As Kevin Dunion prepares to leave the Office of the Scottish Information Commissioner, he confirms that knowledge is most definitely power

It took just five minutes for the coal tip above Aberfan to slide down the mountain swamping Pantglas Junior School. Inside, the young pupils were beginning their first lessons of the day as the devastating landslide of mud, stone and debris flooded their classrooms killing 116 of them along with 28 adults.

It was a tragedy that sent the nation into shock. The date was 21 October 1966 and it is a memory still firmly etched in the minds of many parents today who, as children, watched in disbelief as the BBC broadcast the day’s terrible events.

Like children all over the country that dark day, 10-year-old Kevin Dunion was sitting in his living room transfixed by the black and white television pictures that revealed the unfolding horror.

The next day he went into school and appealed to his classmates at St Mungo’s in Alloa to hand over their money meant for play-pieces and lunch. Like pupils all over Britain, they gave their coins willingly and Dunion packaged the cash up and sent it to the then Prime Minister, Harold Wilson, for a disaster fund to help the families of Aberfan.

But when Dunion later discovered that some of the monies raised by him and others like him had been used to clear the slag heap that had engulfed the primary school in the Welsh mining village rather than given directly to help the bereaved families, he was stung by a deep sense of injustice.

“It’s a very early memory for me watching the broadcaster Cliff Michelmore crying on the news as he reported what was happening in Aberfan. That emotion is not something you expected to see on the BBC and it gave you an acute sense of the scale of the catastrophe.

“I absolutely felt that the right thing to do was to dig into our pockets and so I gathered up what money I could and sent it off. The strange thing for me was then experiencing the conflicting emotions of the double whammy of this huge pain of such an awful tragedy and my desire to help but then have that dented by the sense of real injustice that the money I had collected to help those directly affected was used for something else.

“I can remember just this fury. It was a hugely powerful feeling. I suppose, looking back on that, I realise that I must have always had that element of both the charitable and the giving offset by the ‘don’t take liberties with me’ characteristic and I wasn’t happy.” That precocious sense of social injustice was no doubt instilled in Dunion by his parents, particularly his father, a keen trade unionist who had very clear divides about right and wrong and made no attempt to dress them up to lessen the impact on his young family.

The Dunions loved musicals and would all sing along to them – although the commissioner reveals he no longer has a singing voice. But an innocuous outing to see the Rodgers and Hammerstein extravaganza, South Pacific was quickly translated into a lesson in racism. With an apparently innocent plot centring around the love affair between Lt Joe Cable and his Polynesian sweetheart, the music and lyrics were in fact incorporated into the story in such a non-threatening way that its underlying message about race was delivered without deploying the shields of defence from the audience of the time. However, an ever inquisitive young Kevin Dunion wanted to know why there was no happy ending, why was there no marriage between the two lovers, why couldn’t they be together?

His father pulled no punches when he told him that Rodgers and Hammerstein had said that if a white guy couldn’t marry a black woman in 1960s America then that wasn’t going to happen in their film – they wouldn’t give a happy ending unless a happy ending could happen in real life. In fact South Pacific is now seen very much as a homily on racism but to Dunion it was an early political awakening.

“My dad pointed me to a song in the musical called Carefully Taught which is sung by the Cable character and it basically says that middle class, white boys are taught to be racist from an early age and to look down on other people, particularly black people. I remember then listening carefully to the words in the song and being shocked but I guess that was an amazing political truth for a father to tell a nine or 10-year-old boy and one that clearly stayed with me.” Given his upbringing, it is hardly surprising that Dunion and indeed his three siblings all followed careers in public service of one kind or another, with both sisters working as teachers, one with special needs children, and his brother working with Apex, the charity that helps exoffenders back into the community.

Dunion himself was appointed Scotland’s first FOI Commissioner in 2003 having spent the best part of 20 years campaigning for political, social and environmental justice, first, as editor of the pro-devolution magazine Radical Scotland, then as campaigns manager for Oxfam, and finally as director of Friends of the Earth Scotland.

It was while at FoE that he first realised how critical legislation around freedom of information was. He had been doing some work with a US environmental justice campaigner called Bob Bollard who revealed to Dunion how important it was for those poor communities who thought they were being more polluted than others to get to the facts of the matter to prove their case.

“These people were able to gather that data because FOI existed in the States and that showed starkly that if you were poor and black, you were much more likely to be living next to a toxic dump site than if you were poor and white and similarly, if you were middle class and black then you were more likely than middle class and white to be living next to a toxic dump site. This was vitally important in terms of their campaigning and they gathered that information as a result of FOI. We in Scotland didn’t have that capacity to gather that information or rather, we had the capacity and we had environmental regulations but we were told it was too commercially sensitive or too expensive to gather.” Dunion talks about a paternalism that exists in Scotland whereby those in authority assume a responsibility for information which, he says, is often about holding on to power.

“I remember being in Greengairs in North Lanarkshire on a wet February evening in about 2000 in a cold local hall and there was a heated issue in that community which typified the whole environmental justice area; surrounded by landfill sites and open-cast mining and poor quality housing and in some ways, a benighted community but with some great community advocates. There was a heated exchange between the council, elected representatives and local companies who were doing open-cast mining and landfill and someone asked a question which was basically, if we want to get this information, how do we get it? A local elected representative stood up and said, ‘if you ask me, I’ll ask on your behalf’. I was outraged by that.

This person had the right under environmental regulations to ask for the information and that representative was misinforming people about their rights and it was all about holding onto power.

“Knowledge is power. Exerting power and authority which says to people they should not be given information because they will misinterpret it is something I am frequently told and my answer is that you need to help them interpret something if it is difficult to understand, not just assume they are just too stupid to understand information. If you accept that then you allow the person in authority to simply say, ‘here is your nuclear power station’ or ‘here are your GMOs (genetically modified organisms)’ without any public engagement.

We have a pretty bad track record of authorities doing things by themselves in isolation because it is done by the book but ignoring the possibility of concerns and refusing to engage with the public by standing behind the bureaucracy of decision making, is wrong. What they tend to forget is that the European directive is actually headed up ‘access to information and participation in environmental decision making’ and that the whole idea is to get the information to actively engage the citizen. This is about saying that after taking the decision we will be prepared to share but we don’t want to have that decision being adulterated by the public putting pressure on us. I think it is a bit timid if officials can’t face having lobbying or have people raising concerns simply because they are concerned about what they might say.

“One of my great compulsions is to put power in the hands of the people and one of the problems in Scotland is a kind of paternalism that says, leave it to us, to the experts and we will set up the regulatory bodies and the inspectorates and we will do the job for you because it is a bit too difficult or complicated for you to understand or they say, ‘leave it to us the politicians and we will hold people to account and act on your behalf’. The whole point of FOI is to put power in the hands of the people so they ask the questions they want answered, without worrying about whether it will offend anybody and the most successful people I see using FOI now are still those campaigning grassroots bodies who are not even part of the organised voluntary sector but just set up to pursue one legitimate concern whether it is around hospital-acquired infections or rural schools. They are not part of a national body, they are just fearless and they pose the questions, get the answers and change policies and that is the success of FOI.” It’s interesting to hear Dunion speak like this because after eight years in the job and despite the trappings of office, the conventional suit and the fact that some thought it meant the poacher had turned gamekeeper, he is still pretty radical.

He can still wave a metaphorical placard and he still is fired by a fundamental belief in the fact that those in power are accountable to the people that put them there. Why, I wonder, did he actually want the job?

“It’s a job that I really keenly wanted to do for all of the reasons we have discussed and for all my background in campaigning. You can look around the world, and we are not by any means the first country to do this. There are lots of commissioners and go look at their websites and look at the cases they have dealt with and what you see is that when you come to the role of the commissioner, you are sitting in judgement of what’s in the public’s interest and that is not about just a legal decision, it is about a knowledge of your own country, a knowledge about the issues that matter to people and looking at issues of harm and bringing your own view to whether authorities are being a bit precious and simply expecting to continue business as usual and that the commissioner will endorse that. This job is about value judgements and weighing things in balance and I thought it was important to have a progressive commissioner. Jim Wallace, and others ahead of the legislation coming in, called for a cultural change and they were using very strong language, like we needed transparency. You don’t bring in culture change by going soft and introducing an act, appointing a commissioner and then giving everyone platitudes about bedding things in gradually, etc. I took a view that the Act would be enforced from day one.

“The reason I went for this job was because I had spent my whole life in the voluntary sector trying to get answers but also as director of FoE I had been actively lobbying for an FOI act and to make sure that all that we had got wrong with the environmental regulations; which is that they were not being used because people didn’t know anything about them, because local authorities were not trained up to recognise requests and because there was no one body to enforce them, would not happen with FOI.

“One of the great things about FOI was that there was going to be a commissioner and so in my role at FoE, I would be speaking to Jim Wallace, who was justice minister at the time, and I would be asking, ‘what about this’, ‘what about that?’ and he said to me, ‘Kevin, you have to remember that there will be a commissioner to deal with all of this’ and I began to think that this commissioner person would be very important. I wasn’t thinking I could be it but I was thinking about who it could be. I remembered speaking to my wife about it and she said that if I felt so strongly about it then I had to put my hat in the ring because otherwise I would just moan about the commissioner we got.” Dunion had been a thorn in the side of officialdom for some time – always asking questions, always pushing for answers – and had a proven track record of attempting to open government up. Friends of the Earth Scotland was the only charity at the time to appoint its own freedom of information officer and a survey for FoE Scotland showed nearly 10 per cent of requests for official information went unanswered, and more than 40 per cent of respondents found answers inadequate.

I wonder if that is because many people in authority wish to protect their own professionalism and simply think the general public wouldn’t have the capability to understand the work they have done.

Dunion dismisses this with the contempt built up over years as a campaigner.

“I credit the public with the intelligence to understand knowledge and if they don’t get it all then they can also be facilitated in that. Think of the great impasses of the environmental movement – GMOs – and there were some of the scientists who believed that the language used by the environmentalists – hopefully, not by me – was scaremongering; Frankenstein foods and so on but equally, the scientists failed to engage with the public’s ‘what if’ scenarios.

The public were basically saying, ‘if we let you do this with no discussion, will you just go to the next stage which might be a lot less the next and so on?’ What we have seen with some of the intractable issues in the past is that you have to have things like citizens’ juries and panels where both cases get to make their case like they would to a jury in court and the public have shown consistently that they can take on board difficult and complex issues presented to them as the general public, not presented straight from a paper in the Lancet or in Nature. I remember going to a meeting about genetically modified potatoes at a big conference in the conference centre in Edinburgh and it was largely scientists but also press and NGOs and I remember someone standing up and asking a question and the chairman said, ‘unless you can point me to the peer group literature which contains the basis of your concern then please sit down’. Frankly, if that’s the level of the engagement we are at in that you are too stupid to ask the question, never mind understand the answer, then every opinion or viewpoint will be uninformed and that takes us nowhere.

‘’I think there has been a culture of ‘what’s it got to do with you?’ around official secrets, commercial confidentiality, and the provision that policy discussions shouldn’t be put into the public domain. I turn that round and ask, where is the harm? Is it more harmful to disclose the information than not disclose the information and that is a real cultural shift?” It’s fair to say that Dunion is a purist when it comes to the release of information. He is clearly irritated by the constant jibes about journalists using the FOI legislation to fish for stories or to uncover scandals but says to restrict them would come at an inevitable cost to wider public access. But sometimes it is quite hard for even the most liberal among us to get our heads around why he thinks the public has a right to know almost everything, particularly around politically sensitive matters. Why does he feel politicians should not have private ‘thinking space’ to discuss an array of possibilities and options without fear of that being exposed?

“Because the only conclusion that you can come to is that they wish to be able to discuss options in private so that the first the people get to hear is either when an option has been chosen or even better, when a decision has been taken.. That is the biggest complaint I have as commissioner, that you can’t apply this class-based approach to information. You have to look at the content and then weigh it in the public interest. Not just always say ‘no’, no matter what.

“It staggers me to see both Tony Blair disowning his own legislation and only the other week to hear Sir Gus O’Donnell who is, by the way, still Britain’s most senior civil servant, saying that the FOI act should never have been passed because it gets in the way of him being able to assure ministers that anything they discuss will not be disclosed. He was never in a position to assure them of that because he was covered by a code of practice which predated him and by the Environment Information Regulations which meant, at least on some issues, he could never give the Government that assurance.

“It’s a pattern worldwide that politicians are in favour of FOI until they are in power. Yes, every government becomes irritated with what the act is used for which to their mind is to bash them and to provide headlines. We regularly hear from them that this is not the way the act was intended to be used but I say, ‘yes it is’. We have had 30 years of FOI acts before Scotland’s and it is easy to look at other countries and see that this is precisely what happens when you pass an FOI act; you will be asked difficult questions and commissioners will annoy you by ordering you to release information that you thought you could withhold. “Let’s take the Attorney General’s advice about whether a war is illegal or not illegal. Do you regard it as simply that all authorities should be able to get legal advice and that legal advice should be sacrosanct or that any cabinet meeting should be or do you say, no, that there are strong arguments for not releasing some information but from time to time there can be a public interest override? Well, the act makes provision for this and that is what happened with the Attorney General’s advice down south over Iraq.

“I think a sensible government, and we have seen a couple of examples of this in Scotland where the Government has done it very well, where they say something is of such public interest that let’s get into a position of strength and put everything in the public domain. Our government did that over the Trump development which was causing a lot of headlines and the Government said, well, here is the information that we have regarding our engagement with Donald Trump. The second was on Megrahi. There was one sentence out of all the documents which are held which wasn’t released and I agreed that should not be disclosed. The Government put out all the information I thought it could disclose in terms of the decision to release Megrahi and on the information about his specific diagnosis, I agreed with the position there and that was about human rights and my defence was that he had human rights and he had rights under the data protection legislation. The information that was given out was done with his consent. My point of view was that in terms of the legislation, it wasn’t actually a difficult decision because it is clear cut as long as you recognise his medical information has significant protection under data protection and within the human rights legislation. I didn’t have a right to undermine that.” Clearly, while Dunion’s job is often wrapped in a cloak of legality, his decisions have more to do with his own judgement than legal argument.

That must inevitably lead to some moments of personal disquiet?

“The most agonising one was the decision to release the mortality rates of all of Scotland’s surgeons because there wasn’t any great degree of precedent. That case turned upon the question of what was the nature of the harm that was being proposed to me and did I think it was plausible. In that instance, I honestly didn’t think that surgeons would cease to cooperate with the hospital authorities in allowing the statistics to be gathered in the first place and I didn’t feel they would cop out of the professional audit that they had set up voluntarily to look at why operations weren’t perhaps as successful as they expected. I also placed some trust in the Scottish public and the press. I honestly didn’t think the Scottish press would run league tables of the worst surgeons in Scotland and I certainly thought the public would understand that emergency surgery on a high risk patient would probably not have the same outcome compared with an elective procedure on someone who was booked in on a Thursday afternoon and due to come back out later that day. But the precursor to all of that had been the scandals we had seen down south, particularly at Bristol Royal Infirmary where it was clear that a large number of children had died unnecessarily because of poor monitoring of the performance of surgeons, compounded of course by the fact that the children’s organs were withheld without knowledge of their parents.

Professor Ian Kennedy was very forceful in his conclusions in that inquiry and that bore heavily on my decision; that there was evidence of an old boys’ network that would rather maintain that network than give the public evidence of any failings on their part and that the public authorities failed to recognise that the number of deaths were too high and failed to step in soon enough and within the context of all of that, I felt the public were saying this is what we need to know now.” Dunion officially leaves his post on 23 February when he will be in court, defending his decision for South Lanarkshire Council to release information on pay scales. The new commissioner will take his place in court the following day.

The case is one of a dramatically increased number of appeals – the highest since the legislation was introduced – falling on Dunion’s desk. He suspects this is an indication of a more adversarial relationship between requestors and public bodies, perhaps rooted in the current financial crisis and people now asking difficult questions about policy making and the bearing that has on spending which may be uncomfortable for the authority to answer.

He says this needs to be addressed quickly and he also has concerns that Scotland’s gold-plated reputation in FOI is slipping back.

“There are 90 countries worldwide and 260 states and provinces with some form of FOI and the driving force is it provides for good governance, tackles corruption and gets citizens involved in decision making and however much individual ministers or politicians or councillors, etc just wish this act would go away or this commissioner would go away, I just don’t see it happening because it is completely contrary to the flow of history but we need to get away from an accommodation of FOI to a proper embracing of it.

“I would repeat Jim Wallace’s view of the culture of secrecy and say we now have a culture of compliance and in some respects, a slight slip back and an irritated culture of compliance and so bodies will use the legislation if they possibly can to frustrate the requests. I think we need to push beyond that and have professionalism and an audit trail and we need to stop the haemorrhaging of rights which is happening with these arm’s length organisations. One of my big disappointments as I leave office is not to get these additional bodies designated and my fear is that that is because FOI is seen as a burden and having arm’s length organisations gives public bodies a chance to not have that additional burden. That is a real concern for me. I don’t understand the rationale that the Government applied to not extending the designation last year.” I wonder now, having been in on the inside of political decision making, does he leave the commissioner’s office understanding politicians any better than he did when he was lobbying them for change as an environmental campaigner?

“What I see are two things: the straightforward professional and I see people doing a good job and bringing expertise to very difficult and sometimes obscure issues. The much more difficult area for me is the politics of decision making because I am not a politician and I have to put myself in the position of thinking, ‘can this do me or my party damage’ weighed against, ‘is it in the best interests of the public’ and that is a very hard judgement to make and it is where we tend to rub up against [each] other because the degree of harm, from my point of view, is very different from theirs.

“It’s given me a very considerable insight into politics that you can’t get from outside or indeed inside unless you are in a ministerial office. The challenges that they face are the dual challenge of running the country and maintaining the country’s confidence as demonstrated through the ballot box.

“However, it drives me demented, though, that people in public places destroy their careers because they had crossed a line and they must have known they were sailing close to the wind so why did they do it? On that, I am afraid, I am no nearer to understanding.” Has he enjoyed having the power of knowledge?

“I don’t regard it as power,” he laughs. “I can’t do anything with it because I either disclose it and everyone has it or I don’t disclose it and I then seal it off and don’t discuss it and will never disclose it so it just sits in here,” he says tapping his head.