Alistair Sloan, Advocate

Case Note: City of Edinburgh Council against a decision of the Lothian Valuation Appeal Committee

April 12th, 2014

On 9 April 2014 the Court of Session issued its decision in an appeal by the City of Edinburgh Council against a decision of the Lothian Valuation Appeal Committee. The Courts judgment can be read in full here. The case concerns liability for council tax while a property is uninhabitable as the result of renovation and construction works.

Facts

Mr Miller purchased a residential property in March 2007. The property was unfurnished and unoccupied. Following his purchase he requested that the Council assess the property to determine whether the property was habitable or uninhabitable. In May 2007 the Council duly carried out that assessment and found that the property was uninhabitable due to the major construction works being undertaken.

In December 2007 Mr Miller applied to the City of Edinburgh Council for a Building Warrant in order that he could construct an extension to the property. After delays, the Building Warrant was granted in November 2008. In July 2011 the City of Edinburgh Council determined that the property was still “unfit for human habitation…due to the extensive renovation work underway”. However, no statutory prohibition notice was served on Mr Miller.

In December 2012 the Lothian Valuation Appeal Committee held a hearing concerning the liability for Council Tax in respect of this property. Mr Miller’s solicitors argued that as it would have been an offence under section 21(5) of the Building (Scotland) Act 2003 for Mr Miller to inhabit the property, occupation of the property was prohibited by law and paragraph 7(a) of Schedule 1 to the Council Tax (Exempt Dwellings) (Scotland) Order 1997 was engaged. Mr Miller’s Solicitors argued that the property was exempt from council tax.

The Council argued before the Lothian Valuation Appeal Committee, and the Court of Session, that Section 21(5) of the Building (Scotland) Act 2003 was not engaged. It relied upon the fact that the works that the Building Warrant authorised had not been registered as having by the issuing of a Start of Works notice to the Building Standards department. The Council also argued that there had been no evidence that the works which the Building Warrant authorised (that is the construction of the extension) had commenced.

The Lothian Valuation Appeal Committee accepted Mr Miller’s argument and found that the property was exempt from Council Tax. The Council appealed.

Decision and reasoning of the Court

The Court of Session quashed the decision of the Lothian Valuation Appeal Committee.

The Court of Session accepted that the exemptions from the payment of council tax are located in Schedule 1 to the Council Tax (Exempt Dwellings) (Scotland) Order 1997 and that liability does not require there to be a person living in the property. The Court did not accept that section 21(5) of the Building (Scotland) Act 2003 was engaged in this case. However, the Court went on to say that even if section 21(5) of the Building (Scotland) Act 2003 was engaged it considered that occupation could include occupation for the purposes of carrying out renovations to a property. The Court did not accept that occupation could only mean habitation, indeed section 21(5) of the 2003 Act clearly draws the distinction by excluding occupation for the purposes of construction or conversion. The Court went on to say that paragraph 7(a) of the Council Tax (Exempt Dwellings) (Scotland) Order 1997 was not engaged as occupation was not prohibited by law; the property would have been occupied for the purposes of the renovation.

The Court also considered that the Council Tax (Exempt Dwellings) (Scotland) Order 1997 provided a specific exemption for the purposes of major repair work or structural alteration. These can be found in paragraphs 2 and 4 of Schedule 1. Paragraph 2 relates to dwellings which are under repair, and since 2000 has been limited to a period of 12 months since the day that the property was last occupied while paragraph 4 relates to dwellings which are both unfurnished and unoccupied. The Order places a restriction of 6 months since the last period of 3 months in which it was occupied. The Court considered that as there were specific statutory provisions, which were time limited, in respect of properties like that in this case, it would not be appropriate to read paragraph 7(a) in the way that the Lothian Valuation Appeal Committee had. The Court agreed with the City of Edinburgh Council that Parliament’s intention would be defeated with such an interpretation of the provisions.

Comment

This case deals with the statutory interpretation of the Council Tax (Exempt Dwellings) (Scotland) Order 1997. It is clear that properties that are undergoing substantial repair work, which prevents them from being inhabited, are entitled to an exemption from council tax only for a period of 12 months following the date at which they are vacated for the purposes of that work. It is not possible to escape the payment of council tax by simply obtaining a Building Warrant and then never obtaining the required Completion Certificate. While Section 21(5) of the Building (Scotland) Act 2003 prevents an individual living in a property which is undergoing conversion or construction and where no completion certificate has been accepted, it does not prevent its occupation in a way that would engage paragraph 7(a) of the Council Tax (Exempt Dwellings) (Scotland) Order 1997.
ICO to appeal HS2 veto

April 10th, 2014

It has been reported that the Information Commissioner is to make an application for Judicial Review of the decision by the Secretary of State for Transport to issue a certificate under section 53 of the Freedom of Information Act 2000 (‘the FOIA’) in respect of the Commissioner’s decision that the project assessment report pertaining to the HS2 project should be released under the Environmental Information Regulations 2004 (‘the EIRs’).

The Commissioner’s decision to make an application for judicial review is undoubtedly underpinned by the decision of the Court of Appeal in the case of R (Evans) v Attorney General and Information Commissioner in which the Court of Appeal decided that the use of the ‘veto’ under section 53 of the FOIA was unlawful in respect of information which is environmental in nature. I have written on the Evans decision here, and so don’t propose to repeat anything that is contained in that post.

In his decision dated 6 June 2013 the Commissioner found that the information contained within the report was Environmental Information, and consequentially it fell to be considered under the EIRs rather than the FOIA. The Cabinet Office, who were the public authority concerned, relied on Regulation 12(4)(e). The Commissioner found that the exemption was engaged, in that the information concerned amounted to internal communications. However, he decided that the public interest in maintaining the exemption did not outweigh the public interest in releasing the information. As a result the Information Commissioner ordered the Government to release the information contained within the report.

As the information amounts to Environmental Information, and following the decision of the Court of Appeal, the Secretary of State’s certificate under section 53 is unlawful. It should be noted that the Evans decision is subject to an appeal to the Supreme Court by the Attorney General. It is possible that the Supreme Court could over-turn the Court of Appeal’s decision in that case which states that the veto is unlawful in respect of Environmental Information.

Some interesting times ahead in the world of FOI.
The new Scottish Public Authorities: Who are they?

March 26th, 2014

On 1 April 2014 the Freedom of Information (Scotland) Act (Designation of Persons as Scottish Public Authorities) Order 2013 (‘2013 Order’) enters into force and it is the first such Order made by the Scottish Ministers under section 5 of the Freedom of Information (Scotland) Act 2002 (‘FOISA’) since FOISA entered into force.

The 2013 Order will make new bodies subject to the provisions of FOISA, and by extension* to the Environmental Information (Scotland) Regulations 2004 (‘Scottish EIRs’). The 2013 Order does not list specific bodies which will become subject to FOISA and the Scottish EIRs, rather it describes the bodies that are to be made subject to FOISA and the Scottish EIRs. The Schedule to the 2013 Order has two columns, and the bodies which fall within the description in Column 1 will becomes subject to FOISA and the Scottish EIRs for their functions described in Column 2.

Column 1
By virtue of Column 1 a body which has been established or created solely by one or more local authorities who on behalf of any of those authorities developed and/or deliver recreational, sporting, cultural or social functions and activities, and are wholly or partially funded by any of those authorities will become subject to FOISA and the Scottish EIRs.

This refers to Arms Length External Organisations (ALEOs) established by one or more of the 32 local authorities in Scotland to develop and/or provide recreational, sporting, cultural or social functions and activities which receive funding from those local authorities. It is much wider than the section 6 provisions which relates only to companies wholly owned by one or more Scottish public authorities. This modification to FOISA will cover many different structures of organisations from Partnerships, Limited Liability partnerships, Trusts and many other different business structures.

Column 2
The bodies covered by the definition in column 1 will only be subject to FOISA and the Scottish EIRs in relation to their functions mentioned in Column 2. Column 2 refers to a number of sections of legislation which give local authorities the power to carry out certain factions. The functions are listed below with a brief explanation of what they mean.

Section 90 of the Local Government (Scotland) Act 1973
This section gives local authorities the power to carry out certain functions in respect of tourism. This includes the provision, or encouragement of any other person to provide, facilities for leisure, conferences, trade fairs and exhibitions or improve, or encourage any other person to improve, any existing facilities for those purposes; the promotion, by advertisement or otherwise, of facilities provided by that local authority (whether such facilities are owned by the authority or otherwise); and the organising, or assisting others in the organisation of, and promotion, by advertisement or otherwise, conferences, trade fairs and exhibitions.

Section 163 of the Local Government (Scotland) Act 1973
This section (or what is left of it) gives local authorities a duty to provide adequate library facilities for all persons resident in their area.

Section 14 of the Local Government and Planning (Scotland) Act 1982
Broadly speaking, this section places upon local authorities a duty to provide adequate provision of facilities for the inhabitants of their area for recreational, sporting, cultural and social activities.

Section 20 of the Local Government in Scotland Act 2003
This section provides for a general power for local authorities to do anything that it considers is likely to promote or improve the well-being of its area and/or any persons in its area.

What does it actually mean?

I am not so sure that any of the above actually brings us closer to understanding just who will be subject to FOISA and the Scottish EIRs following the entering into force of the 2013 Order. Some of the most notable examples though will include leisure trusts (which are not companies, who are already subject to FOISA and the Scottish EIRs) and bodies responsible for the provision, maintenance and development of library facilities.

There are certainly benefits to drafting the 2013 Order in this way. Had the Scottish Ministers simply listed specific bodies it would have become out of date very quickly. The provision of services by local authorities is very fluid and can change overtime. ALEOs can exist and then be merged or wound-up, their functions can be taken back in-house only to later be put out to another ALEO. It will largely protect against the fluidity of ALEOs and should hopefully ensure that we don’t see (at least in respect of services provided by local authorities) the reduction in information access rights that has been seen since the introduction of FOISA in 2005.

How to know if a body is covered
In the first instance it is going to be largely up to the individual body to determine if it is covered by the extension, and if so to what extent. In theory they should already have been making preparations by putting in place a publication scheme (which in practice will likley be simply to adopt the Commissioner’s Model Publication Scheme) and a framework for dealing with requests. However, there might have to be some testing of the law in respect of some bodies.

The easiest way to find out if a body is covered is probably to approach the body. If they say that they are then you can go ahead and make your request like you would to any other Scottish Public Authority (‘SPA’). However, if they say they are not you might have to be a bit more persistent. Ultimately, it will be for the Scottish Information Commissioner (as the person responsible for enforcing FOI law in Scotland) to determine whether a body is a SPA or not. She can only accept an application after a request for information has been made and a request for internal review has also been made. This will mean that it will be necessary to go through the process of submitting a request and either waiting for word from the body that they won’t respond or for 20 working days to elapse without a response before then submitting your internal review and again waiting for word from the body that they won’t respond or for 20 working days to elapse without a response.

A determination by the Commissioner that a body is (or isn’t) a SPA by virtue of the 2013 Order wouldn’t necessarily be the end of the road. A decision by the Commissioner that an application cannot be accepted by her is open to the possibility of an application for Judicial Review, while a decision notice issued against a body that disagrees with the determination that it is covered could be open to appeal to the Court of Session under section 56 of FOISA (and then to the Supreme Court).

*by virtue of Regulation 2 of the Scottish EIRs any body listed in Schedule 1 to FOISA or designated under Section 5(1) of FOISA is also subject to the Scottish EIRs.
Princes, letters and Freedom of Information

March 13th, 2014

Yesterday the Court of Appeal issued its judgment in the continuing saga that is the bid by Guardian Journalist Rob Evans to obtain the information contained in a variety of letters sent by HRH Prince Charles, the Prince of Wales to a number of departments of Central Government between 1 September 2004 and 1 April 2005.

The saga has been a long one in which the Information Commissioner agreed with the Government. However, the Upper Tribunal disagreed and ordered a number of the letters to be released. The Upper Tribunal found that the letters fell into two categories: those which were about the Prince of Wales preparing to become Monarch and those which were him advocating in respect of causes which were close to him. It was this latter category of letters that the Upper Tribunal found after determining that they were not covered by the constitutional convention which provides that the heir to the throne be educated in Government business in order to prepare him (or her) for becoming King (or Queen) and that correspondence pertaining to that be confidential and not be released.

After the Upper Tribunal issued its decision the Attorney General issued a certificate under section 53 of the Freedom of Information Act 2000 (FOIA) which sets aside the decision of the Upper Tribunal. Mr Evans judicially reviewed that decision and the Administrative Court upheld the certificate. Mr Evans then appealed to the Court of Appeal which quashed the Attorney General’s certificate.

There are two separate issues to the certificate. The first one that I shall deal with here, is the EU dimension to the case. Some of the information contained within the letters amounts to Environmental Information which falls to be governed by the Environmental Information Regulations 2004 (EIRs). Those Regulations exists to transpose into domestic law a EU Directive on access to Environmental Information which in turn exists to bring into EU law the provisions of the Aarhus Convention. Therefore the principles of EU law apply to the Environmental Information and the domestic law cannot be incompatible with it. In its judgment the Court of Appeal held that the existence of the veto was incompatible with EU law. This effectively means that the veto contained in section 53 of the FOIA cannot be used in respect of information which is environmental in nature (as defined by the Directive and the Regulations).

The Directive which the EIRs transpose into domestic law provide that there should be an independent and impartial tribunal to decide upon whether a public authority has complied with its obligations, and that the decision of this independent and impartial body must be final. The EIRs have, by virtue of the application of the FOIA, an extensive appeals structure which begins with a complaint to the Information Commissioner and subsequent appeal to a specialist tribunal followed thereafter by appeals on points of law potentially all the way to the Supreme Court. While there is no single independent or impartial tribunal whose decision becomes binding, at some stage a decision will be made by an independent or impartial tribunal which is final and binding upon the public authority. However, by virtue of section 53 of the Freedom of Information Act, it can be side-stepped by someone within the Executive (in this case the Attorney General). The Divisional court, in its decision, held that the existence of the right to judicially review the decision to issue a certificate under section 53 of the FOIA. However, the Court of Appeal disagreed. The Master of the Rolls said at paragraph 55:

A judicial review of the certificate of an accountable person is substantively different from a review by a court or other independent body of the acts or omissions of “the public body concerned”. The focus of the two reviews is different.

The Court of the Appeal was of the view that as judicial review was focussed on the act of the person who issued the certificate, rather than on the public authority’s compliance with the EIRs, it was in breach of the requirements of European law; therefore it was unlawful.

The Court of Appeal also considered the Attorney General’s use of the ‘veto’ under section 53 in respect of the information contained in the letters which was covered by the Freedom of Information Act. The Court held that in order for a section under section 53 to be valid, it had to be based on reasonable grounds. The Court of Appeal decided that for the grounds to be reasonable there would have to be something more than simply disagreeing with the decision. The Master of the Rolls gave some examples of what ‘something more’ might mean in paragraph 38 of the Court of Appeal’s decision:

a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law.

Such an interpretation of the law clearly significantly affects the power of ministerial veto and its effectiveness. It is also clearly against the intention of Parliament when it passed the Freedom of Information Act. The veto was placed in the Act by the Labour Government that passed it as a central element of the Act – something to act as backstop to protect central government from inappropriate releases. It was intended to place central Government in the position of being the final arbiter of what central government information is released under FOI. It is a constitutional aberration as described by both the Divisional Court and the Court of Appeal, but that is what Parliament determined when it passed the law with section 53 in it.

The Court of Appeal quashed the Attorney General’s certificate which makes the Upper Tribunal’s decision requiring release of certain letters effective again. It held that his certificate was unlawful in terms of all of the information it was intended to cover. This is certainly a key judgment and is very interesting. It engages with some important issues in respect of the ministerial veto, and it is a Court of Appeal decision. However, as much as I agree in principle with the Court of Appeals decision, I think in terms of the legal matters I suspect that it is vulnerable to being overturned, at least in part, on appeal.

I am of the view that the Court of Appeal’s decision should be treated with a bit of caution. In respect of the application of the veto on Environmental Information, the Court of Appeal’s decision appears to be entirely correct. The existence of the veto does not sit well with the requirements of the Directive and is most probably unlawful in terms of European law. However, I suspect that the Court of Appeal has fallen into error in its interpretation of section 53 insofar as it relates to information covered by the Freedom of Information Act. The veto was clearly intended to be used in the way the Attorney General used it when passed by Parliament. It was Parliament’s clear will and it would be inappropriate to read things into the legislation that as so clearly against the will of Parliament.

The Attorney General has been given permission to appeal the Court of Appeal’s decision to the Supreme Court and it will be interesting to see what the Supreme Court has to say. I suspect there will be a great deal of discussion around the meaning of the words ‘reasonable opinion’ in section 53.
Fish, Law and Environmental Information

January 2nd, 2014

Are water companies subject to the Environmental Information Regulations 2004 (the EIRs)? That was the question that the Court of Justice of the European Union set about answering; last month it issued a decision that (in typical CJEU fashion) answered the question without actually answering the question.

On Thursday 19 December 2013 the Grand Chamber issued its judgment in Fish Legal and Emily Shirley v Information Commissioner, United Water Utilities Plc, Yorkshire Water Services Ltd and Southern Water Services Ltd (Fish Legal); while it doesn’t give a definitive answer to the question at the outset of this blog, it is an important judgment in respect of the question as to just who is subject to the EIRs.

Background

The EIRs (like the Environmental Information (Scotland) Regulations 2004 do in Scotland) implements into the law of Northern Ireland and England and Wales Directive 2003/4/EC, which in turn implements the Aarhus Convention into Community Law. The EIRs set out a framework in which members of the public can ask public authorities for ‘Environmental Information’, and to be provided with that information (subject to certain exceptions). Regulation 2(2) of the EIRs defines what a public authority is. The definition given by the Regulations is:

(2) Subject to paragraph (3), “public authority” means—

(a) government departments;

(b) any other public authority as defined in section 3(1) of the Act,
disregarding for this purpose the exceptions in paragraph 6 of Schedule 1 to the Act, but excluding—

(i) any body or office-holder listed in Schedule 1 to the Act only in relation to information of a specified description; or

(ii) any person designated by Order under section 5 of the Act;

(c) any other body or other person, that carries out functions of public administration; or

(d) any other body or other person, that is under the control of a person falling within sub-paragraphs (a), (b) or (c) and—

(i) has public responsibilities relating to the environment;

(ii) exercises functions of a public nature relating to the environment; or

(iii) provides public services relating to the environment.

(3) Except as provided by regulation 12(10) a Scottish public authority is not a “public authority” for the purpose of these Regulations.

(In the EIRs “the Act” refers to the Freedom of Information Act 2000, or ‘the FOIA’)

Fish legal is the legal arm of the Angling Trust, and in August 2009 it wrote to two of the water companies concerned asking for information concerning discharges, clean-up operations, and emergency overflow. Emily Shirley wrote to the remaining water company seeking information from them concerning sewerage capacity. The three water companies concerned did eventually provide the information that was requested by the two applicants. However, the matter before the Upper Tribunal was whether the water companies were under a duty to provide the information as public authorities under the EIRs. Unsurprisingly, the three water companies (all private companies) took the view that they are not public authorities within the meaning of Regulation 2 of the EIRs and were thus not under any duty to comply with the EIRs. When the Information Commissioner considered complaints made by the two applicants under Section 50 of the FOIA (as modified by Regulation 18 of the EIRs) he agreed with the water companies and decided that they did not meet the definition of a public authority under the EIRs.

The two parties appealed the Commissioner’s decision to the First Tier Tribunal who eventually dismissed the appeals (following the Upper Tribunal’s decision in Smartsource v Information Commissioner and others), but gave leave to appeal to the Upper Tribunal. The Upper Tribunal decided to make a reference to the Court of Justice of the European Union.

Court of Justice’s Judgment

On the question of whether water companies are public authorities under the EIRs, the Court of Justice stated at paragraph [55] that it is for the Upper Tribunal to answer this question. A very helpful judicially penned sentence. However, the court of Justice did provide some guidance as to how the Upper Tribunal can reach a decision on this question. It went on to say in paragraph [56]:

In the light of the foregoing, the answer to the first two questions referred is that, in order to determine whether entities such as the water companies concerned can be classified as legal persons which perform ‘public administrative functions’ under national law, within the meaning of Article 2(2)(b) of Directive 2003/4, it should be examined whether those entities are vested, under the national law which is applicable to them, with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.

In essence the Tribunal has to look at the powers that the water companies have and determine from there whether the powers they have extend beyond those that would normally extend from the private law.

The Court of Justice then went on to consider the question of control of the water companies. The Directive, and in turn the EIRs, include any other body or person that is under the control of a body or person covered by the EIRs, and provides public services relating to the environment. There was no disagreement between the parties that the water companies provide public services relating to the environment. The only controversial aspect was whether they were under the control of a body or person covered by the EIRs. Under the Water Industry Act 1991 the privatised water companies are subject to regulation by Ofwat and the Secretary of State, both of whom are public authorities for the purposes of the EIRs; however, the question is whether the water companies are under the control of Ofwat and/or the Secretary of State. If they are, then they are public authorities for the purposes of the EIRs.

On the question of control the Court of Justice did not provide a definitive answer; however, it did give some guidance as to how the Upper Tribunal should determine whether the water companies are under the control of Ofwat and/or the Secretary of State. Where a person or body is not able to “determine in a genuinely autonomous manner the way in which it performs the functions in the environmental field which are vested in it, since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on the entity’s action in that field.” [68] So, in essence, if the autonomy that a water company has to decide how it is to carry out its public environmental functions is limited by the power of Ofwat and/or the Secretary of State, it will be under the control of them; and that will have the consequence of making the water company a public authority for the purposes of the EIRs.

The method by which power a public authority has over an entity carrying out public environmental functions is exercised does not matter much. The exercise of power could be as a shareholder; it could be the power to suspend or annul decisions taken by the company, or require prior authorisation before those decisions are taken; or it could the power to remove members of the company’s management (among other things). [70]

What now?

The Court of Justice may not have given a definitive decision as to whether water companies are public authorities; however, it has given an important decision that will enable the Upper Tribunal to answer the question. It also provides important guidance which will apply outside of the question of water companies. It is now up to the Upper Tribunal to make a determination on the water companies front; that decision will turn on two factors: (1) the degree to which the powers water companies have is beyond the scope that would normally be expected under the private law; and (2) the degree of control that Ofwat and the Secretary of State hold over the decision making of the water companies in respect of their public environmental functions.

I won’t venture an opinion on either of those questions; I don’t know enough about the water industry in England and Wales, nor do I care enough to learn, to make a judgment on either of those questions. I’ll happily leave it up to the Upper Tribunal to consider these points and decide upon them.

What about Scotland?

In terms of Scottish Water, the question is already settled. Scottish Water, being a public authority listed in Schedule 1 to the Freedom of Information (Scotland) Act 2002, is covered by Regulation 2 of the Scottish EIRs.
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.