Alistair Sloan, Advocate

OSIC Decison 42/2013: Mr Ackroyd and the University of St. Andrews

April 5th, 2013

I’ve been meaning to blog about this particular decision of the Scottish Information Commissioner for a couple of weeks now, but have just not had the time. On 14 March 2013 the Commissioner issued her decision regarding a complaint made to her by Mr Martin Ackroyd in respect of the way in which the University of St. Andrews handled an information request (Decision 42/2013).

The background is set out in paragraphs 1 – 6 of the Commissioner’s decision. Mr Ackroyd requested information in respect of E-mails received by a particular employee of the University. The employee had written an article on an internet blog. The employee later commented on the article alluding to embarrassing E-mails that he had been receiving as a result of the article. It was these E-mails that Mr Ackroyd had requested.

The University argued that it did not hold the information for the purposes of the Freedom of Information (Scotland) Act 2002 (FOISA) stating that it held them on behalf of the employee (thus they would fall outside of the scope of FOISA by virtue of section 3(2)(a)(i) of the Act). In the alternative it argued that even if it did in fact hold the E-mails that they would be exempt from disclosure under sections 38(1)(b) and 36(1) of FOISA. These exemptions relate to personal information and confidentiality respectively.

Mr Ackroyd was dissatisfied with the Universities response and sent a requirement for review to the University. In response the University upheld its original decision with modification. The University still argued that the E-mails were not held for the purposes of FOISA, but if they were they would also be covered by section 30(b)(ii) of FOISA which relates to information which if disclosed would or would likely be to inhibit substantially the free and frank exchange of views for the purposes of deliberation.

Mr Ackroyd remained dissatisfied and sought a decision from the Scottish Information Commissioner pursuant to s.47(1) of FOISA.

The first thing that the Commissioner decided was that at least some of the information held was environmental information within the meaning od Regulation 2 of the Environmental Information (Scotland) Regulations 2004 (EISRs). As a consequence the decision considers both FOISA and the EISRs.

The facts of the request get slightly more complicated. The employee in question had bene the convener of a seminar held at the University and the blog that was written related to that seminar; it was published shortly after. The decision notes that Mr Ackroyd drew attention to a certain comment in the blog piece “indicating that he [the employee] was commenting in his capacity as the convenor of the seminar” (paragraph 28). The decision also records (at paragraph 28) that the employee had commented on the blog and mentioned papers that he (the employee) had written on the subject in question. Mr Ackroyd argued that these two things together (along with other matters dealt with in paragraphs 29-31 of the decision) meant that the employee was acting in his capacity as an employee of the University.

The University argued that the life of an academic is such that the connection between work and private life is so fine and that sometimes they cross over. They argued that an academic might use their association with the university in order to gain some credibility in their private life rather than as an employee of the university. The University also argued that the convention of academic freedom created some independence between the University and its academics. “The University also stated that it (and universities in general) extended to academic communities a relatively high degree of space, freedom and autonomy to engage with academic disciplines and pursuits and, as a result, information may be created which it would not move to claim or exert control over.” (para35)

There are more to the arguments of Mr Ackroyd and the University, but for the sake of brevity and so as to avoid replicating the Commissioner’s decision in full I have not mentioned all the ones referenced in the Commissioner’s decision. They can be read in full in paragraphs 26-38 of the decision.

What did the Commissioner find?

The Commissioner decided that the seminar which had been chaired by the employee was part of the employee’s work at the University (paragraph 43). The Commissioner also decided that the blog post was a continuation of the discourse of the seminar which he had chaired in his capacity as an employee of the University (paragraph 43) and that the employees ongoing involvement in the discussion that arose out of the seminar cannot be separated from the employee’s work at the University (paragraph 44). Despite the personal nature of the e-mails the commissioner decided that they were held by the University for the purposes of FOISA (paragraph 49). Paragraphs 60-62 deal with whether the information was held for the purpose of the EISRs and the commissioner reached the same conclusion as she did in respect of section 3(2)(a)(i) of FOISA (paragraph 62).

The Commissioner then went on to consider the exemptions that the University would have sought to apply had it been the case it held the information (which the Commissioner determined it did). For the reasons set out in paragraphs 51-57 the commissioner found that section 30(b)(ii) of FOISA was not engaged and therefore not relevant. No consideration was given to section 36 as it would appear that the University may have stopped relying on that exemption.

The Commissioner ordered the release of the withheld information to Mr Ackroyd subject to some redactions made by the Commissioner.

Discussion

Before giving my thoughts on the decision I will note that I have only the Commissioner’s decision to go on. I have not seen the blog or the comments nor have I seen the E-mails in question.

This is an interesting decision and one of importance for the Higher Education sector. The decision explores some of the anomalies in the academic world that do not generally appear in other public authorities; namely the convention of academic freedom. However, the decision could have wider application beyond the Higher Education sector.

Should academics be worried about the impact of the decision? I would suggest that they should not be. It appears clear from the decision that where there is a genuine separation between the work undertaken by an academic on behalf of the University and that undertaken by the academic in a private capacity that the information will not be subject to FOISA.

For example, if an individual gives a lecture to an organisation because they are a specialist in the field and they mention their connection to a University I don’t think anything held on the University’s computer systems (or indeed the academic’s private systems) would become subject to FOISA simply because they establish their credibility by referencing the University at which they work. Only where that lecture was given in the course of the academic’s employment at the University would it become subject to FOISA.

It is clear that the balance between what an academic does privately and what they do as part of their employment at the University is finely balanced. Simply because an academic undertakes work in their spare time and the work is not such that the University would lay claim to it or it was not work which the University had sought the employee to undertake will not meant that it is not subject to FOISA or the EISRs.

It’s certainly an important decision and one that all FOI Officers in Scottish colleges and universities should have tucked away for reference to at a later time; it is not unlikely that similar situations will arise again in the future (especially given the public nature of academics work).
Police Scotland and Freedom of Information

March 25th, 2013

Next week the Police Service of Scotland will take responsibility for policing Scotland from the current eight police forces in Scotland. This will have implications for Freedom of Information, at least in the short-term.

The cost of handling an FOI request is likely to increase dramatically meaning that requestors may frequently have their requests refused under section 12 of the Act (excessive cost of compliance). The new single force will continue to run eight separate IT systems while new IT systems are procured and launched. Undoubtedly it will take some time for information held in paper form to be better organised taking account of the new single force structure. Therefore, searching for information held by the new force will be rather time consuming. In some requests the new force will be required to carry out the same searches within each of the boundaries of the eight forces; if some of the old forces held the requested information on multiple systems then you could be looking at more than eight almost identical searches per request. That’s a lot of staff time simply locating whether the information is held by the force.

It is likely that most requestors will only want the information as it relates to their old force area and so it might be worthwhile for the next year or so ensuring that when you are requesting information that you are as geographically specific as possible. For example, if you would have requested the information from only Strathclyde Police were it still in existence, then state in your request that you are only interested in the information held which relates to the old Strathclyde area.

Currently if you wish a nationwide view then you would be requesting the information from the eight forces and the cost to each force would be separate from the other forces. However, now you will be requesting it from a single body meaning the cost of searching within each of the old force areas is burdened by one organisation (the new single force). As a consequence of this it will be aggregated and might engage section 12 much more easily than before.

When the new force comes into existence it will be under a great level of scrutiny to ensure that it is delivering what is needed in Scotland, but it may well become more difficult for the public and journalists to hold the force to account through FOI.

It will certainly be worthwhile watching the responses from the new single force to see if there is an increase in the number of section 12 refusals. An increase would mean less public scrutiny of a very large public authority with an enormous budget and a significant amount of power.
ECHR, international law and Abu Qatada

March 10th, 2013

Last week it was reported that the Home Secretary wanted to take the UK out of the European Convention on Human Rights (ECHR) and this week she repeated that objective, if the Tories won the 2015 election. Her cabinet colleague Chris Grayling (Secretary of State for Justice and Lord Chancellor) has said that the Tories will repeal the Human Rights Act 1998 (HRA) should they win the 2015 election. The HRA and ECHR has become the place for politicians (particularly from the right of politics) to lay the blame when they don’t get their own way. The very point of the HRA and the ECHR though is to prevent the State from acting in a way that is incompatible with basic rights and freedoms recognised as being essential in a free and democratic society.

One of the most recent frustrations of the UK Government is the inability of it to return Abu Qatada to the Kingdom of Jordan where he is wanted on terrorism charges. Abu Qatada’s fundamental rights applicable to him as a human being have thus far prevented him from being deported from the UK to the Kingdom of Jordan (although the Special Immigration Appeals Commission prevented his extradition on the basis of his right to a fair trial over fears evidence obtained through torture would be used in his trial). However, the ECHR is not the only prohibition in relation to torture.

There is an internationally recognised prohibition on torture. This prohibition has achieved jus cogens status. Jus cogens is a fundamental principle of international law which is accepted by the international community as a norm from which no derogation is ever permitted. In other words, there are no circumstance under international law in which it is permissible to torture an individual; even someone who is as odious as Abu Qatada is alleged to be. The International Criminal Tribunal for the Former Yugoslavia recognised the prohibition of torture as having achieved jus cogens status in international law in its decision in Prosecutor v Furundzija (see paragraph 153). This means that the UK is bound by international law not to torture anyone. Of course, it never was the case that the United Kingdom had or was going to itself torture Abu Qatada; however, that brings us onto another principle of international law: non-refoulement.

Non-refoulement is a principle of customary international law. Customary international law arises from custom; which is an established pattern of action or behaviour that can be objectively verified. In the international context it refers to the legal norms that have developed through the customary exchanges between states over time. It is considered by the International Court of Justice (ICJ) and the United Nations as one of the primary sources of international law.

Non-refoulement as a principle is concerned with prohibiting the sending of one individual from one State to another where they will be tortured or face serious irreparable harm.

The principle of non-refoulement is primarily concerned with the area of international law covering refugees. The 1951 Convention on the Status of Refugees specifically prohibits non-refoulement in Article 33. However, it has been included in other international treaties such as the United Nations Convention against Torture or other cruel, inhuman or degrading treatment or punishment (CAT). Article 3 of CAT clearly prohibits the expulsion, return or extradition of a person to another state “where there are substantial grounds for believing that he would be in danger of being subjected to torture”. The United Kingdom signed CAT on 15 March 1985 and ratified it on 8 December 1988. There is an argument to be made that non-refoulement is at the very least customary international law if not jus cogens. However, the UK is bound by its obligations under CAT even if it were not considered to be customary international law or jus cogens.

Essentially, with or without the ECHR the United Kingdom would have been bound by international law not to extradite Abu Qatada to the Kingdom of Jordan while there were substantial grounds for believeing that he would have been tortured. Without the ECHR though there would have been no effective remedy for Abu Qatada to force the United Kingdom to adhere to its international obligations. That is because the United kingdom is not signatory to the first Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR; which also prohibits torture and non-refoulement) thereby preventing him (or indeed anyone else) from pursuing a case before the Human Rights Committee (the body responsible for the interpretation and enforcement of the ICCPR). The UK does not accept the right of individuals to petition the Committee against Torture (responsible for CAT) under Article 22 of CAT. The ICJ is only for disputes between states and an individual is therefore unable to pursue a claim before that Court against a State. Without the HRA Abu Qatada (or indeed anybody else) would be unable to pursue human rights claims before the UK Courts. In other words, the United Kingdom would be free to act against its clear international obligations.

What is the point of all of this?

The main point is to illustrate that the ECHR is not some unusual document in what it does. There is a substantial body of international law protecting the human rights of individuals. The United Kingdom is under an international obligation not to torture an individual and also not to expel, extradite or return an individual to a state where they are likely to be tortured (or face irreparable harm). With or without the ECHR the UK would have faced enormous international pressure not to transfer Abu Qatada to the Kingdom of Jordan while there was a substantial risk of him being tortured by the Jordanian authorities.

The international law exists to protect individuals; especially individuals, like Abu Qatada, who are at substantial risk of torture because of their activities. Domestically we have the HRA incorporating elements of the ECHR into our law. It’s not perfect and there is a lot more that could have been included into the HRA to make it a fuller human rights document. However, it is a substantially good thing and it largely reflects the position in international law.

The Tories simply want to leave the ECHR to avoid situations like Abu Qatatda; in essence to decide just who human rights apply to and who they don’t apply to. It’s not about reclaiming British sovereignty, but rather about trying to create a situation where they can breach international law with little or no international intervention to prevent it from happening (i.e. being able to do exactly what they want when they want).

Leaving the ECHR would almost certainly increase the pressure on the UK to adopt optional protocol 1 to the ICCPR or permit individuals to refer matters to the Committee against Torture under Article 22 of CAT. If the UK left the ECHR and did not undertake one of the two options just mentioned it would become one of very few states with no substantial international oversight of the way it treats those within its jurisdiction and that would be an unfortunate position to be in.
The importance of FOI training in public authorities

March 8th, 2013

A decision notice published by the Scottish Information Commissioner yesterday (7 March 2013) highlights why it is important that all staff within public authorities have at least a basic working knowledge of the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004.

Decision 032/2013 concerned an information request made to NHS Fife. The applicant made an information request to NHS Fife on 2 August 2012 to which NHS Fife responded on 5 October 2012. This represents a significant delay on the 20 working days permitted by section 10(1) of the Freedom of Information (Scotland) Act 2002. The decision notice does not give any reason as to why it took NHS Fife so long to respond to the information request.

On 18 October 2012 the applicant wrote to NHS Fife requesting a review of their decision. The request for review was sent directly to a particular member of staff with whom the applicant had been having protracted correspondence. Unfortunately for NHS Fife that member of staff did not “recognise the significance” of the request for review under the Freedom of Information (Scotland) Act 2002 and consequentially did not take the action required to ensure that NHS Fife was able to respond within the timeframe permitted by section 21(1) of the Act (which is 20 working days).

NHS Fife’s explanation that the member of staff who received the request did not recognise the significance of a request for review under FOISA would suggest that something has went wrong procedurally and most probably around staff training. All staff within a public authority should be able to spot information requests and requests for review. Having identified an information request of request for review all staff should know what to do with such correspondence. When staff are not able to perform these tasks it can lead to problems such as in this case where a requirement for review went unanswered beyond the statutory deadline. As a consequence an application was made to the Commissioner and a decision notice has been issued.

This decision notice should serve as a reminder as to how important that all staff (whether they routinely deal with information requests or not) should have at least a basic knowledge of information access rights to ensure that public authorities comply with their obligations under the various access regimes.
Criminal record checks, Article 8 and fairness

January 31st, 2013

On Tuesday the Court of Appeal issued an important judgment on the disclosure of criminal records and its relationship to the right to a private and family life; protected by Article 8 of the European Convention on Human Rights (ECHR) as incorporated into domestic law by the Human Rights Act 1998.

The main question before the Court was whether the requirement for applicants to certain types of job to disclose all previous convictions was incompatible with the ECHR. The Court of Appeal held that the requirement to disclose all convictions was disproportionate to the aims of the policy; consequentially it found that there was a breach of Article 8. Yesterday, the Government announced that it intended to appeal that decision to the United Kingdom Supreme Court.

The decision by the Government to appeal the decision to the Supreme Court is a disappointing one. It demonstrates a lack of commitment to their so called “rehabilitation revolution”. Not so long ago the Prime Minister gave a major criminal justice speech which promised a “tough but intelligent” approach to criminal justice from his Government. The decision to appeal this Court of Appeal seems to fly in the face of the promise of an intelligent approach to justice.

Clearly there is a legitimate aim in ensuring that those who are genuinely unsuitable to work with children or other vulnerable people are prevented from doing so. No sensible person is suggesting that this shouldn’t be the case. However, the current approach is really rather ridiculous.

Each and every single one of us gets things wrong; we make bad decisions and that can have consequences for us. If we commit a criminal offence and that is detected then quite rightly there will be a consequence: a fine, community service or even a prison sentence. Those who break the law are punished by the Court in the way that the Court; taking account of all the circumstances of the case, decides is appropriate.

Once a person has served their sentence; the punishment for the crime that they have committed, they should be able to get on with their lives. There should be no restrictions placed upon their life unless absolutely necessary for the protection of the public. Rehabilitation requires that people are able to get jobs and when whole professions are closed off to them because of some minor convictions (some of which may well be extremely old) then this becomes significantly harder; it may even act as a disincentive for a person to desist from crime.

There were some fantastically stupid examples of criminal convictions that were so old that they may as well never have existed preventing people from standing as candidates for the Office of Police and Crime Commissioner in their area. Some of these convictions were40 years old and the individuals in question had dedicated their life to public service. How can it be right that convictions that old can still be considered relevant when the individuals have clearly demonstrated that they have been successfully rehabilitated? It just seems to be part of a never-ending punishment that our society largely considers it acceptable to place upon those who transgressed the law in their past.

It is entirely possible to devise a system which ensures that vulnerable groups are protected from those who pose them harm whilst also ensuring that those who have changed their lives or have simply made a few bad choices in their past can get on with life and not be forever reminded of and plagued by their past. It’s not easy to do, but that shouldn’t stop the Government from devising such a system; it might well take them some considerable time. However, if we want to progress as a society and ensure that those who want to be rehabilitated can actually be so; then we need to ensure that we provide an environment in which that can be achieved. The present system cannot facilitate that and the Court was quite right to find that there was an unjustified interference with a person’s Article 8 rights as a consequence. The Government should be spending time and money on a replacement system rather than appealing to the Supreme Court.
Criminal Legal Aid Contributions, Professional Representation and Justice in Scotland

January 30th, 2013

Yesterday evening the Scottish Parliament voted by a majority of 9 to pass into law the Scottish Civil Justice Council and Criminal Legal Assistance Bill into law. The Bill will now be submitted to the Queen for Royal Assent. It was a disappointing end to a hard fought campaign by a wide range of people to try and prevent Part 2 of that Bill being passed. However, it was always going to be an impossible task with the Government having a majority in Parliament.

The first part of the Bill; the establishment of the Scottish Civil Justice Council, was generally uncontroversial and was the result of a lengthy piece of work submitted to the highest levels of scrutiny. The Scottish Civil Justice Council came as a consequence to the review of civil justice in Scotland carried out by the now Lord President, Lord Gill. It is a shame that this element of the Bill was overshadowed by the second part of the Bill. Had the two been separate it is likely that the Scottish Civil Justice Council part would have received unanimous support in the Scottish Parliament.

The significant expansion of contributions to criminal legal aid as a result of this legislation will have a profound impact on justice in Scotland. I’m not going to write at great length on the merits of the Bill as I have done that in a number of posts (and others have written elsewhere much more eloquently than I have). The proposals will undoubtedly lead to a number of appeals under Article 6 of the European Convention on Human Rights (the right to a fair trial). The Government and Presiding Office (presumably with legal advice) are both happy that the contents of the Bill are compliant with the European Convention on Human Rights; however, there is the very real possibility that the contributions system will begin to give rise to “devolution minutes” once it begins to take hold in the system. That will certainly be something to keep an eye out on to see what happens in that respect.

It is clear from speaking to practitioners in person and through social media that there is a very real anger over yesterday’s result. It is just one of many things to have arisen over the last few years that have caused anger. Some of that anger is directed towards the Law Society of Scotland; particularly in their representation of the profession in these matters.

It has been reported that there was to be a challenge lodged to the Society’s position as the sole representative body of Solicitors in Scotland which will be founded upon Article 11 of the European Convention on Human Rights. I am not a solicitor and I have not had many dealings with the Law Society of Scotland. I only know what others have told me (and I’m not inclined to make my own decision purely upon the basis of third party complaints). However, it has always been something that has intrigued me about the legal profession. I’m a supporter of Trade Unions and the representative functions that they undertake. However, I’m equally supportive of a person’s right to choose their representative body (and to elect not to belong to such a body). That goes not just for lawyers, but for others who have a single statutory representative body with no choice as to who they have representing them.

I think it is only right that if people want a different representative body that this is a choice that they have. It will be interesting to see if this case goes ahead and what the outcome of it might be; it could have a profound effect on the United Kingdom extending beyond the legal profession.

The fight to ensure justice in Scotland will no doubt continue as the programme for reform of the criminal justice system continues over the coming years. There are proposals in the pipeline that will likely gain similar; if not greater, reactions from the legal profession (corroboration and contracting to name two). It’s an unsettling time in the criminal law for Scotland; but it’s an equally interesting one.
‘Thinking time’ and Freedom of Information

January 25th, 2013

Yesterday a debate was held in Westminster Hall on the Government’s response to the Justice Committee’s post-legislative scrutiny of the Freedom of Information Act 2000. The debate was very poorly attended by MPs; but those few who did ensured a good quality debate was had.

Of concern though was the government’s response; and in particular its continued desire to see how it could include “thinking time” into the cost calculations under section 12 of the Act. Most are agreed that including such time into the cost calculations would significantly damage the Freedom of Information Act. Including such time into the cost calculations would not help reduce the burden of “frivolous” or “vexatious requests” as they are most likely to be simple requests which require little time. The requests they would affect are the ones where the public interest has to be considered; and in particular, those requests where the public interest is finely balanced.

We would begin to see more requests being refused simply because the complexity of establishing exactly where the public interest lies will take too long; that will undoubtedly mean information which could expose wrongdoing or corruption in public office is not released. That would fundamentally undermine the Act.

Another example of requests that might be covered are ones which produce a significant volume of information. Imagine another MPs expenses type request which produces volumes of recorded information. The information could easily be retrieved within existing cost limits; but when thinking time becomes included in the request such a request would be refused (not necessarily because it’s difficult to establish where the public interest lies, but because each piece of recorded information has to be considered for disclosure).

Allowing thinking time will also create a disparity between public authorities. It’s a subjective thing that is not easy to consider objectively. One FOI officer might be able to read the same document much more quickly than another FOI officer.

The introduction of “thinking time” would fundamentally undermine and significantly damage the FOIA and must be rigorously opposed by Parliament to ensure that the record of the FOIA as a strong piece of legislation is not destroyed.

In the words of Iain Gray MSP in a recent debate on FOI in the Scottish Parliament; “No Government likes FOI. FOI is always inconvenient, but it is the right thing.” The UK Government may not like FOI, but it is the right thing to do and they must not be allowed to weaken the Act.
Changes to FOI in Scotland approved

January 17th, 2013

Yesterday the Scottish Parliament passed the Freedom of Information (Amendment) (Scotland) Bill which will make some amendments to the Freedom of Information (Scotland) Act 2002 (FOISA). The Bill will now go forward for royal assent. The Bill as finally approved by the Parliament can be found here.

While the Bill does make some important and much needed changes to FOISA, there is much more that the Parliament could have done to strengthen the Bill and the message that FOI is here to stay in Scotland.

One of the most controversial elements of the Bill was the removal of the public interest test in relation to information which is exempt under the so called ‘Royal exemption’. The Scottish Government, to their credit, did listen to oral and written evidence submitted to the Finance Committee on the Bill and removed that amendment from the Bill at Stage 2. The debate about the Bill then moved to what was missing from it rather than what was contained within it; primarily because what was missing was of much more concern than what was there.

One of the most significant changes which was passed by the Scottish Parliament can be found at Section 5 of the Bill. This changes the time limit for proceedings under s.65 of FOISA. Section 65 creates a criminal offence to alter, deface, block, erase, destroy or conceal a record held by the authority with the intention of preventing disclosure. Currently, FOISA means that a prosecution for an offence under this section can only be initiated within 6 months of the offence being committed. With the timescales permitted by FOISA it was impossible for a prosecution to be brought because it could be as many as 4 months before the request gets to the commissioner and could be 6 months before the Commissioner’s office is even aware that a s.65 offence may have been committed. The change that will come about as a result of this Bill means that a prosecution can be brought where it is done so within 6 months of evidence that the prosecutor believes is sufficient to justify the proceedings coming to the prosecutor’s knowledge (so long as it is not more than three years since the offence was committed).

I am not suggesting that there are significant numbers of these offences being committed, but there is little doubt that some will have been since 2005 and the impossibility of a prosecution ever being brought might have acted as an incentive for an authority so minded. The Bill passed by Parliament yesterday reinforces the fundamental nature of FOI and that those who seek to frustrate the FOI process will be prosecuted for it. It will be interesting to see if prosecutions do arise once the amendment comes into force.

Another significant change is at s.4 of the Bill and it relates to when information becomes a historical record. This will hopefully mean that information held by public authorities will be released much quicker than it might otherwise have been and that can only be a good thing for transparency and openness in public life.

Since the Bill was first published there was one thing that was noticeably absent and that was provision to extend the coverage of FOISA to bring (at the very least) the public’s FOI rights back to where they were in 2005. Since FOISA was passed in 2002 and came into force in 2005 there have been significant changes in the way public services are provided. Local authorities have transferred significant amounts of their work to private companies (many of which are publically owned); housing and leisure facilities are two prominent examples.

When these functions were carried out by local authorities the information held was subject to FOI and could be obtained to scrutinise work in these often important areas, but as these activities have been transferred to these ‘arms length organisations’ (Aleos) they have stopped being subject to FOI and people’s FOI rights have been reduced.

The Deputy First Minister made much of the designation power at s.5 of FOISA (to which some changes have been made to strengthen ministerial accountability over the use (or lack of) of these powers) and how it was the Government’s intention to use the powers. The current Government has been in power for almost six years and in that time not a single s.5 order has ever been made by them. The previous Government had not made any such orders either, but they left power only two years after FOISA came into force and were in power during a time when FOI was still bedding down and its extent and coverage was still, to an extent, being worked out. The fact that for six years the current Government has made no real effort to ensure that FOI rights are maintained, let alone extended in appropriate cases, is a significant failure. The Scottish Government can try and cover it up in any which way that they choose, but the fact remains that they have not issued a single s.5 order.

The Bill was, in the Government’s view, never about extending coverage. However, it should have been. While Parliament was spending time debating and considering FOI in Scotland it would have been a perfect opportunity to at least include those organisations previously consulted on in the coverage of FOISA. An amendment was moved yesterday by Iain Gray MSP to include Glasgow Housing Association into the list of Scottish Public Authorities, but that was defeated. A move to insert a more general amendment that would have made information held by a significant number of Aleos subject to FOISA was also rejected by the Parliament.

The Government frequently tells of its commitment to openness and transparency; indeed it was referred to many times during the passage of the Freedom of Information (Amendment) (Scotland) Bill through the Scottish Parliament. However, the Government could have demonstrated that they truly adhered to that commitment by agreeing to include those organisations previously consulted over into FOISA.

The Deputy First Minister has committed to issuing at least 2 s.5 orders; we really must see a substantial one issued this year and preferably before the summer. Anyone in Scotland who believes in FOI must now ensure that pressure is put on the Government to keep its commitment to use s.5 and to get it to do so early.

Iain Gray MSP put it well in the chamber yesterday when he said:

The point is that FOI legislation tests a Government’s moral fibre. No Government likes FOI. FOI is always inconvenient, but it is the right thing.

The Bill certainly has made some important and much needed changes, but it fell far short of what was needed.

The full Stage 3 debate can be read in the Offical Report of the Scottish Parliament
Government responds to Justice Select Committee on FOIA

December 6th, 2012

Almost one week ago the UK Government finally issued its response to the Justice Committees detailed and quite frankly excellent post-legislative scrutiny of the Freedom of Information Act 2000. I am now finally getting round to putting my thoughts on the Government’s response to the Justice Committees report (although I have already written to my MP to highlight some of my major concerns with the Government’s response).

I don’t wish to give the impression that the Government’s response is a complete disaster for Freedom of Information; there are many good and bad things about their response. I will start first with things that (in my view) are worth highlighting as “good” things from the Government’s response before turning to the (in my view) “bad” things.

To be celebrated is the clear indication from the Government that they do not consider their own “open government” agenda as being a replacement for FOI. The Government’s response described the two agendas as “complimentary” to one another. This is a clear recognition by the Government that Freedom of Information plays an important role in our democracy. The Justice Committee said in their report that the FOIA “has been a significant enhancement of our democracy”.

Another big thing to celebrate from the Government’s response is that FOI requests are to remain free. There was a push by a number of public authorities during the evidence stages of the post-legislative scrutiny (which was evident before the post-legislative scrutiny and after) for there to be charges for making information requests. The Government isn’t convinced though and has ruled out charging for requests saying:

The Government agrees with the Committee’s assessment that charging for FOI requests would have an adverse impact on transparency and would undermine the objectives of the Act.

This is welcome news because we only have to look to Ireland to see what damage charging for requests can do to Freedom of Information.

One final thing from the Government’s response I personally think is worth celebrating is a change to the rules on prosecuting authorities under s.77 of the Act. Currently a prosecution under s.77 has to be launched within 6 months from the date of the offence. It can easily be more than 6 months since the offence before the Information Commissioner’s Office begins to investigate a complaint under s.50 (a likely time for a s.77 offence to be discovered). The Government has rejected the Justice Committee’s proposals to make it an “either way offence” (meaning it could be tried in the Crown Court); however, it has indicated that it will change the Act so that the six months to bring a prosecution starts when the offence is discovered rather than from when it is committed. This means that if the ICO discovers s.77 offences it can now prosecute them. The Information Commissioner did say in evidence to the Justice Committee that his office had seen evidence of destruction of information after a request had been made (an offence under s.77) but they had simply not been able to get them to court in time.

Having looked at the things worth celebrating from the Government’s response; it is time to turn to the things that are a cause for concern.

Some people have placed the first thing that I wish to address in this section as something to celebrate. However, I do not share that view and I will explain why I consider it to be a bad thing. In their report the Justice Committee suggested making the timeframe for internal reviews statutory. This is the position in Scotland under the Freedom of Information (Scotland) Act 2002 (s.21(1) provides that a review must be carried out promptly and no later than the 20th working day following receipt). The Government has decided not to implement this recommendation and has instead suggested providing guidance in the s.45 Code of Practice on the conduct of internal reviews. There is currently advice on timescales for the carrying out of reviews; that is provided by the Information Commissioner’s Office in ‘Good Practice Guide (No. 5)’ which sets out a timescale similar to that found within s.10(1) of the FOIA for initially responding to a request.

The problem is that a great number of authorities seem to frequently take considerably longer to conduct reviews than the time set out in the Commissioner’s Guidance. Some of these authorities are central government departments; which doesn’t hold out much hope for compliance with guidance in the s.45 Code of Practice. I can’t see how providing guidance to deal with a failure to apply guidance as to good practice will address the problem. It seems to me that building in a statutory framework on internal reviews is what is needed here (as is tightening up the public interest extension at s.10(3) of the Act). It is important to note though that there are a great many public authorities who conduct internal reviews diligently and don’t kick them into the long-grass. It is also important to note that the Government is of the view that reviews should be carried out quickly. I don’t see why they can’t put that view into statute rather than a Code of Practice.

Another concern is the Government’s indication that it will continue to consider what else could be included in the cost caulcations. For those with a limited knowledge of FOI; there exists the “appropriate limit” which if a request exceed the public authority can refuse to comply with the request. The current appropriate limit is £600 (for central government) or £450 (for other authorities). Furthermore, if the time taken to comply with the request exceeds 24 hours work (for central government) or 18 hours work (all other authorities) then the public authority can refuse to comply with the request. In respect of time taken to deal with the request there are certain activities which cannot be included in the calculation. The time taken to consider whether the information can be disclosed or the time taken to redact exempt information currently cannot be included. The Government is considering whether both of these activities could be included in these calculations.

There is a major problem here in that it is hard to objectively judge reading and redacting time. One FOI officer in one authority might take longer to read and consider information than another FOI officer in another authority considering the same information. It becomes about the ability of individual FOI officers. Moreover, it risks meaning that large volumes of information might be refused simply because it will take a long time to consider the information. It would also mean that cases where the public interest is finely balanced could be refused because it will take too long. This could conceivably prevent important information exposing wrongdoing in a public authority from being revealed. It would, in my view, fundamentally undermine the purposes of the FOIA. The Government is also considering slightly reducing the current 24/18 hours limits.

Another issue, which I hadn’t initially picked out, is the Government’s indication that multiple requests by one person on unrelated issues to a public authority could be grouped together. Currently, making multiple requests on the same (or substantially similar issues) can be grouped together for the purposes of the repeated/vexatious exemption. Permitting the grouping together of unrelated requests by a named individual or group will likely harm journalists. One of the fundamentals of the FOIA is that it is supposed to be “applicant blind” there is no way that such a change could be implemented which wouldn’t harm journalists without giving consideration to the identity of the applicant. Imagine the effect on large organisations like the BBC or large national newspapers that might make a large number of requests on different issues to public authorities. As a result of this change a request which could uncover wrongdoing could be refused because they’ve exceeded their “quota” of FOI requests to the public authority.

Another concerning issues is the Government’s apparent intention to extend the use of the so called “ministerial veto”. This would be concerning if the veto was to be used widely an in circumstances that are not exceptional. The point of the ICO and appeals from there to tribunals and the courts is to allow independent people to consider the request and information objectively. It would undermine the purposes of FOI if the Government were regularly to become the final arbiter of what information they hold gets released. We’ve already seen an increased use of the veto since the 2010 election; most recently to hide the content of letters Prince Charles had sent to a number of Government departments.

On the whole; there are some excellent things from the Government’s response that will strengthen FOI. However, there are also things which are of concern and could weaken the FOI regime and should be opposed if the Government tries to introduce them. No doubt there will be further blog posts on FOI to come as both the UK and Scottish Government’s go about amending the respective FOI legislation.

If you’ve read the blog post to the end then thanks and congratulations! I could have said much more, but didn’t want to write a full-blown essay on the Government’s response. The Government’s response can be read here.
Why #ProtestForJustice really does matter

December 3rd, 2012

So much excellent writing has been produced on the ‘Protest for Justice’ movement that has taken hold of Scotland’s legal profession. The movement is in response to the Scottish Government’s plans regarding criminal legal aid.

The concern from the legal profession is that the proposed changes to legal aid will harm access to justice for the poorest and most vulnerable in our society. They are the people who are working and contributing to society, but are low earners who are living on the breadline. They can ill afford the costs of living let alone significant contributions towards legal aid should they find themselves in the unfortunate position of requiring the services of a defence lawyer.

I have written before on just why criminal legal aid matters to everyone in society and not just those that people consider to be ‘criminals’. It provides a few examples of how everyday situations can result in an otherwise law abiding person requiring the services of a criminal defence solicitor. There are many more such situations where something a person does every single day of their life can suddenly result in finding themselves in a living nightmare facing, sometimes very serious, criminal charges.

Most of us knew that when the decision to strike was taken that there would be little support from the general public in Scotland. Criminal lawyers are not particularly well liked by many in society. They are seen to be earning salaries which often only partners in the bigger commercial firms have the potential to earn and while earning these salaries they are engaging in activities which society appears to find morally repugnant.

I’m not a criminal defence lawyer, but those who know me will know that criminal defence is the area that I want to practice in when I complete my studies in 2014. When people ask me what type of law I wish to practice I get the same questions that those already practicing in the field get. These questions are flawed in the presuppositions they make and are based on an understanding of the criminal justice system that is ill-informed and could even be described, on occasions, as prejudiced.

The role of a criminal defence lawyer is multifaceted. However, the central principle is to ensure that the accused receives a fair trial (and that includes the guilty). There is absolutely no obligation upon any individual to convict themselves. A guilty person is perfectly entitled to run a trial and put the Crown to proof. The burden of proving the accused’s guilt rests with the Crown. It is for the Crown to prove the accused’s guilt and not for the accused to prove their innocence. The system is built in this way primarily to take account of the power of the State against the power of the accused.

The State has at its disposal a vast array of resources that an accused person does not. To begin with; the State has a professional investigation team (the police) to gather the evidence supporting the view that the accused is guilty of an offence. It then as a professional legal team (the Crown Office and Procurator Fiscal Service) to assess the evidence, build the case and present it in court. The professional legal team can instruct the investigation team to conduct further investigations, to take statements from particular individuals and conduct further (expensive) forensic examinations.

On the other hand the accused has their single defence lawyer (if the case is going to the High Court that lawyer will often be assisted by Counsel in the same way that the State is often assisted by Counsel in the High Court). They don’t have an investigative team with the resources and experience of the police. The knowledge and experience gap between the accused and the State is somewhat filled by the defence lawyer. They will assess the evidence obtained by the Crown and advise the client based on that evidence. If the defence lawyer can see no possible or realistic defence to the charges brought against the individual then the advice would be to plead guilty. However; it is only advice and not an instruction. The accused might not feel as though they are guilty or they might be able to bring something to the evidence at a later date which casts a different light on the Crown’s evidence. In both circumstances the accused has the right to put the Crown to proof.

Putting the Crown to proof is simply telling the Crown: ‘you think I’m guilty, so prove it’. There are incentives built into the system to persuade a guilty accused to enter a guilty plea. For example, pleading guilty at the earliest opportunity can attract up to a one third discount on the sentence given by the Court. In serious cases a third can be a considerable amount of time off a prison sentence. You might argue that it’s not fair to reward an accused person for doing “the right thing”; that reducing their sentence is an injustice to the victim of the crime. One could view it that way; or one could consider that a guilty plea can save the stress of the complainer having to give evidence to prove that they are a victim of a crime. It also saves expensive court time and frees up the police and prosecution to focus on other crimes that have been committed.

The role of a criminal defence solicitor is essential in ensuring both the integrity and fairness of the criminal justice system. It is essential that all those who cannot afford to pay for a lawyer can obtain the specialist services that they offer when facing a criminal charge. If it was you who was in the dock protesting your innocence you would want someone fighting your corner. Don’t let the Scottish Government remove that from you and others.

Further Reading

Sarah Prentice: Why I won’t desert the ‘sinking ship’ (Sarah Prentice, Scotsman)
Vulnerable left to count the cost of justice (Aamer Anwar, The Scottish Sun)
Courts face widespread disruption as angry lawyers plan first national strike (Gareth Rose, Scotsman)