Alistair Sloan, Advocate

Public interest test for royal exemption to stay

November 28th, 2012

Yesterday Deputy First Minister of Scotland Nicola Sturgeon MSP announced that the Scottish Government would be moving amendments at Stage 2 of the Freedom of Information (Amendment) (Scotland) Bill to remove the currently proposed absolute exemption in respect of correspondence with senior royals. At the same time the Deputy First Minister announced that the Government would be proposing amendments which would require the Scottish Ministers to keep the list of bodies covered by the Freedom of Information (Scotland) Act 2002 under constant review. Currently, there exists only a discretionary power upon the Scottish Ministers to do this.

The amendments to the so called “Royal Exemption” (section 41 of FOISA) were heavily criticised by a great number of people who provided evidence to the Finance Committee. The Scottish Information Commissioner was heavily critical of the proposed amendment in her written evidence. The Campaign for Freedom of Information in Scotland was also critical of it in their written evidence and (for what it’s worth) I also criticised the amendment in my own written evidence to the Finance Committee (see paragraphs 8-16). An amendment to the UK Freedom of Information Act making the exemption absolute was passed into law, but it had avoided proper scrutiny having been entered into the Bill at the end stages of Parliament’s consideration. There has been a lot of controversy surrounding the ‘Prince Charles letters’ (the release of which was vetoed by the Attorney General recently). The argument against the introduction of the absolute exemption was essentially that it cannot be in the public interest to remove a test which considers the public interest. It is with relief that the Government now proposes to remove the amendment and it is hoped that Parliament will vote in favour of its removal.

There has also been a great deal of consideration about the bodies covered by the Act. FOISA was passed in 2002 and came into force in 2005. Since its coming into force there have been significant changes in the way public services have been organised and delivered. However, as these changes have happened the list of bodies covered by FOISA has remained largely unchanged (it has only been changed by primary legislation which has created or abolished statutory bodies). The Scottish Ministers currently have the power to order that new bodies be covered by the legislation. It has never been used and is currently discretionary. The Deputy First Minister has announced that the Act will be changed to require the Scottish Ministers to keep the list of bodies covered by the Act under review. This is important because as public authorities start using private companies and ALEOs to perform public services, it is important that information access rights are maintained and not lost. Both the previous and current Information Commissioner’s spoke of their concern at the erosion of information access rights in Scotland as did the Campaign for Freedom of Information in Scotland. I have also suggested a number of bodies that ought to be covered under the Act such as COSLA, The Law Society of Scotland and Faculty of Advocates (in respect of the regulatory functions only). There are many others such as Housing Associations that ought to be covered by the legislation.

While the Freedom of Information (Amendment) (Scotland) Bill is still imperfect in that it doesn’t restore information access rights which have been lost over the last 7 years; it will be significantly improved by the amendments announced by Nicola Sturgeon.
Why criminal legal aid matters to everyone and not just ‘criminals’

November 8th, 2012

Some people believe that they will never require the service of a criminal lawyer; they obey the law and just go about life. Every day when we wake up we do not know what the day will bring. It could pass quite uneventfully, or something terrible could happen which results in being detained by the police and/or charged with a criminal offence.

Some examples might make this a bit clearer:

Example 1

It’s been a long at work and you get into your car to drive home. You didn’t sleep too well the night before; the baby kept you awake most of the night. As a result, you’re rather tired by the end of the day. You’re driving along the road and you momentarily lose your concentration and before you know it you’ve been involved in a collision. It’s fine; the insurance will sort it out. However, a passenger in the car you hit dies as a result of the accident. Suddenly, you find yourself in the middle of a police investigation. You’re later detained by the police and suddenly find yourself needing the services of a criminal defence lawyer. You get one and they steer you through the interview, but the decision is to charge you with causing death by careless driving. It’s serious; you’re facing a prison sentence. You‘re going to plead guilty, but you want the shortest sentence possible so you instruct a defence lawyer to represent you. You’re not particularly well off, but suddenly you’re facing a three figure bill as a “contribution” towards your legal aid costs. You’ve always tried to live a good life; you don’t steal things and such like. However, you’re in the middle of the criminal justice system facing a prison sentence of up to 14 years.

Example 2

A lot of people like to go out and have a good time; often drinking far too much and becoming intoxicated with alcohol. Someone rubs you up the wrong way and you give him a bit of a punch and they fall over hitting his head off a nearby table. Unknown to you at the time you punched them the victim has a weak skull and dies as a result of your actions. Thinking everything would be ok, but without checking, you walked away; you didn’t summon any help. A few days later there is a knock at the door and a couple of police officers are on your doorstep. They inform you of what had happened and detain you on suspicion of murder. A little extreme you might say, but entirely possible. You’re suddenly, out of a drunken shove, facing the most serious charge in our criminal law and the possibility of serving a life sentence. Suddenly, you need the services of a criminal defence lawyer. In the end you get charged with Culpable Homicide, but that’s still a serious offence potentially carrying some serious time in prison (up to and including life imprisonment). You’re now also facing a significant contribution towards your legal aid.

Example 3

A third and final example of how easily it is from your life to turn into a living nightmare where you, an otherwise innocent individual, find yourself caught up in the criminal justice system as the accused. Some new neighbours move in next door. You don’t get on with them and a dispute begins between you and them. Things don’t start off too bad at first, but the quickly escalate. One day you’ve had a bit too much to drink and you start having an argument in the street with said neighbour. Another neighbour calls the police who turn up and you end up back at the police station accused of committing a breach of the peace. You think you’re fine and don’t get a lawyer at the police station. Things don’t go quite how you expected them to and you’re charged with committing a breach of the peace. You now consider that you need a lawyer, but when you find out that you’re going to have to make a contribution of your costs you decide you can’t afford to instruct a lawyer and you go it alone trying to represent yourself. Any decent solicitor will tell you this is a bad idea; not because they lose out on fees, but because it usually ends up badly for the accused. A non-legally trained individual trying to defend themselves against the might of the state which has money and qualified lawyers at its disposal is a significant imbalance in power and really isn’t going to end well. Yes, the court will try and assist an unrepresented accused, but there is a limit to what the Court can do. In this case it goes badly for you and you’re convicted of a breach of the peace. You now have a criminal record; a criminal record that might have been avoided had you been professional represented by a defence solicitor. A solicitor might not have got you acquitted, but they could have worked to reduce the level of fine or community service you get.

All of the above three examples sounds farfetched and extreme; “it’ll never happen to me” you might say. However, they are examples of what could happen to any one of us on any given day (and there are many, many more). All of them resulting in an otherwise law abiding citizen being caught up in the criminal justice system and needing the professional services of a criminal defence lawyer. One day it really might be you and you are in need of criminal legal aid. However, the legal aid has dwindled; it’s almost impossible to get because of government reform and requires you to put up considerable amounts of money that you simply might not have. If you’ve never thought about it before I challenge you to think of all the things you do in a day which could lead to you needing the services of a criminal lawyer; I’m sure if you really think about it you will come up with many.

This is why criminal legal aid matters to everyone (it’s also why the right to a fair trial matters to everyone).
Stage 1 report on FOISA Amendment Bill

November 2nd, 2012

The Scottish Parliament’s Finance Committee has today, 2 November 2012, published its stage 1 report into the Freedom of Information (Amendment) (Scotland) Bill. The Bill aims to amend aspects of the Freedom of Information (Scotland) Act 2002 (FOISA).

One of the amendments to the Bill has drawn particular criticism from a wide range of people and organisations, including the Scottish Information Commissioner. The amendment at Section 1 of the Bill would remove the public interest from the “Royal Exemption” (Section 41) in FOISA. Currently information is exempt if it relates to (a) communications with Her Majesty, with other members of the Royal Family or with the Royal Household; or (b) the exercise by Her Majesty of Her prerogative of honour. The exemption is currently subject to the public interest test; requiring public authorities to balance the arguments for and against disclosure to arrive at a decision on whether not the public interest in not releasing the information outweighs the public interest in releasing the information.

The amendment at Section 1 of the Bill would remove the public interest test in relation to s.41 where the information relates to communications with (a) Her Majesty, (b) the person second in line to the throne, (c) a person who has acceded to the throne and become second in line to the throne. Currently, it would mean that correspondence with the Queen and Prince Charles would be exempt under FOISA; even when the public interest would be in the information being released.

This is important, readers will probably be aware of the recent Upper Tribunal decision under the UK Freedom of Information Act which found that it was in the public interest to release certain correspondence between Prince Charles and seven Government departments. The decision of the Upper Tribunal was vetoed by the Attorney General. The UK Freedom of Information Act now has the same exemption as is being proposed in Scotland. The UK amended exemption escaped proper scrutiny as it was added into a Bill late on in the parliamentary process.

The Scottish Government argues that the exemption is needed to bring Scotland into line with the rest of the UK (a rather odd argument for a Government who wants to separate Scotland from the rest of the UK). However, the Finance Committee were not overly convinced by this argument. It seems that arguments founded on the public interest fared better with the Committee. It was argued by many, including Rosemary Agnew, that removing the public interest test was, by definition, against the public interest; a very sensible comment to make. We know from the Upper Tribunal that Prince Charles likes to lobby Government on matters and that an independent tribunal looking at the correspondence found that it went far beyond “his preparation for the throne”. Arguing for a removal of the public interest test with that as a background doesn’t help your arguments very much.

On other areas of the Bill the Committee was more supportive of the Government position. The proposed extension of the Section 18 “neither confirm or deny” exemption to cover personal information is an uncontroversial one. There are very good reasons as to why public authorities would not want to reveal that they hold personal information about an individual. However, it should not become the standard response when a person asks for their personal information, wrongly, under FOISA. Section 18 should be used rarely and only when absolutely necessary. The fact that Section 18 comes with its own public interest test should mean that it is only used when necessary.

The proposed amendment to the “information otherwise available” exemption is uncontroversial as well and simply clarifies the current exemption.

The Bill doesn’t deal with the extension of FOISA to bodies not already covered. However, a number of people provided written submissions and other evidence to the Committee on this point anyway. It is an important point. The way in which public money is spent and public services re delivered has changed drastically since 2002 (when FOISA was passed by the Scottish Parliament). While there have been some amendments to the list of Scottish Public Authorities (primarily through primary legislation which has created, closed or merged public bodies) the Scottish ministers have never used their powers to designate new public authorities. As more and more is being spent and delivered by Arms Length External Organisations (ALEOs) it is important that these ALEOs are subjected to FOISA. We also have a great number of private enterprises performing public services and these organisations fall outside of FOISA. Information access rights have been damaged and reduced over the years and the Government has made no real attempt to ensure that the position is restored to what it was in 2002 and 2005.

The Scottish Government has, thus far, refused to use this Bill as an opportunity to at least restore information access rights to their 2005 level and has also refused to use the Bill to extend rights to other organisations. In my written evidence to the Committee I suggested that organisations such as the Law Society of Scotland and the Faculty of Advocates (insofar as information is not held for the purposes of representing their members) and COSLA should be covered by FOISA. The Committee has invited the Government to bring before it a timetable for extending information access rights in FOISA to other organisations and details of any amendments to the power to designate. The Committee has said that it will reconsider its position on this issue when the Bill comes back at Stage 2.

Information access rights are important and vital to the Scottish people. It is important that this Bill makes the rights work better for people. On the whole I do support this Bill but do think that it could go much further and is a bit of a wasted opportunity. I hope that the Scottish Government rethink their position on Section 1 of the Bill and decide to either tighten it up considerably or, better still, remove it entirely from the Bill.
A waste of money? The Scottish Government’s EU advice FOI appeal

October 30th, 2012

The independence referendum coverage has been polarised on one issue lately: the position of an independent Scotland in the European Union. This issue really came to the forefront of the political discourse following the Deputy First Minister’s statement last week which confirmed that the Scottish Government had not yet commissioned detailed advice on this question. This came in the context of a Freedom of Information request made by Catherine Stihler MEP of the Labour Party.

The debate that has ensued following the Deputy First Minister’s revelations and ignores the finer details of the Freedom of Information request and FOI law. Ms Stihler had sought from the Scottish Ministers the legal advice they had received on the position of an independent Scotland in the European Union. The Scottish Ministers had refused to confirm or deny the existence of the information pursuant to Section 18 of the Freedom of Information (Scotland) Act 2002 (FOISA). To cut a very long story short Ms Stihler eventually appealed to the Scottish Information Commissioner who found that that the Ministers were not entitled to rely on Section 18 of the FOISA. The Scottish Ministers initially appealed this decision to the Court of Session, but later dropped that appeal.

When it was revealed that the Ministers had not sought advice there were instant accusations of the Scottish Ministers wasting taxpayers’ money. Those accusations related to the fact that the Scottish Ministers had went to court to protect advice that didn’t even exist. This entirely ignores the purpose of Section 18 of the FOISA.

While it was frustrating that the Scottish Ministers decided to appeal the decision and while I personally considered the Commissioner’s reasoning in her decision to be correct and flawless, it was the right of the Scottish Ministers to appeal the decision. The fact that the information did not exist is irrelevant. That comes from the wording and purpose of Section 18 of FOISA.

Section 18 of FOISA provides:

(1)Where, if information existed and was held by a Scottish public authority, the authority could give a refusal notice under section 16(1) on the basis that the information was exempt information by virtue of any of sections 28 to 35, 39(1) or 41 but the authority considers that to reveal whether the information exists or is so held would be contrary to the public interest, it may (whether or not the information does exist and is held by it) give the applicant a refusal notice by virtue of this section.

(2)Neither paragraph (a) of subsection (1) of section 16 nor subsection (2) of that section applies as respects a refusal notice given by virtue of this section.

What does this mean? Well, put simply it means that where a public authority believes that to reveal whether particular information is held (or not held) is contrary to the public interest it can issue a refusal notice under Section 18. The public authority is not required to comply with the ordinary requirements of FOISA to confirm whether the information is held (and either release it or issue a refusal notice under Section 16 of FOISA) or whether it is not held (and issue a refusal notice under Section 17 of FOISA). For section 18 to apply the public authority must be satisfied that if the information did exist that it would be exempt under certain exemptions of FOISA.

Section 18 has successfully been deployed, for example, where a police force was asked for information about a particular investigation. It was found to be contrary to the public interest to reveal whether the information was held or not. It was also successfully deployed by the Scottish Ministers in relation to an information request relating to the honours process.

There is very little in the way of case law from the courts in relation to the FOISA. More than 1,500 decisions have been issued by the Office of the Scottish Information Commissioner since FOISA entered into force in 2005, but there are only about half a dozen reported appeals to the courts. None of these have been in relation to Section 18. In terms of the operation of FOISA it would have been particularly helpful to have had a considered judgment from the Court of Session (perhaps even the United Kingdom Supreme Court if it had gone that far) on the application of Section 18, especially given the nature of Section 18. Undoubtedly the Scottish Ministers would have raised the Ministerial Code issue and it would have been very helpful to have had judicial consideration of the relationship between the Ministerial Code and FOISA.

On the issue of legal advice and FOISA, it is generally accepted that there is a strong public interest in public authorities being able to obtain legal advice and for that advice to remain protected. The public interest in its release has to be particularly strong before it will be released. There are few examples of the Scottish Information Commissioner or the UK Information Commissioner ordering the release of legal advice. Where the public interest rested in respect of legal advice must, as with all FOI requests, be judged on a case-by-case basis as request are received. Advice that has previously been protected under FOISA might later be released as a result of a subsequent request for information if the public interest balance shifts.

Section 18 is an important exemption; sometimes to reveal whether information exists or not is simply not in the public interest. There has to be an exemption for that situation when it arises (although it should arise rarely). Public authorities must be free to appeal a commissioner’s decision regardless of whether the information exists or not. I am actually disappointed that this case never actually made it to court because we are lacking vital judicial guidance on both the application of Section 18 of FOISA and on the relationship between FOISA and the Ministerial Code. By all means attack the SNP for appearing to make assertions which were not based on any legal advice, but don’t attack them for exercising their statutory right to appeal a decision of the Commissioner to the Court of Session. That does not help the cause of FOI one bit.
We can now deny that

October 23rd, 2012

I have written often on here about a Freedom of Information request made to the Scottish Ministers by Labour MEP Catherine Stihler. You can read the history of this request here, here, here and here.

Today, Deputy First Minister Nicola Sturgeon MSP made the embarrassing confession that there was no legal advice on the position of an independent Scotland in the European Union. The Ministers were ordered by Rosemary Agnew, the Scottish Information Commissioner, to reveal whether they held such advice and until today the Ministers refused to comply with that order. They had lodged an appeal in the Court of Session which was due to be heard on 18 and 19 December 2012.

Taking a case to the Court of Session is not cheap; it’s really rather expensive. The Ministers have wasted Government money and indeed money from the Office of the Scottish Information Commissioner by pursuing an appeal that aimed to keep secret that they had, until now, been lying to the Scottish people. The very clear implication of the statements made to Parliament prior to today was that the Government had received advice and it was from that advice they were making their assertions.

The Scottish Ministers have said that the white paper will be informed by the advice they have received, but given that we know they’ve given an impression they had advice when they did not, can we really trust what this Government is saying on this vitally important issue? Is the position of the Scottish Government simply going to be on what Alex Salmond has decided is the case rather than on any concrete evidence? Of course, we’re unlikely to see any legal advice the Government ever actually receives because of Legal Professional Privilege so we have to go on trust and today the SNP will have, undoubtedly, lost some of the trust that the Scottish people had in them.

I still await a decision from the Commissioner on my request to the Ministers on whether they received advice over the competence of the Scottish Parliament. A somewhat moot point now that a Section 30 order is to be made. However, it does remain an important one in light of recent events.

Scottish Information Commissioner’s Decision 111/2012 – Catherine Stihler MEP and the Scottish Ministers
Judges unite in support for retaining corroboration

October 17th, 2012

Yesterday the Senators of the College of Justice, excluding Lord Carloway, published their response to the Government’s consultation paper arising out of Lord Carloway’s report into reforming Scottish criminal law and practice.

Lord Carloway was asked by Justice Secretary Kenny McAskill MSP to investigate and report the ways in which Scottish criminal procedure could be reformed. This followed the UK Supreme Court’s controversial decision in the case of Cadder V HM Advocate. That case, as I’m sure readers will know, held that the Scottish practice of detaining suspects without access to a lawyer breached their article 6(1) right to a fair trial. As a result emergency legislation was introduced to the Scottish Parliament which provided for the right of suspects to receive advice and representation from a solicitor while in police custody. Lord Carloway’s report considered some of the issues that had arisen as a result of that legislation; issues which had not been properly considered because of the speed at which the Government pushed the amendment through Parliament.

The most controversial aspect of Lord Carloway’s report was his recommendation that the ancient requirement for corroboration be abolished. Since the publication of the Carloway Review; the Justice Secretary has made his position clear on the matter (that he supports Lord Carloway’s recommendation) and both the Lord Advocate and Solicitor General have gone into a political drive in support of its abolition.

Much concern about the proposal of Lord Carloway has been noted since the publication of his report. Many in the legal profession have come out in support of keeping corroboration and referring to it as an essential safeguard. Some have suggested the desire of the Government and the Crown to abolish corroboration is about trying to making it easier for the Crown to obtain a conviction. Others have suggested that the abolition of corroboration wouldn’t be a bad thing, but that other changes would be necessary to ensure that the right of the accused to a fair trial was not placed in jeapordy.

For what it is worth I am of the opinion that corroboration is absolutely essential to the criminal law in Scotland and that any attempt to abolish it would likely have severe consequences for the accused. I am also of the opinion that the move to abolish corroboration may, in part, be supported by the government with a view to increasing the number of convictions the Crown can obtain. That, in my view, would (if indeed it is part of the motivation) make it a very bad idea because it distorts justice (see this earlier post from me on Justice published on this blog).

The consultation response from the Senators of the College of Justice provides a glimmer of hope for the continued existence of corroboration in Scotland. All of Lord Carloway’s colleagues have united in support for corroboration leaving him on his own among the senior judiciary in Scotland. The weight and authority of the Senators should also cause the Justice Secretary to reconsider his position on the future of corroboration. When almost all of Scotland’s senior judiciary (who are responsible for upholding the law) you certainly be foolish to ignore them.

In the judge’s response to the consultation they state:

In our view, it is often difficult to assess the true facts on the basis only of the evidence of one witness. A witness may be credible and plausible, yet not be telling the truth (or the whole truth). The Scottish courts have on many occasions been grateful for the requirement of corroboration, which in our view provides a major safeguard against miscarriages of justice.

There is little to say about this submission from the judges. It will always be the case that a case will be stronger the more there is to verify the evidence. The judges make a good point that simply relying on one witness is not particularly helpful. As they state a witness can appear as though they are a reliable witness, but the truth of the matter is that their version of events are not an accurate reflection of what happened. They state that corroboration acts as a major safeguard against miscarriages of justice. This is something that I would agree with entirely.

We are also concerned that the abolition of corroboration may result in less diligent police investigation pre-trial: knowing that corroboration is not required, there may be a relaxation in the search for supporting evidence (even though such may well exist).

This is an interesting point and is certainly one that is echoed by the few police officers I have spoken to. They state that it wouldn’t necessarily be about being lazy, but it would be a sensible way to use resources (particularly at a time when resources are under pressure). Of course, in the most serious or complex investigations there is unlikely to be much change. The very nature of such investigations is that corroborative evidence would still likely exist. The danger exists in the less complex and serious investigations. While they might be less complex or serious in terms of the gravity; a criminal investigation is sufficiently serious to ensure that a thorough and effective job is done. The effect on the life of a person who is convicted of a criminal offence can be significant: they may lose their job, seeking employment becomes more difficult, there may be financial hardship and the stress of an investigation and trial can cause marital and family problems. We cannot allow a situation to develop where it is more likely that innocent people will suffer the effects of a wrongful conviction. That is, in my view, a much greater injustice than a guilty person escaping conviction.

The judges also raise interesting points on the issue of increasing convictions. Their view is that rather than increasing the number of convictions it might well cause a reduction in the number of convictions obtained by the Crown. They cite a possible reluctance on the part of a jury to convict where it is a situation of one person’s word against the word of another. The senior judiciary have a wealth of experience from which they can draw such conclusions and I wouldn’t want to disagree with them on that point. It does, with a bit of consideration, seem like a conclusion that can be sensibly arrived at.

The judges broadly support Lord Carloway’s other recommendations, which are less controversial and do make sense in light of the line of authority developing as a result of Cadder. Their response can be read here.
Release of Prince Charles letters blocked by Attorney General

October 16th, 2012

The Attorney General, The Rt. Hon. Dominic Greive QC MP, has today signed a certificate under Section 53 of the Freedom of Information Act 2000 which overturns the decision of the Upper Tribunal (Administrative Appeals Chamber) in Evans v The Information Commissioner and Seven Government Departments ([2012] UKUT 313).

Section 53

Section 53 has become known as the “ministerial veto” and has been used by the current Government the most since the Freedom of Information Act 2000 (FOIA) came into force. The veto gives an “accountable person” the right to issue a certificate in relation to any decision of the Information Commissioner, the tribunals or courts regarding an information request made pursuant to the Freedom of Information Act 2000 which has the effect of overturning the decision of the Commissioner, tribunal or court.

In essence it places a public authority given powers to make us of s.53 as the final arbiter in a dispute over whether they were correct to withhold information requested under the FOIA. It was a key condition placed on the legislation by Jack Straw, the Secretary of State for Justice when the FOIA went through Parliament. The Commissioner, Tribunals and Courts are there to act as independent arbiters who can look at the case with “fresh eyes” and perhaps more objectively than the public authority or applicant can. However, at the end of the day the Government remains the ultimate controller of what information it holds it releases.

The Evans requests

The requests in question were made by Rob Evans, a journalist at the Guardian newspaper, in 2005. They sought the content of correspondence between HRH Prince Charles, the Prince of Wales, and the Ministers of seven departments of central government. Those departments were: Department for Business, Innovation and Skills; Department of Health; Department for Children, Schools and Families (now the Department for Education); Department for Environment, Food and Rural Affairs; Department for Culture, Media and Sport; Northern Ireland Office and the Cabinet Office.

There exists, by way of constitutional convention, a right for the heir to the throne to be educated in Government business in order to prepare him (or her) for becoming King (or Queen). The convention also provides that such correspondence is confidential and its existence or content should not be disclosed.

Upper Tribunal Decision

The Information Commissioner and First-Tier Tribunal sided with the Government and held that the public interest in maintaining the exemption (ss.37, 40, 41 of the FOIA and Regulations 12(5)(f) and 13 of the Environmental Information Regulations 2004). However, the Upper Tribunal disagreed and in a 65-page judgment outlined the reasons why it decided that most of the withheld information should be released.

It could be argued that there is no public interest in the constitutional convention which provides a right for the heir to the throne to be educated in Government business and for those pieces of correspondence to be confidential. That argument is a simple one of democracy given that the Monarch is unelected and in a democracy unelected officials should really not be in a position to influence the way in which a democratically elected Government conducts its business. This is an argument that I am minded to agree with, but I won’t set out my reasons in full for this here as it really does stray beyond the aim of this post. However, I shall return to the influencing Government point later.

The Upper Tribunal has accepted the constitutional convention and applied it in this case. Some of the information withheld properly, it decided, fell within the scope of that constitutional convention. However, much of the correspondence that was withheld was not, in the Upper Tribunal’s mind, covered by the convention. That correspondence was lobbying by HRH The Prince of Wales, sometimes on behalf of others. It was nothing more than correspondence trying to persuade the Government to take a different course. The Government receives many such letters each year from a wide variety of people. All those letters would more than likley be capable of being obtained by way of in FOIA information request. The difference in this case was that the lobbying was coming from the Royal Family and potentially has the influence behind it to cause a change of Government policy. We might never really know whether the Government changed its policy on things as a result of correspondence received from HRH The Prince of Wales.

Constitutional conventions are not, the Upper Tribunal rightly pointed out, law. They do not have the same position as a written constitution (such as in the United States of America) and have nowhere near the same effect. They are essentially, in a lot of cases, nothing more than Parliamentary and Governmental etiquette. The Upper Tribunal points to the convention that says a Prime Minister must resign from office if, after a general election, he (or she) ceases to lead a party with the majority of seats. This is a good example of a convention to look at (and indeed we can look only to a few years ago to see it in operation). Following the 2010 General Election the Labour Party no longer had the majority of seats in the House of Commons. No party did, by the largest party was the Conservative Party. While they did not have a majority they arguably had a mandate to govern the United Kingdom (certainly more of a mandate than the other parties did). However, Gordon Brown remained Prime Minister for several days following the General Election. Even once the Conservatives and Liberal Democrats had agreed to enter a Coalition there was nothing, in law, requiring Gordon Brown to resign as Prime Minister. It is simply etiquette that when a Prime Minister looses an election he resigns (essential in a democracy, but not legally required in the United Kingdom).

The Upper Tribunal was placed in a rather unusual position in this case. It was being asked to consider the extent of a particular convention rather than a purely legal question. The Upper Tribunal looked at the convention and reached a decision which, from its judgment (and common sense), appears to be a sensible one which gives effect to the convention protecting correspondence educating the heir to the throne in matters of Government policy. Discussion of this particular convention can be found in paragraphs 89-112 of the Upper Tribunal’s judgment.

The judgment of the Upper Tribunal is lengthy and I don’t want to spend too much time on going through it. However, the key to understanding the Upper Tribunal’s decision is quite simple, in my view, it rests on the content of the correspondence. We know from the Tribunal’s decision that HRH The Prince of Wales has been writing to the Government to lobby them on a wide range of issues. This is not new news to us and has been covered elsewhere, such as in a Biography of HRH by David Dimbleby. There is, I would submit, a strong public interest in the extent of Prince Charles’ lobbying of the Government. Someone who is unelected and has as much power and influence as the Royal Family do, particularly senior Royals, must be subject to a level of scrutiny and the public interest in that is greater by the mere fact that they are not elected (in my view).

I won’t say anymore on the Upper Tribunal’s judgment. I have linked to it at the bottom of this blog post and will now move onto the Attorney General’s s.53 certificate.

The veto of the Upper Tribunal’s decision

The decision to veto the Upper Tribunal’s decision that a large quantity of the withheld information ought to be released is a serious blow to democracy in the United Kingdom. The Attorney General’s reasons for vetoing the release of the information read more like reasons for releasing the information than not.

The Attorney General makes reference to these being “The Prince of Wales’ most deeply held personal views or beliefs”. The Monarch is, by constitutional convention, supposed to be politically neutral. Releasing the information cannot harm the Prince of Wales’ political neutrality because that was harmed the moment his views were communicated to the Government through his correspondence. If the Prince of Wales is willing to set out his views prior to taking to becoming King then it is not unreasonable to consider that he might be willing to use his influence as Monarch (when he becomes the Monarch) in expressing his views in the future.

This decision from the Attorney General is clearly wrong and undemocratic. It strikes at the very heart of what the Freedom of Information Act aims to do. It is open for Mr Evans to seek a Judicial Review of the Attorney General’s decision to use Section 53 of the FOIA. I hope that he will do so, supported by the Guardian Newspaper. To date the use of the veto by the Government has gone unchallenged and it risks the democratic process if the Government are not properly held to account over doing so.

Links
Evans v the Information Commissioner and Seven Government Departments [pdf]
Statement of Reasons for use of veto by the Attorney General [pdf]
Criticism for government veto over release of Prince Charles’ lobbying correspondence
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August 28th, 2012

It seems that after more than 7 years of being law, some public authorities still fail to fully understand their obligations under the Freedom of Information Act 2000 (FOIA). The Act, which came into force in January 2005, provides access to information held by a large number of public authorities.

Liverpool Community College appears to fail to understand its obligations under the Act. This is a conclusion that can be arrived at after seeing some responses to requests made through the “What Do They Know” (WDTK) website. The college’s dedicated page on the WDTK website shows a clear and consistent failure to comply with the FOIA.

Each request submitted through the website has not been responded to by the college other than to point them towards the College’s website on FOI or to state that a form must be completed and sent to the college. The college’s website also suggests that the only way in which a request for information can be made to the College is to send a form to the College. This is in clear breach of the FOIA.

The FOIA only sets three requirements for a FOI request to be valid. Those requirements are set out in Section 8 of the FOIA, which reads:

(1)In this Act any reference to a “request for information” is a reference to such a request which—

(a)is in writing,

(b)states the name of the applicant and an address for correspondence, and

(c)describes the information requested.

(2)For the purposes of subsection (1)(a), a request is to be treated as made in writing where the text of the request—

(a)is transmitted by electronic means,

(b)is received in legible form, and

(c)is capable of being used for subsequent reference.

As can be seen the Act is quite clear; a request can be transmitted by electronic means. The WDTK website works by sending an E-mail to the authority from a randomly generated address which is linked directly to the request thread created by the user. It is, in short, a request being made by E-mail.

Once a public authority has received a valid request for information their obligation to respond in accordance with the Act begins. They might have a preference as to how requests are received, but if a request is made in accordance with the requirements in Section 8 of the FOIA then the authority is obliged to respond to the request.

The Information Commissioner’s Office summarised their position on both WDTK and E-mail as methods of making a request for information pursuant to the FOIA in this letter to Rother District Council.

Hopefully someone will draw the College’s attention to the fact that they are not acting in compliance with the FOIA. It is hard to believe that after 7 years of operation some public authorities still do not understand the most basic elements of the FOIA. It is essential that the college is able to identify a valid FOIA request. Requests could be found within correspondence sent to the college in pursuance of other matters (e.g. a complaint) and a failure to identify a request or to deal with a request obviously labelled as one that has not come in on the College’s request form is a blatant technical failure. There is certainly a training need at the College around the FOIA and hopefully that will be addressed once the College is aware of its mistakes.
Council appeals taxi recording Enforcement Notice

August 17th, 2012

In July the Information Commissioner’s Office (ICO) served an Enforcement Notice against Southampton City Council over its requirement that all licensed taxi cars must record both audio and visual from within its vehicles on all journeys. The Enforcement Notice was issued by the ICO using powers conferred on the Information Commissioner under the Data Protection Act 1998.

The City Council’s policy requires that all taxis and private hire vehicles which it licenses are fitted with audio and visual recording equipment and that this is recording at all times regardless of the purpose for which the vehicle is being used. For example, a private hire taxi driver will likely use the car to transport their family or friends in the way that most people will use their vehicles (e.g. taking their children to school or extra-curricular activities, going to visit family, going for family day trips etc.) Even in such situations the Council’s policy mandates that the vehicle is recording visual images and audio. The private telephone conversations of the driver and his passengers will be recorded as will private conversations between passengers and conversations between the driver and his family. All the recordings will be stored by the Council.

Such a policy is, to any reasonable person, an extreme interference with a person’s right to a private and family life. It affords no private space to the driver or their passengers. The driver is unable to switch the equipment off when using the vehicle for personal use or to afford passengers privacy when making or receiving private telephone calls.

The Information Commissioner’s decision that Southampton City Council should stop the practice seemed to be a sensible one. Certainly in my view the compulsory recording of both visual images and audio in vehicles regardless of the type of journey being made is a step too far. It is with regret that the City Council has decided to appeal the decision to the First-Tier Tribunal (Information Rights).

The Council contends that it takes steps to protect privacy by ensuring that the data is encrypted and assuring everyone that the recordings are only looked at when a complaint is made to the City Council or the police. In support of its policy the City Council cited a number of allegations of sexual assault made against a licensed driver in a licensed vehicle where the allegations could not be taken forward due to a lack of evidence. The City Council intends to use this evidence as well as other examples where the cameras were in use in support of its appeal.

There is no doubt that the constant video and audio recording of the inside of taxis and private hire vehicles will produced evidence that can cast light on allegations of criminality and also complaints against drivers. That, it would appear, is not in dispute. It seems to me that the City Council are entirely missing the point. The processing of data (which includes the actual recording and not just the storing and/or watching) must be fair. While the existence of the recordings could be useful in the investigation of a complaint or an alleged criminal offence one must consider the fairness to record even the private journeys of drivers while they are not on duty. That at least should be considered as an unfair processing of personal data even if you accept the invasion of privacy involved in recording all journeys made while a driver is on duty.

There are some arguments in favour of requiring all journeys regardless of purpose to be recorded. For example, it would ensure that drivers cannot “forget” to turn the equipment on when they begin driving officially and it ensures that drivers cannot switch the equipment off or delete recordings in order to evade prosecution for an offence. However, these considerations do not appear to me to be sufficient justification for a blanket policy such as the one instigated by the Council.

The City Council is entitled to appeal the enforcement notice, but I hope that they see sense and abandon the appeal. In the event that the City Council decide to continue with the appeal I hope that the Tribunal will reject it and uphold the Commissioner’s enforcement notice. The City Council really has gone too far with this policy.

Links
Enforcement Notice (pdf)
Council takes ICO to Information Rights Tribunal over cameras in taxis (Local Government Lawyer)
Validity of Information requests: Copies of documents or Information

August 14th, 2012

The Freedom of Information (Scotland) Act 2002 (FOISA) provides a right of access to recorded information held by public authorities. Section 1(1) of FOISA says:

A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.

There are exceptions to this general entitlement, found within Part 2 of the Act, but they are not relevant for the purposes of this article.

The general entitlement is the right to information rather than copies of documents, letters etc. What this means is that under FOISA anyone is entitled to be provided the information contained within documents, letters, E-mails, notes etc. unless the information contained within the document is exempt. Where some information is exempt and some is not then the public authority must provide the information that is not exempt if it falls within the scope of a request.

This issue has been considered by the Court of Session in Glasgow City Council and Dundee City Council v The Scottish Information Commissioner 2010 S.C. 125. In essence, insofar as this article is concerned, found that the right that FOISA provides is one to the information contained in the documents rather than the actual documents.

Following the Glasgow City Council case in the Court of Session the then Commissioner, Kevin Dunion, issued guidance to public authorities on information requests and the effect of the Court of Session’s judgment. At paragraph 3.4 of that guidance it states:

Therefore, where an applicant has asked for a copy of a document and it is reasonably clear in the circumstances that it is the information recorded in the document which the applicant wants, the public authority should respond to the request as a request properly made under FOISA. A reference to a specific document is a commonplace way of describing the information sought and can be of assistance to an authority in identifying and locating the information. Such a reference can also benefit the authority by limiting the scope of the information request, e.g. to that contained in a minute of a certain date.

This seems a somewhat reasonable piece of guidance to be issued to public authorities. It would be the common sense conclusion of a public authority when faced with a request for a specific document or set of documents to assume that the requestor wants the information to be found with that document or set of documents. Why else would they be asking for the document if they were not interested in its contents?

As a public authority is not obliged to provide copies of documents and only the information to be found within the document it is not necessary for a public authority to send a copy of the document in question to the applicant. They could summarise its contents or they could copy and paste the content of the document into an E-mail or indeed into another document. When the request is for the entire content of a document then it is often easier for the public authority just to provide a copy of the document in question (and often this is often the basis upon which a response is issued). Where only part of the document falls into the scope of the request then, sensibly, public authorities will usually provide an extract of the document.

There are problems with simply providing summaries of whole documents, or indeed summaries of only parts of documents, rather than the actual content. Applicants are entitled to a complete and accurate version of the information (paragraph 4.1 of the Commissioner’s Guidance). When public authorities start to issue only summaries of documents they run the risk of failing to provide all the information that falls within the request for information. This was demonstrated recently in Mr Tom Taylor and the Chief Constable of Strathclyde Police. In this case Mr Taylor had asked the Chief Constable of Strathclyde Police (“Strathclyde Police”) for copies of certain pieces of correspondence. Strathclyde Police relied on the Glasgow City Council case and supplied only a summary. “This comprised a table specifying the correspondence type, its subject matter, date and the sender and recipient.” (Decision 131-2012, paragraph 3)

The Commissioner found this summary to be inadequate. The decision notice states at paragraph 63:

In his application, Mr Taylor commented that, although the information disclosed in response to request 1 was described as being a summary, he had not in fact been provided with a summary of the information.

The decision notice continued at paragraphs 67 and 70:

In this case, Mr Taylor’s request was very clearly specified, indicating the subject of and the parties to the correspondence of interest to him, along with a period of approximately six months. Given that Strathclyde Police were able to provide a list of relevant correspondence, it is clear that they were able to locate that information. The Commissioner therefore considers that Mr Taylor made a valid request for information for the purposes of FOISA, effectively seeking all information within the correspondence he specified.

…..

By seeking copies of the documents, Mr Taylor made it clear that he wished to receive the information in full rather than a summary or digest. Strathclyde Police’s response neither provided the information requested, nor gave any proper notice to indicate why the information had been withheld.

As a result the Commissioner found that Strathclyde Police had failed to fully comply with Part 1 of FOISA by failing to provide Mr Taylor all of the information that fell within the scope of his request. In this instance it would have been far easier for Strathclyde Police to provide redacted copies of the correspondence while, in accordance with their duty to provide advice and assistance, to refer Mr Taylor to the Glasgow City Council case and advise him that he is entitled to the information contained in documents rather than copies of the documents

The Commissioner has been critical of the way in which Strathclyde Police have handled this request for information. I have been aware of instances where Strathclyde Police have been what can be described as rather pedantic about the way in which it interprets requests and ignores the Commissioner’s guidance. Although, my own personal experience of requesting information from Strathclyde Police is that they have been helpful and I’ve rarely had any real complaint with their responses.

Rosemary Agnew, as the new Information Commissioner, has signalled her agreement with the position adopted by the previous Commissioner when it comes to handling requests for information where the request seeks copies of documents. However, there are a number of ways in which you can avoid receiving responses from public authorities which are nothing other than pedantic.

Mentioning specific documents in requests is a great help to public authorities as it restricts the amount of searching that has to be done in order to locate the information you are seeking. This reduces the chances of getting a refusal based upon the cost of complying with the request and certainly complies with the requirement at Section 8 to describe the information you are seeking. However, rather than asking for copies of documents the Commissioner suggests that you ask for the information contained in a document. For example, a request for “copies of correspondence between X and Y” becomes a request for “the information contained in correspondence between X and Y”. Personally, when I make information requests I will usually ask for the “content” of documents or correspondence.

This decision notice provide valuable guidance for applicants and public authorities. It also serves as a warning to public authorities who might consider responding to requests for information by providing summaries or digests of the information contained within documents.

Links

Freedom of Information (Scotland) Act 2002
Glasgow City Council and Dundee City Council v The Scottish Information Commissioner
Commissioner’s Guidance following Glasgow City Council case
Decision 131/2012 Mr Tom Taylor and the Chief Constable of Strathclyde Police