject to FOI and can only be kept secret if particular conditions and exemptions are met as set out by the Freedom of Information (Scotland) Act.

However, The Scotsman has evidence of at least one document, a key briefing to the Scottish Government around the policing of the Rangers trophy presentation in May, as being marked as not disclosable under FOI legislation.

Police Scotland claimed any such marking would be “disregarded by the FOI team”, with officials assessing whether to disclose information on a case-by-case basis.

However, it is impossible to know how widespread the practice is at the force after it rejected a request for the number of documents marked as non-disclosable.

Claiming an excessive cost exemption, officials argued the request would require a full search of Police Scotland’s entire database to establish how many documents created in a single week might include a comment on whether it could be disclosed.

It is also not clear whether this practice, widespread or not, has impacted past FOI requests to the force or whether key information is being kept from the public eye.

Police Scotland did not answer how the force benefits from such markings if not to avoid disclosure under FOI, but claimed staff are not asked to mark documents in this manner.

Assistant Chief Constable Alan Speirs said: “Our highly-trained FOI team process up to 900 requests each quarter in accordance with the FOI legislation.

“There is no Police Scotland policy of marking documents as disclosable or otherwise under FOI and our routine reporting templates do not include the need for this assessment.

“We are aware that some documents, particularly where legacy or local forms are used, are marked in this way. However, our officers and staff are not asked to do this.

“When requests are received, the FOI team assesses all relevant information and responds with all documents which come under the remit of the legislation. Anyone dissatisfied with a response can request a review and, following that, are able to appeal to the Information Commissioner.

“Police Scotland is committed to transparency in line with our values of fairness, integrity, respect and a commitment to human rights.”

Scottish Conservative community safety spokesperson Russell Findlay said officers should be focused on fighting crime rather than “plotting new ways to keep the public in the dark”.

He said: “This is a worrying glimpse into the inner workings of the SNP’s secret Scotland.

“Since its inception, the noble ideals of Freedom of Information have been corrupted by taxpayer-funded lawyers on behalf of public sector pen-pushers with a pathological hatred of transparency.”

Scottish Labour’s justice spokesperson Pauline McNeill said the revelations raise “serious questions” about how Freedom of Information laws are being applied.

She said: “The proper application of FOI legislation is absolutely crucial to maintaining transparency and openness in Scottish authorities, but it is all too common for public bodies in Scotland to be found best misunderstanding the law and, at worst, ignoring it.

“More must be done to ensure public bodies fully understand and abide by their responsibilities under FOI law, and the legislation itself should be improved by strengthening the presumption in favour of publication.”

Justice spokesperson for the Liberal Democrats, Liam McArthur, said: “The Scottish Government have been serial FOI offenders and now it looks like Police Scotland have picked up some of their bad habits.

“Every document should be considered on its own merits in line with the Freedom of Information Act. It’s important that senior staff are not leaning on FOI staff to improperly prevent information from being released.”

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