Alistair Sloan, Advocate

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
Persistant or Vexatious?

August 13th, 2012

Vexatious requests (and indeed vexatious requestors) has been a battleground since the introduction of the Freedom of Information Act 2000 and Freedom of Information (Scotland) Act 2002. Both the FOIA and FOISA look at the request rather than the requestor when it comes to considering a vexatious request. While other contact between the requestor and the public authority can (and will) be considered it is not about proving that the requestor is a vexatious requestor (in the way a court can declare a litigant as vexatious), but rather demonstrating that their request is vexatious.

The UK Information Commissioner has recently issued a decision notice looking at Leicester City Council’s use s.14(1) of the FOIA and made some interesting comments regarding the Council’s handling of this particular request.

The complainant has a history of corresponding with the Council over issues to do with it’s compliance with a particular section of the Licensing Act 2003. There were more than 150 pieces of correspondence given to the Commissioner by the Council in support of its position that the requestor was vexatious. There are a number of interesting facts about this case which appear to have influenced the Commissioner’s decision.

The Council is required to make certain information available to the public upon request by the 2003 Act. Leicester City Council makes this information available online and is therefore easily accessible to members of the public via the Council’s website. However, the Council did not seek to rely on the exemption at s.21 of the Act (information otherwise available). One can only speculate as to the Council’s reasoning for this, but it might be influenced by the following facts. The Complainant in this case only ever corresponded with the Council and the Commissioner by way of handwritten letters. The Commissioner said, at paragraph 9, that the complainant’s letters demonstrated “no indication of any familiarity on the part of the writer with any branch of information technology.” This is interesting in that it appears as though it might have gone someway to influencing the Commissioner’s decision. 150 pieces of correspondence on a very narrow subject might normally be something that would be expected to fall within the scope of s.14(1), even more so when the information is routinely published on the Council’s website.

Another part of the Commissioner’s decision that is of interest is what the Commissioner had to say at paragraph 42 of the Decision Notice which stated:

The council is at risk of misleading itself in regarding the complainant as vexatious and going on to conclude that therefore his information requests are vexatious

The FOIA talks about a request as being vexatious and not a requestor and this is confirmed through a long line of decisions from the Commissioner and Tribunal. A requestor’s previous contact with a public authority can be considered, but only in determining that the request is vexatious. This is a very real danger for all public authorities when they are dealing with information requests from people who they have regular contact with.

The Commissioner also considered Thackeray v Information Commissioner and said “that the complainant’s dogged pursuit of a line of enquiry should not be lightly characterised as an obsessive campaign of harassment.”

There is a fine line between presistently enquiring into something and harassing the authority. This is an important distinction because if it does not exist someone investigating something which the public interest clearly demands the continued investigation of then they would be hindered as their requests would become vexatious and this would give the public authority an absolute way of avoiding embarrassing or damaging matters from being investigated.

The Commissioner’s decision in this case seems to be, to me anyway, an interesting one. I’m not prepared in this case to say whether I agree or disagree with the Commissioner’s decision as I’m not aware of the full facts. Clearly the ICO has seen something in this case that sets it apart from other similar cases. Perhaps the complainant’s lack of IT skills and access had something to do with it, perhaps there is something in the submissions which means it wouldn’t be in the public interest for the Commissioner to find that the request was vexatious. There is no public interest test built into s.14 of the FOIA, but the case law in this area does certainly suggest that public interest considerations have been taken into account when defining the scope of s.14.

I’m not going to criticise Leicester City Council over this case as I have only the Commissioner’s decision to consider. However, it will be interesting to see whether the Council appeals this decision to the Tribunal.
Technical meanings and Information Requests

August 6th, 2012

Last week Rosemary Agnew, the Scottish Information Commissioner, issued another important decision under the Freedom of Information (Scotland) Act 2002 (FOISA). In finding that the Scttish Ministers had breached Section 1(1) of the FOISA by interpreting a request in an unduly restrictive way the Commissioner reminded public authorities that they need to think like the public when considering a request.

In decision notice 122/2012 the Commissioner considered a request for information made to the Scottish Ministers regarding the awarding of a Damehood to Elish Angiolini, former Lord Advocate. The applicant had sought “information on the awarding of (and any proposal to recommend) a Damehood (DBE) to former Lord Advocate, Eilish Angiolini, including the identity of who in the Scottish Government recommended her for the honour.” (Para 1). Following investigation by the applicant, he discovered that there was a difference between “nomination” and “recommendation” in the honours process. The Ministers refused to accept that the applicant’s request was inclusive of both and sought to argue that the applicant was trying to widen his request at this stage. The Commissioner was not convinced.

In her decision, the Commissioner, states that she did “not consider that the distinction between the two [nomination and recommendation] is generally known” (para 19) nor that the applicant “intended to make such a distinction in his request” (para 19). The Commissioner said, also at paragraph 19, that:

It is unrealistic to expect those who make information requests to be aware of the technical or specialised language used by public authorities

The Commissioner also decided that the Scottish Ministers were entitled to rely on Section 18 of FOISA to refuse to confirm or deny whether information was held by them which fell within the scope of the request (on a proper interpretation of the request).

This is one thing that has infuriated me a lot with certain public authorities. When public authorities use words in a different way from the ordinary meaning they should not expect the public to be aware of this and should interpret requests accordingly. If they are unsure as to the meaning of the request (and it is reasonable for them to be unsure) then they always have the option of seeking clarification from the applicant.

This decision is a clear signal to public authorities subject to FOISA that they must not interpret requests in an unduly narrow way based on the technical use of words where the technical use of that word is not commonly known to the public. Common sense should have dictated to public authorities prior to this decision that such interpretations would likely be contrary to both the letter and spirit of the Act.

This is another sensible decision from Scotland’s new Information Commissioner which strengthens the Act and provides strong guidance to public authorities on the practical operation of FOISA.
Justice Committee’s FOIA conclusions – Part 2

July 27th, 2012

Yesterday the Justice Committee published its report into the Freedom of Information Act 2000 (FOIA) following its post-legislative scrutiny of the Act. I have already looked at the committees report insofar as it relates to the big FOI battles and in this post will look at the recommendations of the Committee that will strengthen the Act. You can read the first blog post here.

One of the big frustrations about the way in which the FOIA operates currently is the way in which public authorities can kick requests into the long grass. Under s.10(1) of the FOIA public authorities must respond promptly to a request and no later than 20 working days following its receipt. There is an exception to this time limit provided for in s.10(3) of the FOIA which means where public authorities are having to consider the public interest they can take such time as is reasonable in the circumstances. This has come to be known as the “Public interest extension”. There is no upper limit on this and public authorities can (and do) take months to provide a response to a request. The Committee has dealt with this point in its report by recommending that the current good practice guidance of the Commissioner be put into statute. In essence this would mean that a public authority could only extend the initial 20 working day deadline by a further 20 working days to consider the public interest test. Any further delay would only be permissible where a third party has to be consulted. I understand the Committee’s reasoning behind the further extension for third party’s as it can be difficult to get private companies or individuals to respond in a manner that is timely so as to meet the time limits in the FOIA. However, I would want to see other public authorities excluded from such an extension. There is no excuse for another body subject to the Act not to respond promptly when they need to be consulted about a disclosure.

Another area of frustration is the length of time taken to conduct internal reviews. In Scotland, we have had since the introduction of our Freedom of Information legislation a clear 20 working day limit on internal reviews. In the FOIA the only real time frame was the requirement for a prompt determination under the code issue by the Justice Secretary pursuant to s.45 of the Act. The Information Commissioner has issued guidance on internal reviews saying that they should normally be conducted in 20 working days and certainly no longer than 40 working days. However, some authorities have had great difficulty in complying with this good practice guidance and it is clear that a statutory timeframe is needed. So, it is very much welcome that the Committee makes such a recommendation. The Committee said:

It is not acceptable that public authorities are able to kick requests into the long grass by holding interminable internal reviews

The Committee has recommended that a statutory time limit of 20 working days be placed on internal reviews. Disappointingly though they also recommend that this can be extended by a further 20 working days where it is a particularly complex or voluminous request. Putting it on a statutory footing will give the Commissioner some additional “bite” when it comes to dealing with extraordinarily long delays in dealing with internal reviews. It will also provide a clear point at which a s.50 complaint can be made. I would suggest that, as with the current position on the s.10(1) deadline, that a applicant should be notified within the initial 20 working day limit, in writing, when the deadline for a review is being extended. That reflects current good practice of the Commissioner that is frequently ignored by authorities, even those who rarely take longer than 40 working days to consider a review.

Another welcome recommendation in the report is to the time limit on brining a prosecution under s.77 of the Act. It is clear that the current position of a prosecution having to be brought within 6 months of the offence being committed is impractical. Even with the strengthening of the time authorities have to respond to requests and internal reviews the Commissioner would be left with insufficient time to find sufficient evidence to bring such a prosecution. Even in Scotland where there are two clear periods of 20 working days (one each forthe initial response and the internal review) the ineffectiveness of the equivalent provisions has been noted. The Justice Committee has suggested that the offence be made an “either way” offence meaning that the 6 month time limit is no longer an issue. It has also recommended an increase in the maximum penalty from £5,000.

This is important because the Commissioner has said publically a number of times that he has seen evidence of offences being committed under s.77 but has been powerless to do anything about them. The Committee said in its report:

The summary only nature of the section 77 offence means that no one has been prosecuted for destroying or altering disclosable data, despite the Information Commissioner’s Office seeing evidence that such an offence has occurred. We recommend that section 77 be made an either way offence which will remove the limitation period from charging. We also recommend that, where such a charge is heard in the Crown Court, a higher fine than the current £5000 be available to the court. We believe these amendments to the Act will send a clear message to public bodies and individuals contemplating criminal action.

This is a clear message from the committee then to those authorities that engage in criminal activities to avoid answering FOI requests.

I wrote recently, in light of the G4S Olympic shambles, on whether private companies delivering large public sector contracts should be subject to the FOIA in their own right. I concluded that there certainly is a case for large companies carrying out public sector contracts to be covered by the FOIA in their own right making them more accountable to the public. The Committee though does not see the need for such action to be taken and state:

We believe that contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act, although it may be necessary to use designation powers if contract provisions are not put in place and enforced. We recommend that the Information Commissioner monitors complaints and applications for guidance in this area to him from public authorities.

The committee is satisfied that the current system of placing clauses in contracts to ensure that private companies need to co-operate with public authorities on FOI is sufficient. The power of course is there for partial designation and the Government should not be afraid to use it. The Committee clearly doesn’t rule out entirely the use of s.5 of the Act. The Information Commissioner and the Government should be monitoring the situation closely and be willing to partially designate a private company where problems exist.

One final recommendation made by the Committee that I want to look at is in relation to Disclosure logs and the publication of the names of those making information requests. Currently, no public authority who operates a disclosure log publishes the name of the person who made the request. The Commissioner doesn’t publish the name of applicants in decision notices either (although the Scottish Information Commissioner routinely publishes the names of both parties in decision notices).

There are Data Protection considerations here. Publishing the name of applicants would be considered as processing personal data. The Commissioner doesn’t publish the names of applicants in his decision notices because of Data Protection. The Scottish Information Commissioner doesn’t have any bother, although this might be down to the way in which it is approached. From the outset applicants for a decision under s.47(1) of the Freedom of Information (Scotland) Act 2002 are told of the Scottish Commissioner’s view on publishing names and are given an opportunity to state why they believe their name should not be made public. If the Commissioner hears of no reasons at all it could be said that people have effectively consented to their name being made public as part of the decision notice.

Until there is a statutory basis of such a move public authorities would be well advised not to take such a step so as not to get into bother with the ICO (who regulates data protection as well as the FOIA). It is a complex issue and one that I might devote a future blog post to.

On the whole I am very pleased with the report that has been published by the Justice Select Committee. It is both fair and balanced. It makes it clear that FOI is of a greater benefit than it is cost and I hope that the Government accepts its recommendations. Change to the Act is some way off though. The content of the report will need to be considered by the Ministry of Justice and the Cabinet. I wouldn’t expect to see a Bill making amendments to the Act before early next year and it could be the end of next year before any changes made come into effect. However, this report will certainly make it much harder for the Government to introduced amendments that will weaken the Act and will hopefully make those who continually try to discredit the Act quieten down, for a while anyway.

Links
Justice Committee’s report (pdf)
Oral and Written evidence (pdf)
Additional (unprinted) evidence (pdf)
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