Alistair Sloan, Advocate

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
Should Scotland Care about the Freedom of Information Act 2000?

April 5th, 2012

So, the Government is looking to change the Freedom of Information Act 2000 (FOIA). What does that mean for Scotland? We do have our own FOI legislation in Scotland: the Freedom of Information (Scotland) Act 2002 (FOISA). It provides rights of access to bodies such as the police, the Scottish Government our local authorities and many more organisations who spend public money and have influence over our lives. Should Scottish people really be worried about any changes to the FOIA? Well, aside from ensuring that those in the rest of the UK can access information from public bodies the FOIA does apply to Scotland as well.

Not every public authority who delivers services in Scotland is a “Scottish Public Authority” and therefore subject to the provisions of FOISA. Some examples include: the British Transport Police (who are responsible for policing our railways and railway stations); HMRC (the taxman); the Home Office (immigration, passports etc.); The House of Commons; The House of Lords; the Ministry of Defence and the BBC.

As you can see some big public authorities who carry out a great deal of work in Scotland (some of whom exercise coercive powers) are subject to the provisions of the FOIA rather than FOISA. While the Scottish Government might not, at this stage, be considering major changes to FOISA that will restrict information access rights under that Act the rights of Scots to access information for some public authorities is threatened by an attack on FOI by the UK Government.

BBC Newsnight held a brief debate tonight (5/04/12) on FOI (but after the switch to Newsnight Scotland had occurred) which came off the back of papers they had seen suggesting the Government will seek to introduce a new fee structure to the FOIA. This might mean flat fees for information requests or mean people being asked to pay large sums of money to see information that they should have an absolute right to. It might mean that requests don’t get made that might very well release information that is very much in the public interest. This can be done simply by passing secondary legislation and could very well be done on the side without anyone actually noticing until the new fee regulations come into force. It wouldn’t be the first time that major changes to law have been made by way of regulations without anyone actually noticing.

In essence, this post is all about why Scots should get behind the campaign to save the FOIA. It’s not irrelevant to us even though we have FOISA. FOI might seem like a waste of money or something that’s not very important. It is though. It gives each individual the right to ask public authorities for information and for that information to be given to you unless there is a very good reason not to. Without FOI you can ask but public authorities wouldn’t need any reason other than “we don’t want to” in order to not give it to you. You would have no way of challenging them and forcing them to release the information. Would the MPs expenses scandal ever have come to light without FOI, almost certainly it would not have. That’s just one example of how FOI has benefited the public.

I would urge everyone in the UK, even if you’re in Scotland, to get behind the campaign to Save the FOIA. One thing you can do is sign this petition on the Government’s e-petitions website. The other thing you can do is write to your MP. You can also write to your MP on this excellent website by MySociety.
IPCC v The Information Commissioner

March 30th, 2012

The First Tier Tribunal (Information Rights) has issued a very strongly worded judgment in an appeal by the Independent Police Complaints Commission (IPCC) against the decision of the Information Commissioner.

The decision relates to the application of s.14(1) of the Freedom of Information Act 2000 which provides that a public authority does not need to comply with a request for information made pursuant to the FOIA if the request is repeated or vexatious. It is important to note though that the Act requires the request to be repeated or vexatious and not the person making the request. A person could quite conceivably make two requests to an authority on the one day and have one deemed as vexatious and the other not.

The Tribunal made some important comments in its decision, particularly in the current climate arising out of the post-legislative scrutiny of the FOIA. The Tribunal, quite correctly, said:

Abuse of the right to information under s.1 of FOIA is the most dangerous enemy of the continuing exercise of that right for legitimate purposes. It damages FOIA and the vital rights that it enacted in the public perception.

Those who use FOIA rights to harass public authorities and to continue a campaign going against a particular authority (or group of authorities) damage the information access rights that have become so vital to our democracy. It frustrates the public authority which can in turn lead to a culture against FOIA in an authority (which can be seen in some of the recent comments and submissions surrounding the post-legislative scrutiny of the FOIA). Not only that, but it can lead to a tightening up of the Act which may have a damaging effect on those who use the rights responsibly. It does come to mind that perhaps the Tribunal has had the post-legislative scrutiny of the Act in its mind when writing this decision.

The Tribunal continued:

In our view, the ICO and the Tribunal should have no hesitation in upholding public authorities which invoke s.14(1) in answer to grossly excessive or ill – intentioned requests

The frustration felt by public authorities who deem requests to be vexatious, and are then subsequently told by the ICO or the Tribunal to deal with the request is quite understandable. Some authorities are perhaps not using the s.14(1) exemption as much as they ought to while others are perhaps using it inappropriately. While it is important that Public Authorities feel confident in using the s.14(1) exemption and that the ICO and Tribunal will support them it must not get to the point where public authorities feel over-confident in using the exemption because the ICO and the Tribunal will always support them.

It has always been a fundamental principle of FOI that the requester and their reasons are largely irrelevant in the consideration of a request for information. Anything which harms that in turn harms FOI. Some people may make repeated and frequent requests to a public authority, but that does not mean that those requests should automatically be exempt by virtue of s.14(1): the s.14(1) exemption must not become a way for authorities to keep matters that ought to be released secret. In the context of this decision the Tribunal was clearly correct to hold that the requests were vexatious. Making roughly one request every month for two years to one authority, some of which are wide and indiscriminate in nature, is clearly an abuse of the FOIA and the IPCC were entirely correct in applying s.14(1) to Mr Andrew’s requests. It is hard to imagine a legitimate purpose that would result in such a large volume of requests being made to a single authority.

It is good that the Tribunal issued such a strongly worded judgment in this case and hopefully it will begin to go some way to alleviating fears mong authorities in relation to being unable to deal with people who place a significant burden on the authority with what can on occasions appear to be a complete obsession with the authority. One only needs to look at the WhatDoTheyKnow website to see examples of people who have an unhealthy obsession with uncovering corruption that really doesn’t exist (as an example of vexatious requests in action).
South Lanarkshire Council v The Scottish Information Commissioner

March 28th, 2012

This decision of the Court of Session (Extra Division, Inner House) delivered on 27 March 2012 by Lord Marnoch is in relation to an appeal by South Lanarkshire Council (“the Council”) against decision 056/2011 of the Scottish Information Commissioner (“the Commissioner”). It concerns a request for information made pursuant to the Freedom of Information (Scotland) Act 2002 (“FOISA”) by Mr Mark Irvine relating to the number of individuals employed by the Council placed at specific points in the pay structure.

The full facts of the case are set out within the Commissioner’s decision. The Council, after initially ruling Mr Irvine’s requests as vexatious, withheld the information sought by Mr Irvine on the grounds that it was personal data and to disclose the information would be a breach of the Data Protection Principles. This exemption is provided for within Section 38 of FOISA, specifically the Council applied Section 38(1)(b) of FOISA to the information sought by Mr Irvine. The Commissioner found that the Council had incorrectly applied Section 38(1)(b) of FOISA and he ordered the Council to disclose the information to Mr Irvine. The Council exercised its right under Section 56 of FOISA and appealed to the Court of Session.

One of the contentions that the Council made to the Court was that the Commissioner had erred in law by failing to identify Mr Irvine’s “legitimate interest” in obtaining the information sought. There is not normally a requirement under FOISA to consider the interests or reasons behind a request for Information under FOISA. However, Schedule 1 to the Data Protection Act 1998 (“DPA”) places an obligation upon the “data controller” (in this case the Council) to ensure that the processing of information is fair and lawful. It goes on to provide that the data should not be processed unless certain conditions are met. It should be noted that in this case processing the data would be its disclosure under FOISA. Relevant in this case is paragraph 6(1) of Schedule 2 to the DPA. It provides that the data can be processed if it is necessary for the purposes of a legitimate interest of the data controller, or any third party to whom the information would be disclosed (in this case Mr Irvine and the world at large). There is an exception to this and that is where the processing would be “unwarranted…by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.” The data subjects in this case would be the employees who fall within the information sought by Mr Irvine.

In essence the Council had to, on this occasion (and unusually in FOISA requests), consider what legitimate interest Mr Irvine had to the information sought. Furthermore the disclosure of the information had to be “necessary” for the pursuance of that legitimate interest. The Council also contended that the Commissioner had failed to separately consider the necessity of the disclosure to Mr Irvine’s pursuance of any legitimate interest identified.

The Court of Session rejected both of these arguments. It found that when viewing the Commissioner’s decision as a whole the Commissioner had identified a legitimate interest and the Court agreed with that legitimate interest. Furthermore the Court also held that “the Commissioner could only have concluded that necessity was made out.” Disappointingly, the Court of Session did not say one way or the other whether the Commissioner’s approach in deciding this was correct. They were satisfied that even had the approach, applying a stricter test, advocated by the Council been followed, necessity would have been made out.

The Court of Session refused the appeal by the Council and upheld the decision of the Information Commissioner. It remains to be seen whether the Council will further appeal to the United Kingdom Supreme Court. Such an appeal would need to be filled within 42 days of the Court of Session’s decision and with the leave of the Court of Session.

POSTSCRIPT: 15/04/2013 – South Lanarkshire Council has appealed to the United Kingdom Supreme Court. The case is due to be heard by that court on 8 July 2013.
In defence of FOI: Part 3

February 23rd, 2012

Freedom of Information is under attack. In my last post I looked at the subject of vexatious requests, a subject that I will undoubtedly return to in a future post as it does appear to be a feature in a number of recommendations made to the Justice Select Committee by a number of public bodies. However, in a series devoted to defending FOI legislation I thought I would look at some of the things we know now that we probably would not have known about had it not been for FOI. An excellent example is the recent decision against NHS Ayrshire and Arran. While not a request made under the specific piece of legislation that is under scrutiny by the Justice Select Committee it demonstrates quite effectively the very real benefits of FOI and just why we should be doing all we can to both protect and enhance FOI rights.

The Scottish Information Commissioners decision in the application by Mr Rab Wilson against Ayrshire and Arran NHS Board (036/2012) is a lengthy decision notice to read. The main decision runs to almost 30 pages and has some 203 paragraphs. The background to the request is complex and lengthy, but is set out clearly in the Commissioner’s decision in paragraphs 3-22. Leaving aside the severe criticism of the NHS Board’s records management processes (something to which I shall return in a future post) the information that was eventually released as a result of the Commissioner’s decision is of great public importance. Had it not been for FOI legislation with a strong and independent regulator then it is hard to envisage a situation where this information would have ever come to light.

The information released reveals some serious failures by the NHS Board. The application was made by a Staff Nurse employed by the NHS Board who was concerned about the way in which serious incidents which had involved the deaths of around 20 patients had been investigated and the subsequent actions taken by the NHS Board. The saga stretches back some five or six years and reveals sheer incompetence. While I do not intend on focusing on good records management in this post (that will feature in a future post) the poor records management in the case may very well have put the lives of staff and/or patients in danger.

The request centred on Critical Incident Reports and Significant Incident Reports. The request also related to the action plans that followed these reports. These reports and plans are critical as they form part of the review and learning process from serious events within the NHS Board. The request never started out as an FOI request. Initially it appears that Mr Wilson sought the information in his capacity as an employee of the NHS Board. There appeared to have been a practice of making these reports and plans available to staff upon request (although there was a change in policy that put the decision as to who obtained the reports and plans into the hands of a “Relevant Director”). Initially the NHS Board said that it only held one report that fell within the scope of Mr Wilson’s request. This was something that the NHS Board maintained for sometime even after the application to the Commissioner had been made. However, it became apparent that there were serious failings in the NHS Board’s records management policy and procedures. Mr Wilson made his initial application to the Commissioner on 11 March 2011. There appeared to be 32 Critical Incident Reports for which no action plan was held. Had this been the case then this in itself would be a serious matter, by the very nature of these reports then the NHS Board must have undertaken some form of formal exercise to review what had happened and what could be done to ensure that such incidents didn’t happen again in the future. However, on 4 July 2011 (after having maintained since April that no further action plans existed beyond the one already disclosed) the NHS Board located some 56 Critical Incident Report Action Plans. The NHS Boards reason for having not located these earlier was that they were sitting on a drive which they did not, it appears, routinely search as it contained information personal to individual members of staff. The NHS Board stated that it had not anticipated that these reports might be located on this particular server.

The background to this case is not really all that important, but rather what it revealed is important. It revealed serious failings in records management at the NHS Board. It is unlikely that these failings would ever have been discovered had it not been for the existence of the FOI legislation and the public scrutiny that it creates. Those serious failings in records management meant that the NHS Board had absolutely no idea where some critical documents were located. These documents are of the sort that staff and management are likely to require access to after they were initially created and as such were of the sort that you would expect to be located quickly and without difficulty. These are the sorts of documents that might, for example, be required by the NHS Board’s lawyers as evidence to show compliance with Health and Safety legislation. Were the actions set out in these action plans ever performed? There certainly doesn’t seem to be any evidence as to whether they were or not. Had the right people seen these reports at the right time to make the right changes to processes? If not then lives could have been put in danger all because of poor records management.

This FOI request revealed a shockingly poor level of Governance in a public authority charged with the lives of a large number of people. Had these failings not been picked up then it is more than possible that something could have been missed and the consequences of that could have, in the most serious of cases, resulted in deaths.

It is requests like this one that reveal serious matters of great public importance and interest that justify the existence of FOI laws. Would Mr Wilson have made his requests if there was a fee for making the request? Perhaps not, and the public would have been worse off as a result. While the cost to the taxpayer will have been significant in respect of this request (when one takes into consideration the number of years it happened over and the intense investigation conducted by the Commissioner) may very well save a life and will certainly save public money in the future. Those savings, in particular the former, cannot be quantified and justified against the expenditure by a public authority on handling an FOI request. The damages that could have been awarded in a case against the NHS Board in future actions where it had no evidence to demonstrate the steps it had taken to mitigate such a situation happened could very easily exceed considerably the money spent on handling the fOI request (especially when the cost of defending an action are taken into consideration). A simple request to a public authority can uncover serious failings within the organisation that might otherwise have gone undetected costing the taxpayer a lot more than it cost to handle the request.

The Commissioner’s decision can be read in full here and is very much worth a read if you want to really understand what happened in this case and just why FOI is a good thing that should be encouraged.