Alistair Sloan, Advocate

The BBC and FOI

February 9th, 2012

The British Broadcasting Corporation (BBC) is listed as a public authority for the purposes of the Freedom of Information Act 2000 (FOIA). However, it is only covered insofar as the information requested is not held by the BBC for the purposes of journalism, art or literature.

For some time now that there has been a lot of disquiet about just how broadly the BBC apply this exemption. The exemption is a legitimate one. It would not be good for the licence fee payer if, as a result of the FOIA, the BBC had to release information about programming, including future programming. It could harm the commercial viability of the BBC, which has an important overall aim. However, it does appear that the BBC has taken the exemption as cart Blanche to refuse any request that relates to any of its programming, even in the slighest of ways.

A good example of this broad interpretation can be found in this request made to the BBC. The request does relate to programming, but the question is whether the information requested is held for the purpose of journalism, art or literature. The BBC seem to think so, but as detailed above anything that relates in the slightest way to their programming output is generally withheld. Unfortunately, for the requestor in this example, the BBC is not also subject to the Environmental Information Regulations 2004 because had they been then it could be argued that the request is one for environmental information.

The current leading case (although it has been appealed to the UK Supreme Court with a decision due next week) is Sugar v The British Broadcasting Corporation and The Information Commissioner. Of particular interest is the discussion at paragraphs 53 to 59 and it would certainly seem that based on the Court of Appeal’s decision that this particular request falls outside of the scope of the derogation provided to the BBC under the FOIA. However, the applicant has indicated that the Information Commissioner agrees with the BBC on this particular request (although as I understand it no decision notice has yet been issued).

If the purpose of the derogation was to provide a virtually catch-all exemption for the BBC (the approach which the BBC and the Commissioner appear to have adopted) then it must be asked why make the BBC subject to the FOIA at all? No real purpose would be served if all recorded information held by the BBC was exempt. That suggests to me that there has been a fundamental flaw in the approach that the BBC and the Commissioner have taken.

The decision in the appeal currently before the United Kingdom Supreme Court is expected on Wednesday 15 February 2012 at 09:45. This is a vitally important decision from the UKSC for the future of FOI as it relates to the BBC. Whatever the decision of the Court as it relates to the information requested by the late Mr Sugar, it is vital that the Court produces a judgment in which they provide general guidance in Obiter as to the approach that should be taken by the BBC, the Commissioner, Tribunal and lower courts in determining whether information is “held” for the purposes of journalism, literature or art. If the result is a continued existence of the broad interpretation currently taken then the matter should be looked at by Parliament.

The Justice Select Committee has recently stopped accepting written submissions as part of its post-legislative scrutiny of the FOIA. I did provide a submission to the Justice Select Committee that I hope they will accept. However, the unique position of the BBC as the main public service broadcaster did not feature in my submissions. I suspect though that others will have mentioned the BBC in their submissions to the Select Committee. It may well be the case that a tightening up of the derogation is needed. I can’t profess to be an expert on what sort of tightening would be required or even how one would go about trying to work that one out. It is difficult because there is a very good reason for exempting the information held by the BBC for the purposes of journalism, art or literature. There is also a legitimate argument that an organisation which receives 100% of its funding from a Government levied “tax” should be open to public scruitny under the FOIA. However, the question as to what should and should not be covered by this derogation remains.

I look forward to sitting down and casting my eye over the Supreme Court’s judgment next week and will certainly aim to blog next Wednesday on the content of the judgment. The judges who heard the case are generally seinsble in their approach so I ame hopeful that some good guidance will comes out of this judgment.
A referendum on Scottish Independence: Would it be legal?

January 13th, 2012

One Scottish issue has had a lot of debate, discussion and broadcast time spent on it this week. The subject even managed to dominate Thursday’s edition of Question Time which came from London and made an appearance in Prime Minister’s Questions in the House of Commons on Wednesday afternoon. That’s right; I make reference to the issue of Scottish Independence.

In May 2011 the SNP won a historic victory in the Scottish Parliament. Of course it would be foolish to suggest that this was down to their lifelong policy of achieving independence for Scotland(though that doesn’t stop some members of the SNP claiming so). Undoubtedly though this gives the SNP a mandate to hold a referendum on the question of whether Scotland becomes independent or not.

While it is clear that the Scottish Government have a mandate for a referendum, it is less clear whether they are actually able to hold it. Questions arise over the legislative competence of the Scottish Parliament in passing legislation to hold the referendum. A referendum on Scottish Independence cannot be held without first having passed primary legislation. Those outside of the legal world could be forgiven for thinking what the problem is, after all the SNP won a majority and therefore the people of Scotland have confidence in them and in their manifesto and would undoubtedly expect the SNP to do what it promised in its manifesto. However, the problem is not a simple one.

The Scottish Parliament is not supreme in the same way that the UK Parliament is in Westminster. Its powers are set out within the Act of Parliament that brought it into being: The Scotland Act 1998. That Act in effect gives Holyrood the permission to pass legislation on any matter that is not reserved to Westminster. Essentially, any area that’s not specifically mentioned within the Scotland Act 1998 as being reserved is fair game for the Scottish Parliament to legislate. A political party could make all the promises it wanted in the world during an election campaign, but if the Scottish Parliament doesn’t have the legal power to legislate then quite simply it cannot legislate.

Those who sit within the Scottish Parliament have free will and could quite clearly pass legislation on a reserved matter. However, that legislation would be unenforceable. The Scotland Act 1998 states quite clearly that any “Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.” (Section 29(1)). There is a process whereby an Act of the Scottish Parliament can be challenged, first in the Court of Session and laterally before the Supreme Court of the United Kingdom, if it is believed that it is outside of the legislative competence of the Parliament. If the Courts so find then the legislation is declared to be ultra vires and is struck down; in essence it has no legal effect whatsoever.

What does all of this have to do with a referendum on Scottish Independence? Schedule 5 of the Scotland Act 1998 provides a list of “reserved matters”. The second matter on the list of those that are reserved to Westminster is “the Union of the Kingdoms of Scotland and England”. A referendum on Scottish independence relates to the Union of the Kingdoms of Scotland and England. The purpose of the referendum is to see if the Scottish people wish to bring an end to that 304 year old union. The SNP are obviously in favour of bringing an end to that union and would hope that the result of any referendum on Scottish Independence would eventually bring the union to an end.

It would appear that to hold such a referendum is currently out with the legislative competency of the Scottish Parliament. There are persuasive arguments for the position that it is not out with the legislative competency of the Scottish Parliament. However, my own personal view is that any legal challenge to the referendum legislation under the current law would more likely than not be held to be ultra vires.

Whatever your view on the legislative competence of the Scottish Parliament on holding this referendum under the current law, it would be foolish to think that there would be no challenge to the legislation. Any challenge to the legislation could delay the holding of the referendum by a number of years. It could take as many as two or three years before a determination from the Supreme Court as to whether the legislation is within the legislative competence of the Scottish Parliament or not.

If we assume that the legislation would be challenged and it were then found to be within the legislative competence of the Scottish Parliament and follow the SNPs preferred timetable for passing the legislation it could be as late as 2016 or 2017 before the referendum could be held. If it were to be held in 2016 it could get mixed up with the planned elections to the Scottish Parliament in May of that year. The delay would only lead to more uncertainty and could be very damaging for Scotland and the UK in economic terms. Business does not tend to like this level of uncertainty in politics and it might well put off foreign investors from bringing much needed investment into Scotland and the UK.

There is, I submit, no harm whatsoever in Westminster passing primary or secondary legislation clarifying the position and eliminating any potential challenge to the resulting legislation. One would expect the SNP to welcome such clarification as it means they can progress forward with the referendum with no doubt whatsoever that the referendum would be legal and won’t get tied up in a legal row over whether the Scottish Parliament had the power to pass it.

While it might be for the Scottish people to decide whether they wish to break away from the rest of the UK and become independent, Westminster has a place in the debate. Scottish Independence won’t just affect the people of Scotland but will affect everyone in the United Kingdom. Scottish MPs sit in Westminster and have just as much right to represent their constituents as the MSPs in Holyrood and those who represent English, Welsh and Northern Irish Constituents have the right (and indeed the responsibility) to play their part in the debate in order to represent the best interests of their constituents.

The legal question is by no means certain and people on both sides of the “is it legal?” divide undoubtedly have justification for their opinion. It would, in my view, be better for all sides if this question was put to rest quickly, without years of expensive legal action in the Court of Session and Supreme Court, and the people of Scotland allowed to have their opinion known as soon as is reasonably practicable.

The UK Government have launched a consultation on some of the questions surrounding the legislative competence of the Scottish Parliament holding a referendum and what should be done to ensure that any referendum is legal, fair and decisive. The consultation document can be found here. Responses are invited from anyone, regardless of their place of residence, by Friday 9 March 2012.
FOI and private E-mail accounts

December 29th, 2011

The Information Commissioner’s decision that official content held on a private E-mail account is subject to Freedom of Information laws appears to have come as a surprise to some, especially Senior Ministers and policy advisers. Really, as the Commissioner pointed out in his decision, this should not have come as any surprise to anyone. The Act covers recorded information held by or on behalf of a public authority. Clearly official correspondence and documentation held within a private E-mail account is held by or on behalf of the public authority and is therefore within the scope of the FOI laws.

What the Commissioner’s decision doesn’t do is make private E-mail accounts generally open to FOI. They are no more covered by the Act then personal correspondence carried out on official E-mail accounts. Personal correspondence and party business are not covered by FOI whether they are held on official or personal E-mail accounts. The Commissioner’s decision doesn’t mean that employees within public bodies need to hand over the passwords to their private E-mail accounts to their bosses so that they can be searched if an FOI request comes into the authority to see if relevant information is held on a personal account.

What it does require is that when the FOI Officer contacts an individual to see if they have any information that falls within the scope of a request received they have to consider whether there may be anything relevant within the personal E-mail account and if so search for it and hand it over to be considered along with the other information held. Public sector employees, Ministers and policy advisers don’t need to worry about their personal E-mail addresses being disclosed as this would undoubtedly breach the data protection principles and be exempt from disclosure. In any event the FOI legislation doesn’t provide a right to a copy of the E-mail only to the information contained within it.

What it requires is honesty on the part of public sector employees and others subject to FOI laws. That may be a tall order for some in the public sector, especially politicians. Knowingly not disclosing information held within private E-mail accounts would constitute a criminal offence. Likewise deliberately using private E-mail addresses as a way of trying to conceal it would constitute a criminal offence.

Does anyone really need to worry about their private E-mail accounts being accessed? Well, not really. Simple policies put in place by public authorities could avoid many of the issues. Banning the use of private accounts for official business would be a good place to start. I cannot think of a conceivable reason as to why any person subject to FOI would need to use their private E-mail address on a regular basis for work related activities? It’s unprofessional for a start! If in the rare event that a person does need to use their private E-mail account adding an official E-mail address into the “cc” field (either the employees own or the official e-mail of the recipient(s)) would also ensure that it is held officially on the authorities systems. It could then be picked up in the normal way that E-mail correspondence is identified when carrying out relevant searches in response to an FOI request. Indeed, the copying in of official E-mail addresses is suggested by the Commissioner as being a policy that public authorities should have in force to ensure that issues around information being held on private E-mail addresses is not missed.

The suggestion that the commissioner’s decision that FOI applies to text messages and private E-mails is an “over-extension of its original intent” is not something that can really be substantiated. It appears as if it might well be an attempt to amend the FOI laws to make them tighter and easier for Ministers (in particular) to avoid. Such moves must be forcefully objected to. Any tightening of the FOI laws must be resisted.

As for the suggestion that Cabinet minutes should be absolutely exempted from FOI laws by the outgoing Cabinet Secretary are, to put it mildly, a ridiculous suggestion. There are a number of exemptions under which these can be exempt from disclosure and there is not a steady stream of decisions coming from the ICO or the Courts forcing the Government to release such minutes. It’s not hard to argue that maintaining the exemptions being relied upon to exempt the minutes (and other papers) is in the public interest. However, it should be capable of requesting these and for it to be carefully considered whether it is actually in the public interest to withhold the information contained within them. Providing an absolute exemption to Cabinet minutes and documents would, in my view, run counter to the fundamental presumption of the FOI laws and that presumption is one of disclosure.

This really is a non-issue and I fail to understand why Ministers and others seemed to be of the opinion that official information held on behalf of a public authority on an E-mail system out with that of the authority’s official E-mail system is not covered by FOI. I also fail to see why private E-mail addresses would need to be used for official government business. They can’t possibly offer the same level of security as the GSI network. I can’t imagine that Google provides the required level of security required for the processing of government business! Security issues aside, providing remote access to E-mail is not some advanced technology, plenty of private sector businesses provide remote access to not just E-mail but a whole load of systems to their employees. If working from home becomes essential for whatever reason ensuring public sector employees have access to their E-mail can’t really be considered as being beyond the capabilities of the state. A prime example being @LynnFOI who accessed her work E-mail from home on CHRISTMAS DAY to respond to someone’s FOI request!#

Anyway, make up your own mind. Is it really an “over-extension of its original intent” or just an excuse to try and restrict information access rights? I know what I think!
Bristol City Council: Being evassive?

December 23rd, 2011

In response to a request for information issued by the Council on 24 October 2011 Bristol City Council said:

We have not in the past had a system to check the identity of requesters but have now implemented a system to randomly seek proof of identity. (Emphasis added)

Section 8 of the Freedom of Information Act 2000 (FOI Act) does require that an applicant provide their real name when making a request for information. However, nothing within the legislation actually provides that a public authority can check the identity of an applicant. Where a public authority believes that an applicant may be making their request under a pseudonym then it has become practice that rather than simply refusing the request that public authority gives the applicant an opportunity to prove their identity. After all, this is something that they would be required to do if they wished to complaint to the Information Commissioner that a public authority has failed to comply with a valid FOI request (the request not being valid if it fails to use the applicant’s real name).

There are a number of reasons why the true identity of the applicant is needed. Firstly, the authority needs to ensure that what is being made is not actually a Subject Access Request under the Data Protection Act. This requires the authority to follow a separate framework for providing the information and the FOI Act provides an absolute exemption to a public authority where the applicant is requesting their own personal information (Section 40(1)).

There is also the question of considering whether a request is vexatious or repeated. That might be harder to do if a person is able to make applications for information under one or more pseudonyms. A public authority is not required to comply with a request for information that it deems is vexatious or repeated (Section 14). This is to try and safeguard public money. Providing answers to requests for information costs public authorities in both time and money and it is not right that they be required to comply with a request that is vexatious or one which is repeated.

The final main reason as to why it is important to know the identity of the applicant is so that it can properly apply the fees regulations. A public authority is not required to comply with a request if to do so would exceed the appropriate fee (either £450 or £600 depending on the authority). Again, this is about safeguarding public resources. The providing of information to an applicant should not cause a significant drain on the public authority’s resources. Public Authorities exist to provide specific functions and their finances are better spent on providing those functions to the public (although I do believe that FOI is necessary and essential, it’s reasonable that the costs of FOI are limited). Public authorities can group similar requests by an applicant made together and if those requests as a whole would exceed the appropriate cost limit then they can all be refused on costs grounds. This is to prevent applicants simply splitting their requests up into smaller chunks in a bid to avoid the cost limitations. If an applicant is able to make these smaller requests under various pseudonyms it would defeat the purpose of having the fee limit and the aggregation provisions in the first place.

However, at the same time a public authority is supposed to treat a request for information in a way that is blind to the applicant and to the motives of the applicant for requesting the information. While not expressly stated in the legislation the lack of any reference to being able to refuse on the grounds of who made or why the request was made (beyond vexatious and repeated requests) has been taken to mean that the authorities should be blind to these matters when processing the request.

So, what does all this have to do with the quote I mentioned at the start of this article? Well, quite simply Bristol City Council has said that it has introduced a process of randomly checking the identities of FOI applicants. This would go against what the Information Commissioner and the Tribunal considers to be the appropriate way to deal with an FOI request. It is not being blind to the applicant or their motives and without having a good reason for requesting proof of identity the Council could land itself in a spot of bother if it fails to respond to what is a valid request for information within the statutory framework. There are strict time limits laid out in the FOI Act as to when an applicant must receive a substantive response to their request for information (including a notice refusing the request).

When I telephoned the Council in October to confirm that they really did mean a random check I was told that this was in fact their policy. I then spoke with the Information Commissioner’s Office who said that if this did turn out to be the case that they would be concerned about such a policy.

I made an Information request pursuant Section 1(1) of the FOI Act (this is what gives people the right to approach a public authority for information). The Council responded to the request for information on 23 November 2011. The Council’s response did not actually comply with the requirements of the FOI Act. It took the request as being “what is the Council’s policy on this” rather than actually supplying the content of the policy documents as requested by me (among other things). The Council failed to tell me whether it held the information and to provide it to me (or a notice that it was exempt), but instead sent me to its website which contained a short paragraph on checking the identity.

As the Council had failed to respond to the request for information I sought from the Council a review into its response. The FOI Act doesn’t set out any statutory timescales for responding to such requests (unlike the Scottish FOI Act), however the Information Commissioner has issued guidance on this matter to fill the gap left by it not being provided for in the legislation. The Information Commissioner’s guidance states that:

[T]he Commissioner considers that a reasonable time for completing an internal review is 20 working days from the date of the request for review. There may be a small number of cases which involve exceptional circumstances where it may be reasonable to take longer. In those circumstances, the public authority should, as a matter of good practice, notify the requester and explain why more time is needed.

In our view, in no case should the total time taken exceed 40 working days.

In my request for review I made reference to the Information Commissioner’s guidance and let the public authority know that I would contact them if I hadn’t received a response from them (whether that be a full response or notification that it had not been possible to conduct a review) by a certain date. This date represented the twentieth working day following receipt. The Council didn’t respond and so I have written to them prompting them and advising them that if no response is forthcoming by a specified date that I would exercise my rights under Section 50 of the FOI Act and apply for a decision from the Information Commissioner to the effect that they failed to comply with the request for information.

Are Bristol City Council being evasive? If they are why would this be? One can only speculate, but it would seem rather odd that the request could not be answered fully within the twenty working days permitted by the request (subject to any public interest considerations). The bulk of the request related to policy documents presumably held by their FOI Officer given it relates to their FOI policy. The remained related to communications either internally or with the ICO when developing the policy.

It will be interesting to see what comes back from Bristol City Council in terms of their policy on identity checking. Their failure to answer the request the first time and the delay without explanation in conducting the internal review does put more weight to the “being evasive” category. What exactly does Bristol City Council have to hide?

The request made and all associated written correspondence can be viewed here. Certainly worth keeping an eye on to see what happens.
OSIC Decision: Mr David Rule and the Scottish Ministers

December 21st, 2011

This decision Notice issued by the Office of the Scottish Information Commissioner considers whether the Scottish Ministers had failed to comply Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA).

The applicant wrote to the Scottish Ministers requesting from the First Minister’s Office all information held within correspondence with named individuals. The Scottish Ministers did not respond to the applicant’s request and that applicant requested an internal review be carried out under Section 20 of FOISA. The Ministers did not respond to this request and the applicant applied to the Scottish Information Commissioner for a decision in terms of Section 47(1) of FOISA. When the Ministers were notified of this application they wrote to the applicant advising them of the outcome of their review. In that decision the Ministers took the view that the request was not valid in terms of Section 8 of FOISA. In doing so they relied upon the judgment of the Court of Session in Glasgow City Council and Dundee City Council v Scottish Information Commissioner. This decision clarified that information requests must describe the information sought.

Unhappy with the Scottish Ministers’ decision the applicant applied to the Commissioner again in terms of Section 47(1) for a decision. The Commissioner’s decision notice has a number of interesting things contained in it.

In paragraph 9 of the decision notice it states that the Commissioner is satisfied that it would be appropriate to treat the applicant’s E-mail requesting the information not as one single request for information, but rather 19 separate requests for information (one for correspondence between each of the named individuals).

The Decision Notice states in paragraph 9:

[I]t would be wholly artificial (and thus unreasonable) to do otherwise. If valid, each of these is quite capable of standing alone and is in no way dependent on any of the others.

FOISA sets out what is required in order to make a request for information a valid request for information. This can be found with s.8 of FOISA. The request must contain the applicant’s name, an address for correspondence and describe the information sought. The Ministers’ submissions to the Commissioner focussed entirely on s.8(1)(c) of FOISA which provides that the request must describe the information sought.

The Minister’s argued in their submissions to the Commissioner that the applicant’s request was a general request for information held on specific named individuals and did not clearly identify the information that he was seeking. The Ministers’ contended in their submissions that applying s.8(1)(c) of FOISA and the decision of the Court of Session in the Glasgow City Council case that the applicant’s requests were not valid.

The Minister’s contended that the applicant’s use of the phrase “information contained in correspondence” was too vague and was an insufficient description of the information sought. The Minister’s further argued that it provided no assistance to them in locating the information held which fell within the scope of the request.

The Ministers’ further submitted that the request gave insufficient information as to allow them to identify the individuals to whom the applicant was referring. They utilised Linkedin to demonstrate to the Commissioner the number of people as to whom the applicant could have been referring.

In paragraph 15 of the Decision Notice the Commissioner found that the applicant sought all information contained within a specific type of document (i.e. correspondence). The Decision Notice states at paragraph 15 that:

The Commissioner finds it reasonably clear that the applicant is seeking the information recorded in that type of document. The word “correspondence” provides specification about the type of communication.

The commissioner did not accept the Ministers’ argument that the request must stipulate the subject matter of the correspondence in order to satisfy the requirements of s.8(1)(c). The Commissioner felt that to do so would run contrary to the overall aim of FOISA, which is to provide openness with the absolute minimum number of formal requirements in order to achieve that aim (paragraph 16).

The Commissioner also noted that some of the names on the list of persons supplied by the applicant were prominent people in the public eye. This was eventually accepted by the Scottish Ministers. However, they maintained that some of the names on the list were “exceedingly common and could refer to private individuals or officials in the Scottish Government with those names” (Paragraph 17).

In Paragraph 18 the Commissioner applied a “common sense” approach and took the view that it would be appropriate to interpret the names by way of a common characteristic (i.e. that they were all people of note). The Commissioner commented that:

It does not appear reasonable to start from the premise that the applicant has constructed a basically random list of subjects, some of whom are public figures and some of whom are not.

The Commissioner referred to the provisions in s.1(3) which relate to seeking clarification when considering what the case might be if there were more than one person with the same name who was of prominence.

The Commissioner found that the requests as submitted by the applicant were valid in terms of s.8(1)(c) of FOISA and required that the Scottish Ministers to review their handling of the requests and notify the applicant of the outcome of that review.

The Commissioner went on to make a number of findings in relation to technical aspects of the handling of the request which relate to the timescales set out in ss. 10(1) and 21(1) of FOISA.

Comment

It does seem rather odd that the Scottish Ministers took the view that the request by the applicant was not valid. It seems quite clear from the Commissioner’s explanation of the request that it was clear as to what the applicant was seeking. If the Ministers had been in any doubt as to which particular individual with a name listed within the applicant’s request that the request related to then it was open for them to use the mechanism under s.1(3) of FOISA. This would have allowed the Ministers to go back to the applicant and ask for further information in order to help them locate what the applicant was looking for.

What is particularly interesting about this Decision Notice was the view that the Commissioner took in relation to the number of requests made. The Commissioner found that the E-mail sent by the applicant to the Scottish Government was in fact making a separate request for information for each individual listed. This decision might well assist the applicant in terms of the fees regulations. Under FOISA no public authority has to comply with a request that is estimated to cost more than £600 to process. Unlike under the Freedom of Information Act 2000 this £600 applies to all public authorities covered by FOISA and includes the time taken to redact information from documents that is not to be disclosed.

The requests are sufficiently different that it would be hard for the Scottish Ministers to argue that they should be aggregated together whereas if the request was to be considered as one single request rather than 19 separate requests it is quite likely that it would exceed the £600 limit in terms of costs.

The Commissioner also took the opportunity to clarify that FOISA does not entitle people to request copies of documents (a point brought out in the Glasgow City Council and Dundee City Council case), but that any request for documents should be taken to mean the information contained within a document.

The Commissioner’s decision seems entirely reasonable. It will, I’m sure, provide some clarity for the public and public authorities as to what approach should be taken when a list of names is presented within a request for information under FOISA. Of course, it is far more sensible to take the time to specify clearly in the request exactly what information is sought. Taking an extra few minutes to “flesh out” the request to provide as much clarity as possible can save a lot of time in the long term. Applying to the Commissioner for a decision is a lengthy process. In this instance the Decision Notice was issued more than six months after the request was submitted.

The Commissioner’s Decision can be read in full by clicking below:

Decision 245/2011 Mr David Rule and the Scottish Ministers
FOI: Glasgow Police Station Duty Scheme

November 28th, 2011

Following the coming into force of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 the Scottish Legal Aid Board (SLAB) devised a controversial police station duty scheme.

At the time it was heavily discussed and debated. Solicitors were complaining that they were left largely n the dark as to how the scheme was operating and even today controversies still remain. SLAB were unwilling to provide details of the scheme including the names of solicitors and firms registered on the scheme.

Many attempts were made through the Freedom of Information provisions and also out with those provisions to have information released into the public domain about the operation of the scheme. One person took SLAB all the way to the Scottish Information Commissioner. Today the Commissioner’s Office has published the decision notice issued dated 21 November 2011 finding in SLABs favour.

This is hardly surprising because of the legal position SLAB finds itself in when it comes to FOI. Under Section 26 of the Freedom of Information (Scotland) Act 2002 (FOISA) any information held by a Scottish public authority is exempt if its disclosure is prohibited by any other enactment. Under Section 34 of the Legal Aid (Scotland) Act 1986 any information that is furnished to the Board pursuant to SLAB for the purposes of the Legal Aid (Scotland) Act 1986 is exempt from disclosure without the consent of the person(s) who provided SLAB with the information. Section 26 of the FOISA is an absolute exemption (see Section 2(2)(a) of the Act) and as such there is no requirement to consider whether the disclosure is in the public interest or not.

The effect of Section 34 of the Legal Aid (Scotland) Act 1986 coupled with Section 26 of FOISA means that almost anything held by SLAB would appear to be exempt from disclosure under FOISA. The Legal Aid (Scotland) Act 1986 was obviously passed before the concept of there being a right to access information held by a public authority gained a wide acceptance. It might, therefore, be worthwhile that any future changes to FOISA consider such provisions.

The Commissioner’s decision can be read in full here
I’m sorry, we can’t confirm or deny that

November 11th, 2011

I was having a look at the list of current applications currently before the Scottish Information Commissioner for a decision pursuant to Section 47(1) of the Freedom of Information (Scotland) Act 2002. One application in particular caught my attention, probably due to its constitutional significance.

Application 201101968 concerns the Scottish Government’s use of Section 18 of the Freedom of Information (Scotland) Act 2002 in relation to a request for information seeking independent legal advice held by the Scottish Ministers on an independent Scotland’s membership of the EU. All I or any other member of the public has to go on at this stage is simply the information contained within the list of current applications (more could be made public by way of a request for information to the Office of the Scottish Information Commissioner), but it will be interesting to read the Commissioner’s Decision Notice.

Section 1(1) of the Freedom of Information (Scotland) Act 2002 requires public authorities to confirm in writing to an applicant for information whether the authority holds any information falling within the scope of the applicant’s request and to communicate any information not exempt under the Act to the applicant. However, Section 18 provides that a public authority can refuse to confirm or deny whether it holds the information sought where the information would be exempt under the Act and to confirm or deny its existence would be contrary to the public interest.

It seems odd that the Scottish Ministers feel that it is contrary to the public interest to confirm or deny whether it holds such information (it’s almost guaranteed to be exempt as it comprises legal advice which is ordinarily exempt from disclosure). In fact it would be rather worrying if the Scottish Ministers had not obtained such legal advice.

Of course, it is hard to make any judgment on the situation without the benefit of having seen the actual request submitted and the arguments advanced by the Scottish Ministers in support of utilising Section 18 of the Act. Why would the Ministers feel that the public interest lies in not even confirming whether it has sought legal advice on this matter? Given the Scottish Minister’s preferred option of an independent Scotland in the European Union and its frequent and continued assertions as to Scotland’s legal status over this matter (including that of joining the Euro) some would say that it indicates the Ministers have sought legal advice. Whether any advice they may or may not have sought supports their position is something that the public are never likely to know unless the Ministers decide to publish it (or the Scottish Information commissioner takes a very rare decision to order its release in response to a FOI request.

I will certainly be watching this request with great interest and look forward to reading the Commissioner’s Decision Notice when it is eventually released (assuming some compromise isn’t reached between the applicant and the Ministers during the investigation in which case a Decision Notice is unlikely). Interesting times indeed.
Is there really a gap in the law?

November 9th, 2011

One of the Scottish Government’s main reasons for introducing the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill is that there is allegedly a gap in the current law to deal with these offences. It is undeniable that Breach of the Peace has continued to be re-defined in a way that excludes a lot of conduct from it. However, in 2010 the SNP Government introduced a new offence of Threatening or Abusive Behaviour (Criminal Justice and Licencing (Scotland) Act 2010, s.38) to deal with these cases.

This new offence has been in force for little over one year now and the Scottish Government are continuing to maintain that the law is in adequate. If indeed the law is inadequate then the question as to why they did not do more in the last Parliament to deal with this problem needs answered. However, it doesn’t actually appear that there is a gap in the law. Earlier this year I published on here figures that had been released by the Crown Office and Procurator Fiscal Service (COPFS) in answer to an FOI request I had made on the s.38 offence. I have since followed that up with another request seeking more detailed figures and today a response was sent to me by COPFS.

This second FOI request related to s.38 offences that had been aggravated by religious prejudice pursuant to section 74 of the Criminal Justice (Scotland) Act 2003. The figures released today by COPFS cover the period since the offence came into force until 31 October 2011.

COPFS had received reports from the police containing 331 charges under s.38 where the alleged offence was said to be aggravated by religious prejudice. Of those 331 charges, 309 were prosecuted (with decisions on 4 charges still to be taken).

Of those prosecuted 16 were prosecuted on indictment with seven of those resulting in a conviction and a further seven still to come to trial. Out of the 293 charges prosecuted summarily, 192 resulted in a conviction and 82 are still to come to trial.

The COPFS were unable to advise how many of those offences related to football as the database does not record that data.

This suggests that the existing provisions are being utilised by the police and there have been a significant number of successful convictions for threatening or abusive behaviour that has been aggravated by religious prejudice. The fact that COPFS cannot confirm how many offences have been committed in relation to football is an important gap in the data and is something that should really be explored before the Scottish Government declare Scots law to have a gap that needs fixed urgently by legislation. The fact remains that the Scottish Government are making assertions that simply cannot be supported by evidence and where evidence does come to light it suggests that the Government’s position is even less credible than it was prior to the new evidence coming to light.

The Scottish Government really ought to scrap this Bill and look at the issues properly. Assessing the evidence is an important aspect of deciding on an appropriate way forward and it would appear that the Scottish Government have failed to properly assess the evidence.
COPFS and FOI: review to be carried out

September 29th, 2011

The Crown Office and Procurator Fiscal Service (COPFS) have confirmed that they will conduct what is essentialy a second internal review into a wholly unsatsifactory response to a request for infromation which had no lawful route of being appealed based on the way that the Freedom of Information (Scotland) Act 2002.

The background to this story and request can be read here
Right to Know Day

September 29th, 2011
Wednesday 28 September 2011 was International Right to Know Day. On 1 January 2005 a general right to access information held by a wide range of public bodies came into force. This general right is enshrined in a number of pieces of both primary and secondary legislation and it is an important right in the armoury of the people to hold those in power to account and one to be celebrated.

The move internationally is certainly towards a position of greater transparency in government and public life. The FOI legislation in the UK has been used to effect major changes in the way politics has been done. One such example of where FOI was used to uncover immoral practices was in the MPs expenses scandal. It is easy to overlook that had it not been for a simple FOI request that the scale of MPs claiming expenses for things they really ought to have not. This scandal has resulted in members of the House of Lords and former MPs spending time in prison for unlawful practices uncovered through the examination of FOI disclosures and has resulted in greater transparency in expenses across the public sector generally. This is just one example of many where FOI has been used as a force for good.

There have been the rather strange requests as well which cast FOI in a bad light and show that it can be abused by people. There have been requests for information relating to plans held by the public authority in question to deal with a Zombie invasion. While, the person behind the original request might well have had a legitimate personal fear about such an invasion and wanted to know that the authority was ready to deal with such an eventuality it did result in a large number of “copycat” requests where it was clear the request was not really serious at all. However, there does exist within the FOI legislation ways to deal with such requests so as not to allow them to cause a drain on public resources.

On the whole it is hard to argue that FOI is a bad thing or that it should be scrapped. Yesterday was a good time to remind people of their information access rights. Your rights to access information held by public authorities in the UK can be found in:
The all provide different rights to access different information and all have a presumption of disclosure written into them. This means that the authority has to show justifiable grounds, as permitted in the relevant legislation, as to why it is not disclosing the information requested by you.

Making requests under these pieces of legislation is easy and is made even easier through sites like What Do They Know (WDTK). However, it is important to remember that rights do come with responsibilities. The single most important responsibility that comes along with these rights is to use them sensibly and not to abuse them.

Always do your research first! Is the information you requested already in the public domain? If it is and you can be expected to access it reasonably then the public authority is not required to provide it to you through the legislation. By ensuring you do your research first you save valuable time and public money by not submitting requests unnecessarily. Although the authority is not obliged to provide information already available publically to you they are still required to respond telling you this. It does take time and money to respond to such requests.

Always look at the authority’s publication scheme before making a request. The scheme may tell you how you can get the information you want or where you can find it. Again, this saves making a pointless request and saves on both time and public money.

Don’t just fire your request off as soon as you have the idea. Think about it carefully. Make sure you draft the request in a way that makes it clear what information you want from the public authority. This avoids having your request refused on cost grounds, makes sure you get the information you actually want and also means you won’t receive lots of information you don’t really want. Requests that are poorly drafted and too wide may result in delays as the authority seeks clarification from you or in the request being refused as it is too costly to comply with. Maybe try drafting your request and then going back to it the next day. Read it through with fresh eyes and see if you could tidy it up before sending it. Also think about who you are sending the request to. Are they really the most likely authority to hold the information? Don’t just send it off to everyone who might hold it. This causes a drain on public resources. Of course it might be perfectly legitimate to make the same or a similar request to multiple public authorities – just don’t do it for the sake of doing it.

Contacting the authority before submitting it might save you some time. FOI Officers are generally very helpful and experienced. They might be able to tell you before you make your request that they’re not the best people to ask and who might be instead or might even know that the information you want is to be published soon.

Another good thing to do is to look at disclosure logs and WDTK. While not every authority operates a disclosure log and not all requests appear on WDTK you might find the information you are seeking has already been published by the authority through one of these two sources. This saves you the 20 day wait for a response and the authority from having to respond to your request. Again, saving time and public money! It may be the case that some of the information you want appears in one of these two locations and by locating this it means you reduce the drain on resources by the authority having to consider whether it is required to disclose it again to you.

If you need advice then the Office Scottish Information Commissioner and the Information Commissioner’s Office both operate advice services and they can advise you on all aspects of FOI from how to make a valid request to what to do next. The staff at both organisations are very helpful and knowledgeable. If they don’t know the answer or have it to hand they’ll go away and find it for you always getting back to you as quickly as possible.

You should contact the Scottish Information Commissioner about requests made under the following pieces of legislation:
- Freedom of Information (Scotland) Act 2002
- Environmental Information (Scotland) Regulations 2004
The Information Commissioner’s Office can help you with queries about requests made under the following pieces of legislation:
- Data Protection Act 1998
- Freedom of Information Act 2000
- Environmental Information Regulations 2004
The respective websites of these organisations are full of useful information and always worth a visit if you need to know something. You’ll find all sorts of guidance documents, advice pages and information that will help you at all stages in your request from making the request initially to applying to the Information Commissioners for a decision where necessary.

Please do use your information access rights, but use them responsibly and don’t abuse them.

Happy (belated) International right to know day!