KEY POINTS:
Kevin Dunion opens doors. In Scotland they describe what he does as "to dunion" - as in, "you've been dunioned".
The Scottish Information Commissioner is very good at his job.
He's asked to bust through bureaucratic prevarication to release secrets at twice the rate of requests in the rest of the United Kingdom. "To be fair it's partly my own fault, I made sure the public was aware of its new rights."
Dunion, who was here for last month's 5th International Conference of Information Commissioners and a brief New Zealand holiday with his wife Linda, is talking about the advertising campaign he ran just before Scotland's Freedom of Information Act came into effect in 2005.
When we meet at Auckland's Domain, he wonders whether he should wear a tie for the photo. His is obviously a serious role, with burdensome responsibilities. But Dunion, genial and relaxed, carries them with an air of quiet confidence. He opts for holiday mode. So, how does he feel about the ultimate accolade - he's become a verb? The reputation came through conscious choice. "It's easier to start off severe and then relax in the light of evidence of who are the goodies and the baddies than to start off softly and then say, 'I'm losing patience', and try to crank things up."
Dunion was aware public authorities, and particularly central government, wanted him to regard using his enforcement powers as a last resort. Fat chance."That's entirely the wrong way to go about it. I'm not an ex-civil servant. My background is as a campaigner and a troublemaker. I felt the appropriate way to go about things was to be quite firm, quite antiseptic about what was required of the authorities. And yes, we know the authorities are now second-guessing what will happen if they get into my clutches. I think that's pretty good."
Troublemakers is the appropriate title of the book Dunion wrote just before he took up his post in 2002 - a review of his working life with Friends of the Earth and Oxfam. It's about getting environmental justice for "people who grow up in the lowest socio-economic class and find themselves living in worst environmental conditions - next to contaminated land or close to high levels of pollutants."
It's a subject close to his heart. Dunion is from a mining family and grew up in an industrial part of Scotland. He speaks with passion about parts of Glasgow contaminated by chromium waste, illegally dumped and well above World Health Organisation standards. "There's a play park in Glasgow that says 'Contaminated. Keep Out.' Clean it up and get somebody to account for it. I feel strongly about that."
Dunion's thesis in Troublemakers is that the most successful environmental campaigners are very difficult people, seen by authorities to be obsessive, unreasonable and untrusting - just what's required in an environmental campaign to get the job done. He applies the same sort of attitude to his current role which, as well as paving the way to information, also deals with access to environmental information following European directives. He's happy to talk about his role, and while he's aware we'll be making comparisons, he makes it clear it's not appropriate for him to comment on New Zealand's freedom of information regime.
Though Scotland, like the rest of Britain, is a latecomer to freedom of information, Dunion says there are advantages in being able to learn from the experiences of other jurisdictions. Unlike New Zealand, which has had its Official Information Act for 25 years, Scotland has real muscle in its legislation, and also includes parliament within its scope. "I can enforce my decisions. If an authority has not been co-operative, I'm able to issue an information notice which, if it's not responded to, I can refer to the court. To not respond is the same as contempt of court, so there is always that very strong legal stick."
That's in sharp contrast to New Zealand legislation which is designed to have little recourse to the courts and where enforcement is more convoluted. Here, appeals for the release of information go to the Office of the Ombudsman. If its recommendations are ignored, the matter is referred to the Solicitor General, who can file legal proceedings to enforce public duty. Since 1998 there have been no cases of failure to comply.
In other words New Zealand's enforcement is once-removed from the ombudsmen, while in Scotland it's at the ready. "I suppose my stick is not hidden behind my back, it's by my side," says Dunion, who feels enforcement is an obligation to serve his constituency. "The act gives people rights and people would be quite rightly entitled to criticise me if I was given powers to pursue my investigations and I declined to use them for fear of upsetting authorities."
That makes him hard-line in enforcing the 20 days that public authorities have to comply with information requests. Dunion also publishes his decisions as he goes. That's important, he says, to provide a body of precedents and clarity in terms of thinking about freedom of information. Here, our ombudsmen don't publish decisions as such, but do publish compendiums of case notes - the most recent being 2003.
It's a palpable difference. In Scotland the freedom of information is seen as something dynamic, to be kept in the public eye. Here it's a musty concept gathering dust in out of date volumes when bureaucrats get around to writing them up.
Scotland's Freedom of Information Act is also much more legalistic than ours, which operates from broad principles, the main one being that information should be made available unless there is good reason for withholding it. Scotland's act is more defined and detailed. Every word matters. So does every word in a decision because it may end up defended in court. Where the two acts are similar is that they both operate on a case-by-case basis, with each decision standing on its own merits.
As Dunion points out that can cause conflict. A common bone of contention is whether advice given by civil servants to ministers should be exempt from the Act. The first test of the Scottish act is whether any harm would occur if information is released. In Scotland that means substantial harm. Scottish civil servants wanted an automatic assumption it would be harmful to release information, no matter what advice was given, and no matter how innocuous. Dunion says it's that sort of culture that has to change. "The act should not be bent to meet civil servants' sensitivities - they've got to toughen up."
The Scottish Act also actively promotes freedom of information by requiring all public authorities submit to Dunion's office a publication scheme. That outlines what information the body will proactively disclose.
"It was meant to be part of the culture change - to get authorities not to wait passively, but to put public information on to their website and into the public domain whether or not people were asking for it. It was recognition that public accountability required you to do that."
Dunion has read Nicola White's book Free and Frank, about our Official Information Act. "I defer entirely to her knowledge and experience of New Zealand, but I don't share her analysis." He's referring to White's conclusion that, after 25 years of operation our act is "slowly but surely feeding suspicion and distrust, rather than dispelling them."
Dunion says governments sell freedom of information legislation on the basis of accountability, participation and increasing public trust. "Most governments have had their hands forced because of a decrease in public trust so they bring in an FOI act as an antidote to that." He sees accountability working well. "It's telling citizens to hold the whole government system to account for the actions that impact upon their lives." Democratic participation improves too - especially at the local level, in terms of getting to know why things like planning decisions are taken. He admits participation is not so effective at government policy level - largely because ministers still want to hold that sort of information close to their chest.
But when it comes to lack of public trust, Dunion says freedom of information acts are small players and that much bigger forces are to blame. "Public trust in the UK in government and in all things to do with government has plummeted. But it's entirely unrelated to freedom of information. In Britain it's to do with the Iraq war, Alistair Campbell and spinning, BSE and cover-ups. There's a long history."
Dunion says a different question needs to be asked. Has the culture of government changed in the way the act intended? After all, that's what governments say when they introduce a freedom of information act - that they are reversing the assumption of secrecy of official information. Has that happened? Dunion says there is a way to go on the path to openness - to where information is released as a matter of course. But in Scotland at least, the spectre of getting dunioned will continue to pry open closed doors.
YOU'VE BEEN DUNIONED
Case studies from the work of Scottish Information Commissioner Kevin Dunion
* August 2005-; Request to the Common Services Agency (CSA) for the incidences of childhood leukaemia from 1990-2003 in the Dumfries and Galloway postal area. The CSA objected on the grounds the information could identify individuals with cancer. The commissioner ordered the information released in "barnardised" form - applying a statistical formula to the raw data to prevent identification. The CSA appealed to the Scottish Court of Session which found in favour of the commissioner. The CSA has now appealed to the House of Lords.
* October 2005 -; Request from a Sunday Herald journalist to the Scottish Parliamentary Corporate Body for a copy of leader of the Scottish Conservative Party David McLetchie's travel claims since 1999. Copies of the travel claims were provided but information, including taxi destinations, were edited out. The commissioner ordered the information released saying it would not breach any of the data protection principles, nor would it endanger the member of the Scottish parliament's safety. McLetchie resigned after it was revealed he had spent £11,500 of Scottish taxpayers' money on taxi fares, more than any other MSP. The problem was not so much the large bill, but the fact that he had used taxis for Conservative and Unionist party business (as opposed to constituency business). The parliament then released all MSPs expenses and published them on a website. MSPs expenses dramatically reduced as a consequence.
* December 2005 -; request for the release of mortality rates of all surgeons from the Common Services Agency for the Scottish Health Service. Surgeons were worried the information would lead to newspapers naming those, who for good reasons, might have a higher mortality rate. The Royal College feared surgeons would down tools and not do high risk operations because it might increase their ranking. The commissioner ordered the release of the information. Newspapers didn't publish league tables or headlines screaming "Dr Death", and were able to point out that certain procedures carry greater risk. Statistics are now released on an annual basis.
