Alistair Sloan, Advocate

Menacing Character: the “Twitter Joke Trial”

July 27th, 2012

By now most people will be aware of the “Twitter Joke Trial” which involved the conviction of Paul Chambers (@pauljchambers) for sending a message of a menacing character via a public electronic communications network contrary to s.127(1)(a) of the Communications Act 2003. If you’re not aware of the facts they are set out succinctly in paragraphs 5 – 19 of the High Court’s judgement (link below).

This morning, at the Royal Courts of Justice in London, the Lord Chief Justice of England and Wales delivered the judgment of the Court in an appeal against conviction by Paul Chambers. This was the third time that Paul Chambers had sat waiting for an appeal judgment. The first appeal to the Crown Court was rejected and the second appeal, to the High Court, had to be reheard after the two judges failed to agree.

There has been a lot of comment and discussion on this case. Some of those who supported the conviction argued that it was necessary in light of the threat of terrorism that such “jokes” are taken seriously by the justice system so as to ensure public safety. Those who did not support the conviction were concerned about; inter alia, the affect on freedom of speech.

John Copper QC, leading Counsel for Paul Chambers, put forth a very convincing legal argument on the meaning of the word “menacing”. To do so they looked to another area of English law, Blackmail, which included reference to “menace”. Robert Smith QC, for the Director of Public Prosecutions, “submitted that no more, and no less, was needed than the application of ordinary language to the context in which any particular message was expressed and to all the relevant circumstances.” (Para 29) However, Mr Cooper argued “that for a message to be of a menacing character it must, on an objective assessment, contain a threat of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive.” (Para 29)

The High Court took the view that before being able to conclude that the message was of a criminal nature on the basis that it was of a menacing character, “its precise terms, and any inferences to be drawn from its precise terms, need to be examined in the context in and the means by which the message was sent” (para 31). Paul Chambers had sent his message at a time when the public was concerned about terrorism and the High Court recognised that the Crown Court was understandably concerned about this. However, the Court’s judgment states at paragraph 31:

In any event, the more one reflects on it, the clearer it becomes that this message did not represent a terrorist threat, or indeed any other form of threat.

The High Court pointed to the language and punctuation of Paul Chambers’ tweet as inconstant with the view that the writer had intended that the tweet to be or be taken as a serious warning.

The High Court also said (at para 32):

In our view, the Crown Court read too much into the observation of Lord Bingham in his judgment in the House of Lords that the criminality of the sender cannot depend upon whether a message is received by A or by A’s reaction. Lord Bingham was saying no more than that a message proved by an objective assessment, applying the standards of an open and multi-racial society to be of a prescribed kind, does not cease to be so just because it was not received or because the person who received it was not, in the context of the present prosecution, menaced. The effect of the message on those who read it is not excluded from the consideration.

The High Court looked at the way in which the airport discovered the tweet, the fact that it was treated as a “non-credible” threat by the airport authorities. They also considered the fact that the airport police took no action and that the speed of the process from discovery to Paul Chambers’ arrest was a sign of there being no real urgency. No evidence had been put before the Court that suggested even the most minimal upgrade to security following discovery of the tweet. The Crown Court, in considering the appeal, was wrong not to consider these factors as part of its decision.

The High Court also noted (para 33):

the fact that those responsible for security at the airport decided to report it at all, which was treated as a significant feature, rather overlooked that this represented compliance with their duties rather than their alarmed response to the message

In essence, the staff at the airport were doing what they were obliged to do in order to comply with company procedures. They had no real discretion as to whether the matter should have been taken any further and so to place such a heavy reliance upon their reporting of the matter to the police was incorrect.

The High Court found that the reliance upon Paul Chambers’ response to a question in interview as to how some people might have reacted to his tweet as misguided. The High Court said that this failed to recognise “the care needed to approach such a widely phrased question in context.” (para 33) Some people, the High Court said, “included those who might lack reasonable fortitude.” (para 33)

The High Court concluded “that, on an objective assessment, the decision of the Crown Court that this “tweet” constituted or included a message of a menacing character was not open to it. On this basis, the appeal against conviction must be allowed.” (para 34)

In short, when seeking to apply the menacing character element of s.127(1)(a) of the Communications Act 2003 it is necessary not simply to look to the dictionary definition of a menace, but to consider whether the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive by the message.

Comment

There is no denying that the tweet in question was not the most sensible thing to put out into the public domain. There was, and remains today, a public sensitivity around terrorism and security of the United Kingdom. However, I am sure we have all said things along the lines of “I’m going to kill x” or “I’m going to blow up y”. We have never really meant it and it will have normally been an expression of our frustration over a particular situation. The matter, when taken out of context can look a lot worse than it actually is. In this case, the context was important in understanding the meaning of the message.

The criminal law ought not to be covering situations unnecessarily and the approach taken by the court to this case previously was far too wide in nature. This was demonstrated, I thought, well by reference to Shakespeare’s “kill all the lawyers” line in Henry VI by John Cooper QC in his submissions to the Court on behalf of Paul Chambers.

This is a sensible decision that restricts the scope of s.127(1)(a) of the Communications Act 2003 to protect those who are making jokes or using colloquial language to express their frustration when using Twitter, Facebook and any other form of internet based social media that will come in the future.

The CPS has come in for a lot of criticism over their decision to prosecute Paul Chambers. For the most part, it’s probably unfair. They took a view that there was sufficient evidence for a reasonable prospect of conviction (based on a wrong interpretation of the law) and thought there was a public interest in prosecuting. One can understand why though given the terrorism threat in the UK. Misguided bomb hoaxes against an airport should be taken seriously by the police and prosecuting authorities. It was clear in this case though that this was not a bomb hoax and perhaps the CPS developed a blinkered view of the case and couldn’t get past thinking about terrorism.

Justice was, eventually, done though and the High Court has given a sensible decision that, one would think, the vast majority of right minded, sensible and level headed people would consider is correct.

Links
High Court’s Judgment in Chambers v DPP (pdf)
Chambers v DPP on BAILL I (web)
Communications Act 2003
Justice Committee’s FOIA conclusions – Part 1

July 26th, 2012

Today the Justice Committee produced their report on the Freedom of Information Act 2000 (FOIA). This concludes the Committee’s post-legislative scrutiny of the FOIA and follows many written submissions and oral hearings of evidence. I submitted my own written evidence.

The tone of the report was set from the very outset where the first words of the report declared Freedom of Information to have “been a significant enhancement of our democracy.” From the very outset it was clear that the committee was not going to be recommending anything that would substantially reduce, restrict or harm the rights afforded to everyone under the FOIA.

There were some clear battles between proponents of the FOIA and those who were seeking to undermine its provisions. Many from within Government were clearly wanting a return to the “good old days” of total secrecy and the ability to largely control what was released from the Government’s large archives of information. In almost all of those battles though the Committee rejected the arguments of those seeking to undermine the provisions of the Act and have produced a report that if implemented would further strengthen the Act.

One of the battles that has emerged is the effect that FOI is having on the workings of Government. High profile people argue that there has been a “chilling effect” where less is being written down about important decisions. Lord Gus O’Donnell (GO’D) and others would have you believe that inside of Whitehall civil servants are paralysed with fear to send an E-mail or write down notes when on the telephone in case that bit of paper is released under FOI. The committee were not convinced and stated so:

We are not able to conclude, with any certainty, that a chilling effect has resulted from the FOI Act

Given that uncertainty, the committee say, they would not be recommending any changes to the current system. The Committee points to the Commissioner’s decisions and Tribunal judgments which clearly recognise the safe space said to be needed for effective Government. They also point to the ministerial veto which can be used for when the Government thinks that the Commissioner/Tribunal got the public interest test wrong. To GO’D and the others concerned about the infringement upon the safe space the Committee recommends that people be reminded “that the Act already provides a safe space, and that the Government is prepared to use the ministerial veto to protect that space if necessary.” The key seems to be about education rather than amendment.

In evidence the Attorney General accepted that there would be occasions on where the public interest does not lie in maintaining the s.35 exemption. His comments came in relation to discussions about minutes made at meetings of the Cabinet. The AG is quite right on that point and it is why it is excellent that the Committee has not recommended making s.35 an absolute exemption or creating a class exemption for cabinet minutes. These things should be determined by what is in the public interest.

Another area of battle that has come about over FOI is the cost and burden to public authorities of FOI. A lot of public authorities who submitted evidence complained about how much time it took or how much it actually cost to deal with FOI requests. The Committee however pointed out in its report that when public authorities are looking at the cost of answering an FOI they are not looking at the wider benefits of FOI. The Committee in their report state:

FOI has costs, but it also creates savings which accrue from the disclosure of inappropriate use of public funds or, more importantly, fear of such disclosure.

It is important that when discussing the costs of FOI that we do not overlook the savings that are made or the potential for savings to be made as a result of the FOIA. After the MPs expenses scandal and other scandals involving wasteful spending of taxpayers’ money, public authorities are more aware that their spending decisions are more likely to be scrutinised and be scrutinised to a greater extent. No longer can public authorities publish meaningless budget figures which allow the public to see spending only at the highest possible level. It is now possible for people to investigate those costs further and drill down to see exactly how money is being spent and wasteful spending can be identified. This saves money for the public in the long-run and should force public authorities to think more carefully about spending decisions. As time goes on hopefully public authorities will look beyond the nice shiny immediate savings and consider how in three or four years time their spending might look in that area as a result of the decisions taken today.

Recently FOI has revealed some financial issues which are costing the UK taxpayer. The Telegraph reported that data from an FOI request showed that large numbers of EU students were coming to universities in the UK, taking advantage of loans and then either disappearing or going into arrears with the repayments. This is a cost to the taxpayer and FOI has made this information public which will hopefully result in action being taken to ensure that this money is recovered and perhaps a look at the system to ensure that EU students taking advantage of loans here in the UK repay them.

The Committee looked at a number of ways that flat fees could be introduced to FOI. They dismissed charging some and not others for simply making a request because of the applicant blindness requirement, but also because it would be easily circumvented and both difficult and expensive to police. They also stated that introducing “fees at a level high enough to recoup costs would deter requests with a strong public interest and would defeat the purposes of the Act.”

Some public authorities had made mention of frivolous requests, such as those about plans to deal with a Zombie attack. The committee was satisfied that this was a relatively small problem and that these “requests can usually be dealt with relatively easily, making it hard to justify a change in the law.” Of course, it has been pointed out that not all requests which public authorities deem frivolous are such. Local authorities have paid for exorcisms and the MoD has spent public money on collating information about UFO sightings. As for zombie attacks, well some people are genuinely afraid of such matters and if spending a few quid to send them a letter saying “we have no specific plans, but our civic contingency plans would cover it” reassures them then that’s just fine.

If the law were to be changed to include frivolous requests to be refused then defining such requests would be a nightmare and no doubt a lot more money would be spent on appeals to the Commissioner and Tribunal than it does to just answer the request in the first place. Vexatious requests are another matter and are provided for adequate in the current Act.

The Committee was seemed alert to the burden of FOI on authorities though in times of austerity and recommended a slight reduction in the appropriate limit of a couple of hours. It rejected though suggestions that including the time spent reading and considering the information for disclosure. Of that it said that these “activities are overly dependent on the individual FOI officer’s abilities, introducing an element of inconsistency into the process that undermines the fundamental objective of the Act, that everyone has an equal right to access information.”

That concludes the first part of this run through the Committee’s report and looks at some of the major battles that have been going on in the world of FOI. The next part of this run through will focus on the recommendations that the Committee has made which will strengthen the process and the Act.

Links
Justice Committee’s report (pdf)
Oral and Written evidence (pdf)
Additional (unprinted) evidence (pdf)
Private companies and FOI: The G4S failure

July 16th, 2012

The failure by G4S to meet its contractual obligations over providing security staff for the Olympics has brought into sharp focus its role in providing public services. G4S has a number of public sector contracts including running prisons and being responsible for prisoner transport in a number of areas. There has, in recent days, been a focus on to what extent these private companies are accountable to the public. To what degree can councils and other public bodies hold them to account? How well are they holding them to account?

As the public sector continues to face huge budget cuts and a continued need to save money huge public sector contracts are being offered out to tender and G4S are poised to take many of those contracts. In England and Wales the private sector is becoming more and more involved in the NHS following the passing of the Health and Social Care Act 2012. With these big companies having more and more responsibility for providing services which the public rely on and the State has traditionally provided, these questions of accountability are only going to become greater.

If we can learn one thing from the debacle over Olympic security and the failure of G4S is that proper scrutiny is required. Public bodies (and more importantly the public) should be able to better understand where and how public money is being spent.

There is an argument for these private companies to become directly accountable to the public. The public cannot elect the officers and executives of the companies in the way they elect Council’s and Governments. There must be some other way of holding public bodies to account.

It’s not all that popular, but making private companies accountable to the public through Freedom of Information would be an option. It’s not unheard of though. There are private companies to whom you can request information from that you might not expect. For example, anyone who provides certain NHS services under the relevant National Health Service legislation (currently the National Health Service (Scotland) Act 1978; National Health Service Act 2006 and National Health Service (Wales) Act 2006) is subject to FOI. This currently covers NHS pharmaceutical and Optometry services. In theory this means everyone from the independent pharmacist/optician to the big providers such as Boots and Tesco are covered by the Freedom of Information Act 2000 and Freedom of Information (Scotland) Act 2002. They are only covered in respect of their NHS pharmaceutical and optometry services. You couldn’t, for example, as Tesco what expenses their Chief Executive spent in June 2012 were under FOI (well you could, but as it’s not covered you’re unlikely to get a response).

There are other examples of organisations only being partially covered by the Freedom of Information legislation. The BBC and Channel 4 are two good examples. Both are covered, but not in respect of information held for the purposes of “journalism, art or literature”. Partial cover of an organisation isn’t a problem.

The problem with covering private bodies by FOI is a more technical problem. What would the appropriate limit be under the fee regulations? Would it be £450 or £600? Would it be something different? Would it depend upon who the contract was with? What about the application of fees? Would a private body like G4S be more likely to issue fee notes when the estimated costs exceeded £100? If they were, it might mean they are simply as unaccountable as they are now.

As the way in which public money is spent changes and as the delivery model of public services also changes it is necessary that the principles of accountability and scrutiny move with them. There is certainly a strong argument for bodies providing public services (especially large ones like G4S) to be covered by FOI. The question, in my view, is not a “should they” one, but rather a “how do we” one.
I’m sorry, we can’t confirm or deny that (Part 4)

July 13th, 2012

On Tuesday the Scottish Information Commissioner published her decision on an application by Catherine Stihler MEP pursuant to s.47(1) of FOISA. The background to this decision can be found here, here and here.

On 12 July 2012 the BBC were reporting that the Scottish Ministers intend to appeal Rosemary Agnew’s decision. It is a groundbreaking decision by Rosemary Agnew and forces the Ministers to reveal whether they have recieved legal advice on a specific point.

The BBC quote a Scottish Government spokesperson as saying:

It is the longstanding and usual practice of the Scottish government to neither confirm or deny the existence or the content of legal advice.

It is certainly their longstanding and usual practice to neither confirm or deny the existence or content of legal advice recieved by the Ministers. However, the Freedom of Information (Scotland) Act 2002 requires each request to be considered on its own merits. In effect, the Scottish Government are suggesting that the existence of legal advice recieved by the Ministers should be neither confirmed nor denied in all circumstances. Section 18 is clear in its terms and subsection (1) reads:

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.

The critical element of s.18(1) is that it must be contrary to the public interest to reveal whether the information exists or not. The public interest must be considered in every request and on occassion it might be found that it is not contrary to the public interest to reveal whether the Ministers have recieved legal advice on a specific matter.

The Commissioner took the view on this occassion that the public interest was in the Ministers confirming or denying whether they held information falling within the scope of the request. The Ministers cannot rely on the fact that they would normally rely on s.18 in these types of cases. They need to demonstrate to the Commissioner (and they failed this time) that the public interest lies in not revleaing whether the information is held or not by them.

Appeals to the Court of Session are permitted only on a point of law. That means the Ministers can only challenge the Commissioner’s decision on the grounds that she erred in her interetation and application of the law. The Ministers cannot set out to prove the Court of Session that the public interest lies in favour of neither confirming nor denying as that is an issue of fact. The Ministers would have to demonstrate that the Commisisoner’s understanding of the law was wrong and that resulted in her making the wrong decision.

Of course, the Ministers could simply be deploying a delaying tactic here. The Ministers have in the past appealed to the Court of Session and then later withdrawn the appeal before it was heard by the Court. In July 2011 the Ministers did not pursue an appeal that they had lodged over a decision by the then Commisisoner, Kevin Dunion. The Commissioner had ordered the release of information held by the Scottish Ministers regardig their plan for a local income tax. The decision that releated to had been issued in February 2011. More information on that particular case can be read here.

In essence, the Ministers appear to have an uphil struggle. The fact that it is their normal practice to deploy s.18 in these requests is unlikley to be accepted by the Court of Session because that runs contrary to both the letter and the spirit of FOISA. Every request must be considered on a case-by-case basis.

Less than three months into the job it appears as if Rosemary Agnew has a Court of Session case on her hands. Few decision notices are ever appealed. That is likley to be for a number of reasons. Firstly, appeals are on a point of law only. It is not possible simply to appeal because you disagree with the Commissioner’s decision on a factual basis. Secondly, it is almost impossible for a member of the public to appeal. It simply costs too much to go to the Court of Session and applicants are handicapped because they don’t get to see the information that the Commssioner’s office recieved during the investigation.

It doesn’t appear as though the Scottish Ministers have actually formally lodged documents with the Court of Session yet, but they do still have more than a month until the deadline to appeal.

This is certainly an interesting development and one to be watched closely.
I’m sorry, we can’t confirm or deny that (Part 3)

July 11th, 2012

The Scottish Information Commissioner has published her decision on an application under s.47(1) of FOISA by Catherine Stihler MEP. Rosemary Agnew, the Commissioner, decided that the Scottish Ministers were wrong to refuse to confirm or deny whether they held legal advice on the position an independent Scotland would be in with regards to EU Membership.

I have written about this request before and sought from the Ministers, under FOISA, the correspondence between the applicant and the Ministers on this request prior to it going to the Commissioner (i.e. the request and response as well as the request for review and the Minister’s response).

Section 18 of FOISA provides that a public authority can refuse to confirm or deny whether it holds information sought in an FOI request where the public authority is of the view that the public interest is best served by this level of secrecy. It has previously been successfully deployed, for example, by police forces to not confirm whether it holds information in relation to a particular incident that may or may not be a crime and the Scottish Ministers in relation to the honours process.

In this latest decision, the Commissioner agreed that two exemptions would apply to the information if it were held. The Commissioner was satisfied that s.29(1)(a) of FOISA applied and also that s.30(c) of FOISA applied. However, this is not the end of the story. Both of these exemptions are subject to the public interest and the Commissioner had to then consider where the public interest would lie in each of these cases. The Commissioner found that the Ministers could provide a refusal notice in terms of s.16 because the public interest would likely favour maintaining the exemptions.

Ordinarily that would be the end of the matter. However, s.18 adds a further public interest test into the equation. This is the public interest in refusing to confirm or deny whether the information is held by the Ministers. At paragraph 52 of her decision notice, the Commissioner states:

“In this case, whilst the Commissioner has concluded that, if the advice existed and was held by the Ministers, they would have been entitled to issue a refusal notice under section 16(1), the Commissioner considers that it is in the public interest to know the type of information that the Ministers were taking into account in developing policy in relation to such a significant issue as independence.”

At paragraph 53 the Commissioner continues by stating that:

“Ms Stihler’s request was made at an early stage in the Government’s development of its policy in relation to Scotland’s potential membership of the EU. Nonetheless, the Commissioner considers there is a strong public interest in allowing the public to understand the process by which this policy would be formulated.”

The decision notice concludes by finding that the Commissioner is “not satisfied in this case that it would be contrary to the public interest for the Ministers to reveal whether the legal advice requested by Ms Stihler exists or is held by them”

This decision notice is unlikely to result in the Minister’s advice on the matter actually being published. It is clear that the Commissioner is likely to consider it exempt from disclosure. However, what it does do is force the Ministers to confirm whether they have actually sought proper legal advice on the subject or whether they are, as some suggest, simply making it up as they go along.

This decision is vitally important because the Scottish Government had tried to put a cloak of secrecy around what information they had which has developed their policy position on Scotland’s membership of the EU. If it transpires that a Section 17 notice (information not held) is issued rather than a notice under s.16 (a refusal notice) it could be politically embarrassing for the SNP and call into question their credibility on the subject.

However, I find it highly unlikely that a s.17 notice will be issued. I do not think that the Ministers have been arguing their position without having any legal advice. Whether that advice actually supports their position or not is a matter that we are unlikely to ever know. Of course, this decision notice does not preclude the Commissioner from deciding in the future that the information should be disclosed. The Commissioner’s office will never have seen any advice that the Ministers hold because she was not being asked to decide on its disclosure her, only whether the Ministers were right to refuse to confirm or deny. Once Ms Stihler has received the response ordered by the Commissioner she could seek a further internal review of a refusal to disclose and ultimately apply to the Commissioner again under s.47(1). Once the Commissioner sees the actual information she might change her mind as to where the public interest actually lies. The indications on that question in this decision notice are only indications.

This decision notice brings hope to an application that I currently have with the Commissioner which seeks a list of those who have provided legal advice to the Scottish Ministers on the competence of the Scottish Parliament to hold a referendum on independence within the current devolution settlement. As with Ms Stihler’s request, the Ministers have refused to confirm or deny whether the information is held or not. Currently, the Ministers are being asked for further submissions (having already provided two sets of submissions to the Commissioner) on their reliance on s.18.

Of course, the Ministers could appeal the Commissioner’s decision to the Court of Session arguing that the Commissioner has erred in law in her decision that the Ministers were not entitled to rely on s.18 to refuse to confirm or deny whether information falling in the scope of Ms Stihler’s request. The Ministers have 28 days from 6 July 2012 to decide whether to appeal or not and have until 21 August 2012 to comply with the decision if they decide not to appeal.
Scottish Information Commissioner tackles University’s FOI failings

July 6th, 2012

In February 2012, representatives of the Scottish Information Commissioner conducted an assessment of the University of the Highlands and Islands (UHI) and its compliance with the codes of practice issued under sections 60 and 61 of the Freedom of Information (Scotland) Act 2002 (FOISA). Almost every month the Commissioner’s assessment team visits a public authority in Scotland to assess its compliance with codes of practice. Public authorities will be chosen for a variety of reasons. The Commissioner decided to assess the UHI’s practice for a number of reasons, including that she had received no applications for a decision under s.47(1) of FOISA.

The report into that assessment made for grim reading. It revealed a poor level of compliance with FOISA including some 54 requests that had never received a response from the UHI and were considerably overdue (see paragraph 13 of the report). The report identified significant issues around the compliance with Section 1 of FOISA (the general right to receive information requested). This failure alone should have resulted in a significant number of applications under s.47(1) for a decision on the UHI’s technical compliance and is just one reason why it is surprising that the Commissioner had received no applications regarding the UHI.

Paragraph 39 of the report stated that in an internal audit report, it was noted that the UHI had taken an informal approach to handling requests for information. The UHI had no policies or procedures in place on FOI. The UHI had inadequate systems in place for logging, tracking and monitoring requests for information. Where such records were recorded they were basic and there was concern over how comprehensive the records were.

I won’t go through every single failing identified by the Commissioner’s assessment team. The above should give some flavour of what is contained within the assessment report and it is publically available for anyone to read. In essence, the UHI was completely failing to comply with the basic technical requirements of FOISA and the codes of practice. It is incomprehensible how the Commissioner had never received an application about an organisation with such poor compliance of FOISA.

The Practice Assessment resulted in the Commissioner taking the unusual step of issuing a Practice Recommendation. Since FOISA came into force on 1 January 2005 only one other Practice recommendation has been issued and that was in July 2010 to the Scottish Borders Council. Under s.44(1) of FOISA the Commissioner can issue a Practice Recommendation if she considers that a public authority is not complying with the Codes of Practice issued by the Scottish Ministers under ss.60 and 61 of FOISA. The previous commissioner took the view, and certainly the new Commissioner appears to have adopted the same view, that such a step should only be taken when a serious and systematic failure to comply with the Codes is found.

A Practice Recommendation t is not enforceable through the courts. However, if a public authority fails to comply with it in a reasonable timescale, the Commissioner can issue an Enforcement Notice under s.51 of FOISA. Such a step is much more formal and can be enforced by the Commissioner making a written statement to the Court of Session under s.53 of FOISA. If the Court of Session were to agree that the public authority has failed to comply with an Enforcement Notice, it can deal with the public authority as if it were in contempt of court. To my knowledge, the Scottish Information Commissioner has never issued an Enforcement Notice.

As an alternative to an Enforcement Notice the Commissioner could produce a report on the public authority’s failures and lay it before the Scottish Parliament under s.46 of FOISA.

Hopefully the UHI will work closely with the Commissioner and her staff to improve their practice around FOI and that no further action will need to be taken. Such basic and fundamental failures in the compliance with FOI seven and a half years after it came into force are of great concern and it is quite inexplicable how the UHI were able to go for so long with such basic and fundamental errors in its compliance unnoticed. As a wider issue, I do hope that if any other public authorities are failing in the same ways as UHI are that they will take note of all the publically available material on the Commissioner’s website, including the assessment of and recommendations to the UHI. There really is no excuse for a public authority in 2012 to be failing in the ways that the UHI were.

There are a number of documents which the Commissioner has produced in relation to the UHI arising out of the assessment in February. They are all linked to below:

Assessment Report – University of the Highlands and Islands
Action Plan – University of the Highlands and Islands
Practice Recommendation 01/2012 – University of the Highlands and Islands
Proposed Changes to FOISA: Freedom of Information (Amendment) (Scotland) Bill

May 31st, 2012

The Scottish Ministers have published the Freedom of Information (Amendment) (Scotland) Bill. This Bill aims to make some changes to the Freedom of Information (Scotland) Act 2002 and some of the changes within it are certainly needed.

The first major change that is needed is in relation to the time limit for bringing a prosecution under s.65 of FOISA. Section 65 makes it a criminal offence to alter, deface, block, erase, destroy or conceal a record held by the authority which has been requested under the general right to information found within s.1 of FOISA. There has to be an intention to prevent the disclosure of the record. Currently there is an unrealistic time limit of 6 months on brining a prosecution. The time that such evidence is uncovered by the Commissioner it is more than likely to be beyond 6 months by the time she would be in a position to report the matter to the Procurator Fiscal for consideration and certainly more than 6 months before they could have reviewed the evidence and decided to bring a prosecution.

The Bill amending the Act proposes introducing s.65A into the Act. This would significantly alter the length of time in which a prosecution could be brought. It would mean that the 6 months would no longer start on the date that the offence occurred (i.e. the date that the alteration, defacing, blocking, erasing, destruction or concealment took place). Instead, the 6 months would start on the date “which evidence that the prosecutor believes is sufficient to justify the proceedings came to the prosecutor’s knowledge.” There is a limit placed on this though. The prosecution could not be brought if it is more than 3 years since the offence was committed (or where it was a continuous contravention 3 years since the contravention last occurred).

There are very few situations where this offence is likely to occur. However, in cases such as the recent one involving NHS Ayrshire and Aaran, it is clear that there may be occasions where a prosecution might be justifiable. Of course, in the NHS Ayrshire and Aaran case the Commissioner found that there was no deliberate attempt to conceal the documents (paragraph 66). However, it demonstrates that there might just be cases where an offence has been committed. At least this proposal would ensure that should such a case occur that the Commissioner has the power to act and refer the matter to the Procurator Fiscal for consideration.

It is also proposed that Section 2 be amended to change the way in which the exemption relating to Her Majesty (s.41) operates. It would mean that communications with members of the Royal Family other than the Sovereign and the two people next in line to the Throne (currently HM The Queen, Prince Charles and Prince William) would no longer be subject to a class exemption. There would still be an exemption covering those communications, but it would be subject to the public interest test.

A further proposed change includes extending the provisions of s.18 to cover the exemptions of confidentiality (s.36), Court records etc. (s.37) and Personal Information (s.38). Section 18 removes the duty 16(1)(a) to disclose whether the public authority holds information falling within the scope of the request when refusing the request. This derogation to that duty extends only where if the information were held certain exemptions would apply to the information. The public authority must still explain to the applicant which exemptions would apply if it were the case that the information was held by the public authority and they are still required to consider the public interest.

The Bill also proposes some minor amendments to the exemption regarding information which is otherwise accessible to the applicant (s.25) which on a first look of the Bill do not make any real change to FOISA and the Bill’s explanatory notes confirm that.

Finally, the Bill will make changes to the powers in s.59 of FOISA. The s.59 power permits the Scottish Ministers to vary the length of time in ss.57 and 58 of FOISA. These relates to historical records and when exemptions cease to apply. The amendment proposed will permit the Ministers to make, by order, separate provisions for individual exemptions and records of certain descriptions. It gives the Ministers a greater degree of flexibility when altering the time periods concerned.

On the whole the Bill looks rather uncontroversial and the amendments proposed are to be welcomed, particularly the proposed amendment to the time limits for prosecutions under s.65. There are further changes which could be made to FOISA to strengthen it, but it would appear that this amendment Bill to FOISA is to be followed by further Bills later in the Parliamentary session. Hopefully the Justice Select Committee will have a look at this Bill, particulalry its provisions on prosecutions for offences under FOISA, as it considers amendments to make to the Freedom of Information Act 2000.
Avon and Somerset Constabulary’s made up costs

April 27th, 2012

So, Avon and Somerset Constabulary have been displaying on their website the cost to them of FOI. Only, it’s all a load of rubbish! The website contains some information as to how the figures have been calculated, but it transpires that the figures used were arrived at during an “informal meeting where no minutes were taken” resulting in there being no recorded information which can be disclosed under the Freedom of Information Act.

In essence we have a public authority putting figures in a prominent place on its website for which it has absolutely no basis. It sounds like all they have done is pulled random figures out of the air and used them to calculate figures for Freedom of Information. The whole idea about transparency is that this facts and figures are put into the public domain and not stuff that you’ve made up sitting round a coffee table one morning/afternoon.

I have replicated below my request in full to Avon and Somerset Constabulary and their response so you can see that I’m not just making it up and it will probably appear on Avon and Somerset Constabulary’s website in due course.

Request

On your website you are currently displaying, in a prominent way, the costs you say you have incurred in answering Freedom of Information requests. In light of that I request the following from Avon and Somerset Constabulary:

(a) Any recorded information held that relates to the actual time spent answering Freedom of Information (FOI) and Environmental Information Requests (EIR) to date in 2012.
(b) Any recorded information that was used to calculate that on average it took Avon and Somerset Constabulary 18 hours to answer a FOI/EIR.
(c) Any recorded information held that relates to the cost per hour of answer FOI and EIR requests to date in 2012.
(d) Any recorded information held that relates to the average cost per hour taken to answer an FOI/EIR request

If for any reason the cost of answering this request would exceed the appropriate limit then I will happily accept the information as it relates to the last 20 requests (starting from 28 March 2012 and working backwards) for Information responded to (inclusive of EIR responses) by Avon and Somerset Constabulary.

Response

Having considered the above request I am unable to provide much of the information that you require as it is not physically recorded and therefore does not fall under the scope of the Act. However in order to provide some explanation you may find the information below to be of interest.

The decision to publish the information referenced in your request and the guide figures used were established at an informal meeting where no minutes were taken and as such there are no records held that can be disclosed under the Freedom of Information Act (FOI).

The only recorded costs are those published on the Constabulary website under the response to a previous FOI question. Please see link for further details:http://avonandsomerset.police.uk/information/foi/QandA_Question.aspx?qid=1653. The figures quoted in that response are in respect of the staff members dedicated to FOI. However, the ‘true’ cost to the organisation is considerably higher when adding in the full resource implication of responding to an FOI request. For example, the costs of other staff identifying and collating information across the Constabulary, in addition to their normal roles, is not included in that figure and that will of course vary depending on the complexity of the question and the ease of the retrieval of the data. Due to the nature and variations within the process in the context of any individual request, these costs are not fully quantified or recorded.

As explained, the information required to respond to your request is not recorded, however, we have conducted a simple review of the last 20 requests received to establish if any contained a reference to the amount of time taken to identify and extract the data. From that sample group, only one response contained a brief note indicating the time spent on trying to establish an answer to the question and that indicated that it was approximately 7 hours.
FOI Practice Assessments: SLCC and SCS

April 27th, 2012

Under Section 43(3) of Freedom of Information (Scotland) Act 2002 (FOISA) the Scottish Information Commissioner has the power to assess whether a public authority is following good practice. The Scottish Information Commissioner recently published two practice assessments reports and action plans that staff at the Commissioner’s office had conducted.

Scottish Legal Complaints Commission

The Scottish Legal Complaints Commission (SLCC) has had its assessment report published by the Office of the Scottish Information Commissioner. On 24 and 25 January 2012 two members of the Commissioner’s team visited the SLCC to conduct a practice assessment on the SLCC’s practice around the FOISA and the Environmental Information (Scotland) Regulations 2004 (EIRs). The Commissioner’s staff spoke to a number of staff within the SLCC (including its Chief Executive, Rosemary Agnew, who becomes Scotland’s second Information Commissioner next week).

The report states that “in selecting the SLCC for assessment the Commissioner took into account the issues arising from the relatively high number of applications for decision he had received concerning the SLCC, compared to the size of the organisation.”

The report is more than satisfactory showing that the SLCC has taken steps to rectify problems identified within its FOI processes ahead of the Commissioner’s assessment. This has included employing an Information Officer who, among other things, has sole responsibility for FOI within the SLCC. The assessors were satisfied that there had been enough training on FOISA to ensure that members of staff throughout the organisation were capable of identifying requests for information within other correspondence when FOISA might not necessarily be mentioned (e.g. in complaint letters) and that they were aware of how these should be processed.

The report notes the SLCC’s practice of seeking clarification in accordance with Section 1(3) of FOISA in the acknowledgment letter. The SLCC uses a set of templates for responding to information requests and on the whole these were generally good. However, the Commissioner’s staff did make some recommendations on how to further improve the template letters.

In total the Commissioner’s staff made a total of six recommendations arising out of the practice assessment. None of these recommendations represented serious failures in practice and were more housekeeping matters to ensure that the standard of FOI practice compliance remains of a good quality.

SLCC Practice Assessment Report
SLCC Action Plan

Scottish Court Service

The Scottish Court Service (SCS) has had its assessment report published by the Office of the Scottish Information Commissioner. On 13 and 14 December 2011 two members of the Commissioner’s team visited the SCS to conduct a practice assessment on the SCS’s practice around FOISA and the EIRs.

The SCS’s system for recording and monitoring requests appeared, at the time of the request, quite burdensome and there does appear, from reading the report, the potential for requests to get lost or in the monitoring and tracking process. However, the report notes that the SCS was in the process of purchasing new software to monitor and record FOI requests which was hoped to be in place by March 2012. SCS HQ was only made aware of request received at a local level on a monthly basis, by which time deadlines for requests might have actually passed.

Some issues were highlighted with the SCS’s compliance with the statutory timeframe. It transpired that the SCS was using the response calculator on the Commissioner’s website, which is primarily aimed at requesters and calculates time for postage either side of the 20 working days. The SCS agreed to start calculating response times independently of the calculator on the Commissioner’s website.

The SCS’s response standard template for responding to a equirement for review was missing notification of an applicant’s right to appeal the commissioner’s decision to the Court of Session on a point of law. This is required by Section 21(10) of FOISA and was altered during the course of the assessors’ visit to the SCS.

The overall report on SCS’s practice in relation to FOISA and the EIRs is good. The report makes 10 recommendations as to how the SCS can improve its FOI and EIR practice. With the exception of timescales and informing applicants of their rights in accordance with Section 21(10) of FOISA the recommendations are mainly housekeeping ones to ensure a good level of practice is maintained.

SCS Practice Assessment Report
SCS Action plan
Charges for FOI requests?

April 6th, 2012

The Freedom of Information Act 2000 (FOIA) is under scrutiny and last night Government plans to change the current fee regulations under the Act were revealed by BBC Newsnight. Unfortunately the exact details of what these plans are, if they exist, not known. However, it is worthwhile looking at the issue of charging for information requests more generally.

Freedom of Information has become a vital tool in our democracy. It allows any person to approach a significant range of bodies that provide public services and ask them for information about the services they provide. Each public authority has a legal obligation to provide the information unless it is exempt from disclosure (and to be exempt there generally has to be a very good reason) and have to do so “promptly”. There is clearly a cost to providing answers to FOI requests and that currently lies with the public authority (although they can charge between £10 and £50 depending on the authority and the estimated cost of compliance). Anecdotally most authorities do not choose to apply a charge when they could legally do so. The reason for that is unknown; indeed it could be many different reasons.

There are some people who make requests for information that serve little or no public benefit at all, whether that be to a small or large section of the population on a local, regional or national basis. Some requests are clearly designed to harass, annoy or disrupt the public authority or are part of an obsessive campaign against the public authority in question. Undoubtedly charging for FOI requests might remove these requests for the public authority (although perhaps not the obsessive ones, some people who make such requests have spent significant amounts of money on litigation as well*). However, there already exists an adequate provision within the FOIA to deal with such requests in the form of s.14 of the FOIA. By applying s.14 to a request it means that the authority does not have to comply with the request (although it may ultimately have to defend its decision to the ICO if the applicant chooses to complain to the ICO about the application of s.14).

Looking at the ICO decision notices issued in just one month (February 2012) all of them which referenced section 14 (14 in total) were found in favour of the public authority. In other words the Commissioner agreed with the authority deeming the request as vexatious. While this is not, by any starch of the imagination, a scientific survey it does though show that if the public authority is correct in deeming a request as vexatious the Commissioner will agree with them.

However, vexatious (or annoying) requests are not the only reason as to why charges might be brought in. The overall burden of FOI has increased on public authorities. The number of requests has steadily increased since the introduction of the FOIA in 2005. It takes time to read the request, to locate the information, to consider it for disclosure, to redact any information that needs redacted and to write the refusal notice where information is withheld (either by redaction or by withholding the entire document). This will involve staff in different parts of the authority and has to be completed alongside other tasks. However, FOI is essential in allowing people to see inside the public authorities that work for them and deliver services for them on their behalf. It allows people to look at the decision-making process and to challenge unfair decisions where the decision-making process has been flawed.

In a time of austerity and cuts it might seem popular to remove the cost of FOI from the public authority by recovering it from the requester (who has already, let’s remember, paid for the information through general taxation) or to remove requests from the authority by placing charges which will discourage people from making a request for information in the first place. However, this will ultimately be bad for democracy.

Those in Government, including the Prime Minister, cite all the information that is currently freely available such as salary information, expenses information and such like. However, this information is only available as a result of FOI. Had the FOIA not been in place this information is highly unlikely to ever have been released. Expenses information has only really been widely published since the scandal over MPs expenses. The public and journalists have driven transparency by requesting information under the FOIA.

There is of course one way that public authorities could reduce the cost of FOI without actually amending the Act and that is to proactively disclose more information earlier. Making websites more accessible and much easier to navigate public authorities could proactively disclose much more information and it could be much easier for the public to locate. Public Authorities are getting much better at this, but some have to be dragged into the age of transparency kicking and screaming the whole way. Far too many authorities are still thinking “why should we publish this” rather than “why should we not publish this”.

What could the effect of fees for FOI requests be? Well, that’s not really something we can know for certain until it’s too late (i.e. until fees are actually introduced). It is not hard to imagine though that people would be discouraged by charges for information. Research conducted by the Office of the Scottish Information Commissioner does back this up. Research conducted by Ipsos MORI for OSIC suggests that 64% of people in Scotland would be discouraged from making a request if they were to be charged for it. There is no reason to suggest that this would not be replicated around the country.

Gone are the days where you hear the information that the Government wants to tell you and in the way it wants you to hear it. Official statistics tend to be quite high level and the devil is, as they say, in the detail. FOI can drill into the high level statistics revealed by the State and get a better idea of what is really going on.

The uncertain nature of FOI requests as well will undoubtedly put people off requesting information. If you knew that you had to pay a fee, even a small fee of say £10, to request information from the Government and all you get back is a refusal notice withholding all of the information you requested would you even bother trying to get the information out of the Government? The answer is: probably not. Even those who were able to afford the fee to make a request wouldn’t want to waste money when they can’t even guarantee a return.

The introduction of fees is a sledge-hammer to crack a nut and should be resisted at all costs. It will significantly diminish information access right for ordinary members of the public and place squarely back into the hands of the State the information that you get to know. In a time of austerity we can’t afford to lose access to rights that allow us to assess the decision-making process.

If you believe that information access rights are important and should be preserved then please sign this petition started by the SaveFOI campaign and consider writing to your MP to raise the issue with the.

*based on decision notices I have read relating to vexatious requests under both the FOIA and FOISA