Alistair Sloan, Advocate

Pro-active disclosure and FOI

December 7th, 2013

It was today reported on the BBC News website that the Chief Executive of NHS Dumfries and Galloway has come out and said that his Board’s FOI initiative had been a complete failure. NHS Dumfries and Galloway had, in a bid to cut the number of Freedom of Information requests they received, pro-actively published information and statistics. During the period there had been a 25% increase in the number of requests received.

Before addressing the substantive issue, I will address a couple of questions that I was left with after reading the article. Firstly, I was left wondering how the Board had decided what information and statistics they were going to publish (it’s all very well publishing information and statistics, but if it’s not the information and statistics that people are interested in it’s not really going to ever have the desired effect). I was also left wondering how many of the requests received during that period were for information that had already been published. That is also relevant because if there was a large number of requests for already published information that would indicate a problem with the requesters and not the Board.

Let me take the latter of the two questions first. FOI is not, and should never be seen as, a way of getting public authorities to do your research for you. Indeed, there is an exemption with both the Scottish and UK legislation that exempts information that is otherwise available to the applicant. It is incumbent upon individuals to look for the information they want before putting in their request. If they did that they might save themselves some time (public authorities essentially have a month to respond to your request) and would also save the taxpayer money. If a large number of requests received in period of observation were for information already published by the Board then the number of requests could be reduced if people were (a) more aware that the information was pro-actively published and (b) more responsible in their use of FOI.

On the first question that the article left me with, if you’re not publishing the information that people want then people are still going to write to you and request it. What analysis was undertaken by the Board before deciding what to pro-actively publish and what not to pro-actively publish? I don’t think I need to say any more on that point here.

I think that public authorities who are seeking to pro-actively publish information to reduce the burden of FOI on them must consider a few things. Firstly, what is the point of FOI? Simply, put FOI is about putting the citizen in charge of what information they receive. Of course, that right is qualified and certain information can be withheld by law. However, it is no longer the case that the citizen only ever receives the information that public authorities want to tell them. Unless you are completely open there is always the chance that information you decide not to pro-actively publish is the information that someone would like and that will result in an FOI request for that information. Secondly, I think that they need to address their views towards openness. Public authorities should be pro-actively publishing information because they value being open and allowing the public to properly assess what they are doing; not because it might save some money on the balance sheet.

I do not think it unreasonable for public authority’s to assume that by pro-actively publishing information that they will reduce the number of FOI requests that they receive. It follows that if requesters search for the information before requesting it, they will locate it without the need to request information and as such will not make an FOI request for it. However, there is the possibility that releasing information will generate further FOI requests. Releasing information might generate requests for other connected information that is not published, or for more detailed information than is published. For example, publishing the agenda and/or minutes of a meeting might generate requests for information in documents referred to within the meeting minutes. Public authorities could take a decision at the time as to whether they are going to pro-actively publish those documents or whether the potential saving by pro-actively publishing them doesn’t negate the cost of considering them for release on the basis that they might be requested in an FOI request. It is a judgement call for the public authority in question.

Lynn Wyeth (@LynnFOI), an FOI Officer, on Twitter made this point in a tweet that she tweeted. Her own experience was that pro-active publication generates more follow-on requests. However, she also made an interesting point when she tweeted asking “How do you know how many FOI requests you haven’t received, if you haven’t received them?” There is of course no way for NHS Dumfries and Galloway to know how many requests were prevented because of their pro-active disclosures. The simple fact is that it cannot. It can look at the information it does have though and question what it tells them. For example, if the requests it did receive included a number of requests for information which was already published, it could consider how it could better inform people of what information it is pro-actively publishing. You will never eliminate requests for information that is already available because you will never eliminate lazy requesters, or those without the technical ability to locate information which isn’t obviously available.

Tim Turner (@tim2040) tweeted that pro-active publication should be done “in the public interest with no expectation of a knock-on effect for FOI”. I tend to agree with him, but as already stated I don’t think it unreasonable for the assumption to be considered. Pro-active publication is a good thing, but it should be seen as an addition to FOI and not a replacement for it. FOI is an important right because it allows citizens to request the information that they want, not just to receive what an authority wants them to see. Pro-active disclosure is only one aspect of transparency and accountability; that fact should not be lost sight of.
Your Right to Know: International Right to Know Day 2013

September 28th, 2013

Today (28 September) is International Right to Know Day, it is a day which highlights your right to know and obtain official information.

In the UK the Freedom of Information Act 2000, Freedom of Information (Scotland) Act 2002, the Environmental Information Regulations 2004 and the Environmental Information (Scotland) Regulations 2004 give people anywhere in the world the right to be given information held by public authorities in the UK, subject to certain exemptions.

It is possible to request information from the UK and devolved Governments, from the police, local councils, the NHS, the prison authorities, the prosecution authorities, the court services and a whole range of other public bodies. Not only is it possible to request it, but you have the right to be given the information where it is not exempt from disclosure by one of the specified exemptions (or in the case of Environmental Information, exceptions) in the legislative provisions.

Even if an authority states that information is exempt, you have the right to ask them to think again and if they still refuse to give you the information you have the right to ask the relevant Information Commissioner to investigate and decide whether the public authority was right.

The Right to Know is an important right, it helps to hold those who make decisions and spend public money accountable for the decisions that they make and the money that they spend. It can aid the public’s understanding of the decision making process and can also help public authorities to see where they could be doing things better.

However, as it is an important right it must be used properly. Using it to annoy or upset individuals in a public authority, to carry on a personal dispute with a public authority or using it with no real purpose behind receiving the information isn’t helpful. It costs money to process a request and it does take public authority staff away from delivering their core function, which will have an impact on the public authority. Inappropriate use of the Act could lead to important information access rights being lost or reduced and that would be bad for everyone.

Over the years the way in which public services have been delivered is having an impact on the ability of the public to properly hold those responsible for making decisions and spending public money to account. This has resulted in an effective reduction in the information access rights that people have.

Freedom of Information is important. However, Government’s should be a lot more proactive in their release of information. There are many benefits to this, not least if it’s already in the public domain somebody doesn’t have to request it through information access rights.

I’m using International Right to Know day to write to my elected representatives reminding them of the importance of FOI, and to ask them to ensure that they press the Government to extend and protect FOI as well as pressing the Government to be more open and pro-active with information in the first place.

Useful Resources:
UK Information Commissioner – http://www.ico.org.uk
Scottish Information Commissioner – http://www.itspublicknowledge.info
WhatDoTheyKnow – http://www.whatdotheyknow.com
Freedom of Information Act 2000 – http://www.legislation.gov.uk/ukpga/2000/36/contents
Environmental Information Regulations 2004 – http://www.legislation.gov.uk/uksi/2004/3391/contents/made
Freedom of Information (Scotland) Act 2002 – http://www.legislation.gov.uk/asp/2002/13/contents
Environmental Information (Scotland) Regulations 2004 – http://www.legislation.gov.uk/ssi/2004/520/contents/made
Is it the case that the complainer clearly lied?

September 11th, 2013
In Scotland, there can be three conclusions to a criminal trial: (1) the accused is found guilty, (2) the accused is found not proven and (3) the accused is found not guilty. This seems fairly straight forward, (1) means they did it (2) means nobody is sure whether they did it and (3) means they didn’t do it. Only that’s not really how it works; it is a great deal more complicated than this.

Let’s start with numbers (2) and (3), although they look different they are identical in law: the Crown has failed to prove its case against the accused beyond reasonable doubt, and as such the accused is acquitted. Historically, this meant that the accused could never be tried again for the same crime. However, following fairly recent changes to the ancient double jeopardy rule (the rule that said no person may be tried twice for the same crime), it is now possible for the Crown to have a second go at prosecuting an individual for a crime for which they have already been acquitted in a set of strict and limited circumstances. On the whole though, an acquittal means that the person leaves court innocent in the eyes of the law (exactly how they arrived at court) and free from the threat of a further prosecution in connection with the same matter.

Our system is extremely simple in respect of a person’s standing in law when accused of a crime: all persons are presumed innocent until found guilty in a Court of law. That finding of guilt may be as a result of the accused’s own guilty plea, or it may be following a trial. An acquittal following a trial does not necessarily mean that the complainer has told lies or has not been the victim of a crime. What it means is that the Crown failed to put before the Court (a Justice of the Peace, Sheriff or Jury depending on the forum in which the trial is held) to convince the Court that the accused is guilty of the charges alleged by the Crown. It is for the Crown to prove the charge, and to prove the charge that it alleges. Certain aspects of charges can be deleted if the Crown has failed to prove them, but has overall proved the offence. For example, an ‘aggravation’ can be deleted from the charge where the evidence does not support the aggravation, but where it supports the basic offence. Other things can be deleted from a charge as well. For example, if the Crown alleges assault to severe injury and permanent disfigurement, but the evidence only proved assault to severe injury, the permanent disfigurement aspect to the charge could be deleted. Another example could be where the charge alleges that the accused assaulted the complainer by punching and kicking the complainer, but the evidence only proved that the accused punched, rather than punched and kicked, the word ‘kicked’ could be deleted from the charge.

These deletions can be made by the Crown itself, or they can be made by the finders of fact (e.g. a jury could remove an aggravation from the charge where it finds the basic offence proved, but not the aggravation alleged). The onus is on the Crown to prove the essential elements of the case though. Where it fails to satisfy the finder of fact (in the case of a jury trial that would be the jury to a majority of 8 to 7) that the accused committed the crime alleged, the accused is entitled to be acquitted; he or she is free to go with the law viewing them to be innocent.

Of course, not every single case that results in an acquittal has arisen out of the lies of the complainer. We have a system that requires the Crown to bring sufficient evidence before the Court to prove beyond all reasonable doubt that the accused committed the crime alleged. The standard of proof is extremely high and the burden largely falls on the Crown, and for very good reason. A finding of guilt could allow the State to deprive an individual of their liberty for a very long time. Furthermore the state has far more resources at its disposal when bringing a prosecution against an individual.

In recognising that some guilty people do walk away from court, it is not an invitation to treat those who are acquitted with suspicion. The law is clear: they were innocent before the trial and they remain so after the trial. There is no presumption of guilt and nor should there be. It is an effect of our system of justice that some guilty people will walk free after a trial, just as some innocent people will be convicted. Both are unfortunate, but doing as much as possible to avoid the latter results in the former.

There certainly should not be a jump to the conclusion that the complainer(s) in a case where the accused is acquitted have perjured themselves. Where there is evidence that this is the case it should, of course, be investigated and a prosecution brought where it is in the public interest to do so. However,due process has to be followed just as much in that case as in the case that went before it.

In essence, while an acquittal does equal innocence in the eyes of the law; it is realistic to accept that it does not always equal what might be termed as ‘true innocence’. However, whether the person is innocent or not is quite frankly irrelevant beyond the trial. In legal terms they are innocent and as a consequence society has an obligation to judge them as innocent, and to treat them as such. The court that heard the case and acquitted the accused heard all of the available evidence and decided that it was insufficient to allow for a conviction. The accused is entitled to put the episode behind them and to move on with their life. Equally, complainers are entitled to support to move on from the crime of which they have been a victim. In a lot of cases the fact that they have been the victim of a crime is not in doubt, the police and the Crown have just been unable to show that it was the accused that perpetrated the crime (and it may very well be the case that it was someone other than the accused that committed the crime, hence the right of the accused to have society treat them as innocent).

I hope that this makes sense. If not, here is what I have been trying to say distilled down into five small points:
1. When a person is acquitted it does not automatically follow that the complainer wasn’t telling the truth
2. Equally, it does not follow that simply because the complainer may not have been lying that the accused got away with their crimes.
3. The acquitted accused is entitled to move on from the episode and obtain support as required.
4. The complainer is also entitled to move on from the episode and obtain support as required
5. Where there is evidence to support that the complainer wasn’t telling the truth, it should be investigated and prosecuted where such a prosecution would be in the public interest.
Transparency in the reporting of FOI responses?

August 19th, 2013

Today I noticed a line in a BBC News report which I see fairly frequently in news reports that have come from FOI requests and it made me think about whether the reporting is fair on the public authorities concerned.

In this instance the Liberal Democrats had requested information from local councils in Scotland concerning racist incidents recoded at schools. The figures used in the report were based on the responses of three-quarters of the local authorities in Scotland. The BBC report included the wording:

“The party submitted Freedom of Information (FOI) requests to local councils and received responses from three-quarters of them.”

I don’t consider such wording to be fair to the quarter of local authorities who, by implication, haven’t responded. It implies that a quarter of local authorities in Scotland have failed to respond, and as such are failing to comply with the law. Section 10(1) of the Freedom of Information (Scotland) Act 2002 requires public authorities to respond to requests promptly, and in any even no later than the twentieth working day following receipt. The only exception is where the request (or a similar one) from the same requester has been judged as vexatious and it would be unreasonable for the authority to issue another notice. In such cases the public authority is not obliged to issue a further refusal notice.

Sometimes public authorities fail to comply with section 10(1) for a variety of reasons. However, I find it hard to believe that a quarter of Scotland’s local authorities failed to do so in respect of the same request (although some may have). That leaves us with a number of explanations as to why there are only figures for 3/4 Scottish local authorities in this case.

1) The Lib Dems released the figures before the 20 working days were up. Some public authorities (including some local authorities) are very good at responding in a time frame much quicker than permitted by law (personally the quickest I ever received a full substantive response from a local authority was one working day – and it included the information I’d requested in full). This seems unlikely though.

2) That some of the local authorities refused the request. This could have been for a variety of reasons: they didn’t hold the information requested, it would have exceeded the appropriate limit or it applied one of the exemptions to the information permitted by the Act).

The second reason above seems the most likely and this is very different from the implication given by the BBC in its coverage of the story. There would have been a response because FOISA requires public authorities to issue refusal notices in all the cases described in number 2. The response may not have included any disclosure of information, but that’s not the same as receiving no response.

I said at the outset of this post that this phrase is one that is heard or seen often in the reporting of stories which have originated out of FOI. It begs the question: Is this fair reporting? I would have to say that it would appear not to be; implying authorities are not complying with the law without providing the evidence to back it up isn’t very fair. Who is to blame though? The news outlet making the report or the requestor? In some cases the two will be the same.

So should reporting of the results of FOI requests be more transparent?
UK Supreme Court: South Lanarkshire Council v Scottish Information Commissioner

July 30th, 2013

On 8 July 2013 the United Kingdom Supreme Court heard its first appeal in a Freedom of Information case under the Freedom of Information (Scotland) Act 2002 since the functions of the Law Lords in the House of Lords transferred to the Supreme Court. The case concerned the appeal by South Lanarkshire Council agains a decision of the Inner House of the Court of Session. That appeal was brought by South Lanarkshire Council against decision notice 056/2011 issued by the Scottish Information Commissioner. The UK Supreme Court (Lady Hale sitting with Lords Kerr, Wilson, Reed and Carnworth) issued its judgment dismissing the appeal on 29 July 2013.

In Decision 056/2011 the Scottish Information Commissioner had found that South Lanarkshire Council had not been enetitled to withhold information as to the number of persons at specific points on the Council’s pay spine under section 38 of the Freedom of Information (Scotland) Act 2002. I wrote about this case when the Inner House issued its decision (also dismissing the appeal by South Lanarkshire Council), you can find out more about the case generally (and the Court of Session’s opinion) in that post.

The case is an important one for information law as it provides some important guidance on the tension between the Freedom of Information (Scotland) Act 2002 and the Data Protection Act 1998 (specifically, condition 6 of Schedule 2). It is clear from this case and others (such as Common Services Agency v Scottish Information Commissioner [2008] UKHL 47, 2008 SC (HL) 184) that there is certainly no presumption in favour of Freedom of Information over the protections in the Data Protection Act 1998. Indeed, reading the legislation gives the opposite impression. The protections for personal data in the Freedom of Information (Scotland) Act 2002 are absolute (i.e. once they apply, that is the end of the matter).

The first data protection principle in Schedule 1 to the Data Protection Act 1998 requires that a data controller shall process personal data only in a way that is fair and lawful. The Act goes on to provide that personal data cannot be processed unless at least one of the conditions in Schedule 2 are met. The case at had concerned condition 6 in schedule 2 which permits the processing of personal data where it is necessray for the legitimate interests of the data controller or any third party. There is a qualification, in that the processing must not happen if it would be contrary to the fundamental rights of the data subject. The case centred on the correct interpretation of ‘necessary’ in condition 6 of schedule 2.

In the Supreme Court’s judgment, Lady Hale made reference to a number of decicions of the European Court of Justice which supported the view taken by the Divisional Court in Corporate Office of the House of Commons v The Information Commisisoner [2008] EWHC 1084 (Admin) that the word ‘necessary’ had to be inrepreted in light of the European Convention on Human Rights and Fundamental Freedoms 1950.

In Rechnungshof v Osterrichischer Rundfunk the European Court of Justice stated, at paragraph 68:

“the provisions of Directive 95/46, in so far as they govern the processing of personal data likely to infringe fundamental freedoms, in particular the right to privacy, must necessarily be interpreted in the light of fundamental rights, which, according to settled case law, form an integral part of the general principles of law whose observance the Court ensures.”

The ECJ held that if the national legislation was incompatable with Article 8, it was unable to satisfy the proportionality requirements in article 7(c) or (e) of the EC Directive 95/46 (to which the Data Protection Act 1998 gives effect to in the United Kingdom).

This approach was followed by the ECJ in Huber v Bundesrepublik Deutschland, and so in order to be compatable with the proportionality requirements in the Data Protection Directive, the processing must be compatale with Article 8 of the European Convention on Human Rights and Fundemantal Freedoms.

Lady Hale observed at paragraph 26 that the information which Mr Irvine had requested would not allow him, or anyone else, to identify the individuals in question. As such it was “quite difficult to see why there is any interference with their right to respect for their private lives.” As such, Lady Hale stated, also at paragraoh 26, that applying article 7(f) and condition 6 in their own terms was sufficient.

Delivering a final blow to the Council, Lady Hale conculded that the Scottish Information Commissioner “had applied a test that was probably more favourable to the Council than was required and certainly no less favourable.” (Paragraph 28).

So, while it was not really necessray to consider Article 8 of the European Convention on Human Rights and Fundamental Freedoms in this case due to the data subjects not being identifiable from the information requested, it is clear from the ECJ case law in lady Hale’s judgment that Article 8 is a consideration that must be taken into consideration when considering disclosing information under the Freedom of Information (Scotland) Act 2002 which is the personal information of an identifiable data subject.
A quick defence of legal aid

July 1st, 2013

The debates around legal aid in Scotland earlier this year and in England over the last year have been characterised by a number of clear misconceptions by the public at large. There is a view that legal aid exists only to make ‘lawyers rich’ and that the vast majority of those receiving legal aid are in some way ‘undeserving’. These views are of considerable concern as the simply enable Governments in Edinburgh and London to press ahead with legal aid ‘reforms’ that will substantially damage the country.

Legal aid seems to get lumped in with job-seekers allowance, housing benefit, council tax benefit and such like (I have even, on more than one occasion, seen comparisons drawn between legal aid and the NHS); these comparisons are illogical and ignore fundamental aspects of legal aid which set it apart from any other government spending.

Equality before the law is fundamental to ensuring access to justice. The ability of all (and not just the rich) to access the legal system is of fundamental constitutional importance. The ability of individuals to defend themselves against the power of the state (whether in civil or criminal proceedings) and to challenge the state through Judicial Review are essential to our constitution. Without this ability we are not a liberal democracy. The issue of access to the law isn’t only confined to making it possible to bring or defend a claim, but it has to create a realistic ability to access the law. That means providing good quality representation (and importantly permitting those bringing or defending a claim to select their own law agent). Without client choice you are left in a situation where the State is selecting the representatives of those who it is brining a claim against or whom it is defending a claim against. If you were suing your mobile phone provider and had to use the solicitor that they selected for you, you would instantly see a conflict of interest. However, that same conflict does not seem to be as apparent when the State is involved (although it is there and just as important). There has to be equality between the parties in the legal system and for those who cannot afford to pay their own legal fees it is left to the State to ensure fair access to legal representation.

In criminal cases, it is about defending yourself against serious accusations made by the State. The consequences of conviction are, quite rightly, serious. Conviction can lead to a loss of employment and a loss of liberty. Not everyone who gets legal aid in criminal cases is guilty, a great many people are innocent and it is important that they are able to robustly challenge the State who has to prove their allegation. It’s about ensuring fairness in the system; an individual against the might of the State (with the police and a professional prosecution service for back-up) is not a fair fight. Legal representation is essential to ensure fairness (whether they are guilty or not). It might be unpopular to see guilty people get vast sums of public money to defend themselves, but isn’t that a price worth paying to ensure that we have a fair and balanced system ensuring that, as far as is possible, only the guilty are convicted?

Judicial Review is very much disliked by the Government, as should be expected. Judicial Review is the citizen challenging a decision made by the Government; it’s about ensuring that the Government only takes decisions which are legal. It is an area under attack by the Government and it is vitally important. Without effective access to judicial review, the State can go unchecked and be able to take decisions which are illegal.

The need for access to legal aid does not just extend to cases which involve the State. Individuals seeking to enforce their contractual rights against a company or gain compensation when a company is at fault and they have lost out as a result or to enforce their consumer rights need to have the ability to seek recourse in the courts when pre-litigation action fails to achieve a result. Without the ability to go to Court and seek a legally enforceable court order to enforce their rights, the rights that they have are effectively meaningless. The threat of litigation can prevent litigation. The knowing that an individual can seek recourse to the Court in order to give effect to their rights can be enough to make people comply with their obligations. Without that effective recourse, people will be free to ignore their obligations with impunity.

Legal aid and access to justice go to the very heart of our constitution and democracy. It’s not a benefit; it’s a constitutional right Legal aid is much more important and serious that housing benefit or job seekers allowance (as important as those are); it’s fundamental to our society.
Requirements for refusal under FOISA section 18: OSIC Decision 100/2013

June 10th, 2013
Today the Scottish Information Commissioner published decision 100/2013, a decision in which I was the applicant. The public authority involved was the Scottish Ministers. The decision explores some of the technical requirements around issuing a notice under section 18 of the Freedom of Information (Scotland) Act 2002.

The request

On 26 January 2012 a request for information under the Freedom of Information (Scotland) Act 2002 was submitted to the Scottish Ministers concerning an issue around the independence referendum that was, at the time, a live issue. The issue concerned whether the Scottish Parliament had the legislative competence to hold a referendum on scottish infependence. The question of legislative competence has been settled by The Scotland Act 1998 (Modification of Schedule 5) Order 2013. The request sought only the identities of those who had provided the Scottish Ministers with legal advice and not the content of that advice.

The purpose of the request was to establish whether the Ministers had received advice on this point and who was providing the Scottish Ministers with advice while considering any public information as to their specialities, thus providing some assistance in understanding the authority of the advice given.

The Minister’s response

The Ministers did not respond to the initial request for information and responded late when a request for review was submitted. Eventually, the Ministers responded refusing to confirm or deny whether they held information within the scope of the request under section 18. They did not specify which exemptions would apply if the information were held.

Section 18

Section 18 exempts public authorities from complying with the normal duty of confirming or denying whether information is held by it which falls within the scope of the request. It can only be deployed where certain exemptions could apply if the information were held, and where the public interest is in refusing to confirm or deny whether information is held (not only whether it would be in the public interest to maintain the exemption(s) cited if the information were held).

Information Notice

On 16 January 2013 it became necessary for the Scottish Information Commissioner to issue the Scottish Ministers with an information notice in order for her office’s enquiries to progress.

The Commissioner’s Decision

One of the aspects which was raised within the application for a decision from the Commissioner was whether the Minister’s response to the internal review was technically valid. It is upon this question that the Commissioner’s decision centres.

As already stated, the Scottish Ministers cited section 18, but did not state which exemption(s) they considered would apply if the information were held by them. The Minister’s argued that this was not necessary. The application for a decision argued that it was required, and the Commissioner agreed that it was required. Thus, the Commissioner found that the Ministers had not issued a valid response to the requirement for review.

Analysis

This is a purely technical decision, but it sets out clearly what public authorities must include in a section 18 notice and provides the legislative authority for that position.

Section 18(1) of FOISA specifically states that an authority can, by virtue of Section 18, give an applicant a refusal notice under section 18 where the conditions of section 18 are met; that is that if the information was held certain exemptions would apply and that it is in the public interest not to confirm or deny whether the information sought is held. Section 18(2) goes on to state that section 16(1)(a) or section 16(2) don’t apply when public authorities are issuing refusal notices under section 18.

Section 16 deals with the content of refusal notices and unless the Act specifies otherwise, all refusal notices must contain the information set out in section 16. Section 16(1)(a) requires a public authority to disclose that it holds the information sought (so logically, it is disapplied for section 18 notices as the purpose of section 18 is to neither confirm nor deny whether information sought is held). Section 16(2) is the requirement that the public authority set out in its refusal notice the public interest arguments for and against releasing information where it is applying an exemption under Part II of the Act (i.e. Sections 25-41 of FOISA).

The key part to the Commissioner’s decision is the use of the term ‘refusal notice’ within section 18 to describe the notice that it permits a public authority to issue. A section 18 notice is a refusal notice for the purposes of FOISA. Section 73 of FOISA is the interpretation section and states that “refusal notice” has the meaning given by section 16(1) (including that section as read with section 18(2)).

So, what does all of this mean? Well, simply it means that a notice issued under section 18 must comply with all the elements of section 16, except those specifically excluded by section 18(2) of FOISA. In other words, a notice under section 18 must state the following:
1. State that the public authority is applying section 18 [section 16(1)(b)]
2. State which exemptions permitted by section 18 would be permitted if the information were held [Section 16(1)(c)]
3. State why the exemption applies (unless it is otherwise apparent why the exemption applies) [section 16(1)(d)] – qualified by section 16(3)
In essence any public authority issuing a notice under section 18 of FOISA must state which exemptions permitted by section 18 it considers would apply if the information were held by it.

It would not appear though, from reading the Act (although this point is not specifically covered by the Commissioner’s decision notice), that public authorities are required to justify in their section 18 refusal notice why it is contrary to the public interest to confirm or deny whether information requested is held. However, this may well be a question that the Commissioner would put to the public authority when during any investigation, and it can be argued it would be good practice to state in any section 18 notice the reasoning behind applying section 18 (so long as doing so does not in itself confirm or deny whether information is held). Setting out the reasoning in a section 18 notice could prevent an internal review or an investigation by the Commissioner.
Scottish Government moves to recover lost FOI rights

June 8th, 2013

On Friday it was announced that the Deputy First Minister of Scotland, Nicola Sturgeon MSP, laid before Parliament an order under section 5 of the Freedom of Information (Scotland) Act 2002.

Section 5 of the Freedom of Information (Scotland) Act gives the Scottish Ministers the power to designate such persons or bodies that appear to the Scottish Ministers to exercise functions of a public nature or are providing, under a contract made with a Scottish public authority, any service whose provision is a function of that authority as public authorities for the purposes of the Freedom of Information (Scotland) Act 2002.

The power under section 5 has never before been used by any member of the Scottish Administration since the Act came into force on 1 January 2005. Schedule 1 to the Freedom of Information (Scotland) Act 2002, which sets out those persons and bodies covered by the Act, has been amended by other statutory provisions as new public bodies have been created and as existing public bodies are abolished.

The new order, if approved, will make arm’s length bodies established by local authorities to provide cultural, sports and leisure services public authorities under the Freedom of Information (Scotland) Act 2002. Since the Act was passed in 2002 there has bene a significant shift in the way that public services have been provided. Local authorities have established companies to carry out a whole variety of functions. These companies are not covered by the Freedom of Information (Scotland) Act 2002 and their establishment has represented a loss of information access rights.

This move is to be welcomed and it is an important step forward in ensuring that those who are responsible for spending public money and delivering public services are accountable directly to the people of Scotland for how they spend that money and provide those services. However, it does little more than recover information access rights that have been lost and rectify a government failure in not designating these bodies earlier. There remain bodies who carry out important public functions which, it is argued, should be covered by the Freedom of Information (Scotland) Act 2002. If the Scottish Government is serious about FOI and extending its coverage, then it ought to go further and consult on other bodies (such as COSLA, the Law Society of Scotland and the Faculty of Advocates).
Changes to FOI in Scotland from 31 May 2013

May 23rd, 2013

Friday 31 May 2013 is the day appointed by the Scottish Ministers upon which the Freedom of Information (Amendment) (Scotland) Act 2013 comes into force. This Act amends the Freedom of Information (Scotland) Act 2002 in some technical respects, and this post is a brief overview of the changes that will come into force next week.

Neither confirm nor deny

Section 18 of the Freedom of Information (Scotland) Act 2002 exempts public authorities from their normal requirement to identify whether information requested in a FOI request is held or not. It applies only where certain exemptions could be claimed if the information were held. Currently, public authorities cannot ‘neither confirm nor deny’ whether information is held if that information is personal information (exemption under section 38). From Friday 31 May 2013, public authorities will be able to deploy section 18 where the information held is personal information.

Information available in the publication scheme

The Freedom of Information (Scotland) Act 2002 will be amended from 31 May 2013 to make it clear that information contained in a public authorities publication scheme is ‘otherwise accessible’ where applicable fees required by the public authority are set out in the publication scheme. This will ensure that public authorities can utilise the section 25 exemption for information that is otherwise accessible to information contained within its publication scheme.

Historical Periods

Some of the exemptions in Part II of the Freedom of Information (Scotland) Act 2002 are no longer available to public authorities after a certain period of time has elapsed. Changes to the Freedom of Information (Scotland) Act 2002 coming into force next week will give the Scottish Ministers more latitude in varying the periods that exemptions apply to certain classes of information. They will be able to be much more specific in the exercising of this power than was previously allowed by Parliament.

Prosecution Time Limits

The time limit for prosecuting a public authority for alleged offence sunder section 65 of the Freedom of Information (Scotland) Act 2002 has been modified so as to make it possible to bring prosecutions where it appears that offences have been committed. For all offences which have been committed on or after 31 May 2013, the 6 month time period for brining a prosecution will begin on the date that evidence which the prosecutor believes is sufficient to justify bringing proceedings comes to the knowledge of the prosecutor (and no more than 3 years after the date the offence was committed, or ceased to be committed in the case of a continuing contravention of section 65). A certificate signed by the prosecutor as to the date sufficient evidence came to the prosecutor’s knowledge to justify brining proceedings will be conclusive of that fact.

Designation of authorities

The Scottish Ministers will be accountable to Parliament over their use (or lack of) of their power to designate bodies as public authorities for the purposes of the Freedom of Information (Scotland) Act 2002 under section 5. The Ministers must lay a report before Parliament by 31 October 2015, and every 2 years after that, explaining why the power at section 5 has been exercised or gone unexercised.

The people whom the Ministers must consult before exercising their powers under section 5 of the Act has been extended to include ‘other persons as they consider appropriate’ in addition to those bodies covered by any proposed order (or those appearing to represent them). This should, hopefully, open up section 5 order consultations to the public as well as the Scottish Information Commissioner.
Anonymity upon arrest

May 16th, 2013

The naming of suspects by police at the point of arrest and charge has become a hot topic. The Home Secretary has written to Chief Executive Officer of the College of Policing, Alex Marshall, expressing her concern about the different policies operated by different forces in England and Wales. She wants it made clear to forces that unless there are very good public interest reasons for naming suspects who have been arrested, it shouldn’t happen. The press have repeated concerns that this amounts to some kind of ‘secret justice’.

I really have little concern about suspects under arrest who have not been charged remaining anonymous. Far too often we see examples of the press effectively having a trial which convicts the person while that person is still in police station being questioned in connection with an alleged offence. By the time this person is then released from the police station their reputation has been destroyed, even if they are entirely innocent of any involvement in any crime.

Persons who have been arrested and not named do not fall into some big black hole; indeed millions of people are arrested in England and Wales every single year and very few are named at the point of arrest (in fact very few are named publically at any point, even after conviction). There are important rights, protected by law, which mean that it is impossible for someone to be secretly arrested. Those arrested have the right to have someone informed of their arrest and are entitled to legal representation; although both of these can be delayed, they are still rights which have to be exercised eventually if the arrested person wishes to exercise those rights.

It has been argued that naming a suspect at the time of arrest allows further victims to come forward, but so would naming them at the time of charge. There is nothing stopping the police from arresting the person again in connection with different allegations that come to light after they have been charged.

In effect what a policy of anonymity for suspects under arrest would prevent is the press from publishing endless stories ‘monstering’ a person over something they may or may not have done. We should perhaps be more than a little suspicious of the motivation of the press on this story; evidently ‘monsetring’ stories are the type of stores that make newspapers (particularly tabloid newspapers) sell. Such a motivation cannot be ruled out of the press opposition to a move towards anonymity of arrested persons.

The clearest example of this was that of Christopher Jeffries, the man who was wrongly arrested on suspicion of murdering Joanna Yeates. What followed, while he was still in police custody being questioned, was a press frenzy which painted him as a deviant, gave the impression that he was a nasty individual and by implication that he was clearly Joanna Yeates’ killer. However, he was later released from police bail (having never been charged) and won substantial damages from eight newspapers for libel. The Attorney General also prosecuted two newspapers for contempt of court, both of whom were found to be in contempt. Another mab, Vincent Taback, eventually convicted of her murder and is currently serving life imprisonment.

Charging a person with a crime is a formal process; it is when criminal proceedings begin against a person. From the point that a person is charged it is clear that the Contempt of Court Act rules kick in. These rules provide sufficient protection in respect of the person’s right to a fair trial and news stories which are sufficiently prejudicial could even cause the collapse of a trial (although that is rare and it would have to be something of great significance). The only cases where publishing the names of people who have been charged with an offence which causes me to pause and really think are those accused of sexual offences. With sexual offences, more than any other offence, there appears to be a guilty until proven innocent mindset amongst general pubic; there is no smoke without fire, so to speak. However, there are strong arguments in favour of anonymity and disclosure in those cases and it is a finely balanced argument. Although I have argued in favour of anonymity before, I now believe that the arguments in favour of disclosure are slightly weightier. However, in sexual offences cases I do feel that the authorities responsible for bringing cases in respect of alleged contempts of court have to be more pro-active. Perhaps also providing for a possible (short) custodial sentence for editors who are guilty for allowing a seriously prejudicial story to be published (i.e. that type of story that causes or is seriously likely to cause the collapse of a whole trial) might make editors slightly more responsible around high profile cases.

It would be entirely right for the police to move to a system of neither confirming nor denying to the press whether they have a specific person in custody under arrest. This gives the police the space to conduct that initial investigative phase and it will minimise the reputational damage done to those who are innocent and unfortunately arrested. Without confirmation from the police of the name of the person in custody it is unlikely that the press will publish any name that they do have. However, if such a move did not stop the press frenzy that we currently see around arrested persons, I would certainly not be adverse to Parliament passing legislation which specifically prohibits the confirming of names of arrested persons outside of a set of clearly defined circumstances where it really is in the public interest (and that’s not what the public are interested in) to release the name at such an early stage.

We do have a system of public justice and it is important for both the public and those accused of crimes that trials happen in the public eye. This is not so that the public can gawp and stare and slander individuals accused of crimes, but so that the public can see that justice is being done and to protect those accused of crimes from oppressive state practices.