The new Scottish Public Authorities: Who are they?

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.

Beggs v Scottish Information Commissioner and Strathclyde Police

In the world of Freedom of Information in Scotland decisions of the Court of Session are rare, and on 21 January 2014 the Court of Session delivered its decision in the case of Beggs v Scottish Information Commissioner and the Chief Constable of Strathclyde Police.

Background

Mr Beggs wrote to Strathclyde Police on 7 July 2010 to request information from the Chief Constable concerning the investigation into a murder for which he was convicted in 2001.  The way in which Strathclyde Police had handled the request was considered by the Commissioner in decision 88/2011 in which the Commissioner required Strathclyde Police was required to carry out a review of certain aspects of Mr Beggs request.  It should be noted that throughout the Commissioner’s decisions, Mr Beggs is known simply as ‘Mr G’.  Following that review, Mr Beggs applied to the Commissioner again for a decision in terms of section 47(1) of the Freedom of Information (Scotland) Act 2002 (“FOISA”).  The Commissioner duly investigated that application, and that resulted in decision 251/2011 in which the Commissioner found that Strathclyde Police were correct to withhold the information under section 34(1) of FOISA and that they did not hold any further information in respect of parts of the request.

Mr Beggs appealed the decision to the Court of Session under section 56 of FOISA, such appeals can be on a point of law only (which is one of the ways in which FOISA differs from the Freedom of Information Act 2000 which covers UK public authorities).

The Exemptions

The exemptions cited by Strathclyde Police were contained in section 34 and section 35 of FOISA, both of which are exemptions which are subject to the public interest test; that is, the exemptions fall away where the public interest in maintaining the exemption is less than or equal to the public interest in releasing the information.

Arguments by Mr Beggs

Mr Beggs sought to argue that the Commissioner had erred in law in respect of his consideration of the public interest.  Counsel for Mr Beggs argued that the interpretation and application of the public interest was a matter of law.  Counsel for Mr Beggs argued that in respect of the various public interest factors which were considered by the Commissioner were not given the appropriate weight to them; that is, some of those factors ought to have been given a greater weight by the Commissioner than they were.

Sections 34 and 35 of FOISA clearly exist to protect the interests of justice; they exist to prevent information being released that might harm law enforcement and the judicial process.  Counsel for Mr Beggs argued that following the conclusion of a trial the level of force that protecting these interests have diminishes after the trial.  It was also argued that by focusing on generalised factors, and by not giving consideration to the specific circumstances in this case, the Commissioner had erred in law.

Arguments by the Commissioner

In respect of Mr Beggs’ arguments relating to the weight that the Commissioner ought to apply to the various public interest factors, the Commissioner argued that an error of law would not arise unless it could be shown that it was perverse or irrational.  Counsel for the Commissioner argued that no such evidence had been given.  Counsel for the Commissioner argued that smply because they were general didn’t meant that they were not relevant, and that Mr Beggs had placed before the Commissioner no specific arguments himself.

In responding to the reduction of the weight to be attached to the exemptions, Counsel for the Commissioner pointed to section 58 of FOISA which makes provision for some expiations “falling away”; in respect of section 35, FOISA provides that the exemption continues to apply for a period of 100 years.

Decision of the Court

The Court dismissed Mr Beggs’ contention that the Commissioner had failed to give sufficient weight to the various factors in this case.  The Court sets out the detail in which the Commissioner sets out the reasons for his decision and concludes that there was nothing perverse or irrational.  The Court stated at paragraph [15] that:

this ground of appeal amounts to is that the appellant does not agree with the weight which the Commissioner has attached to the various factors before him.  Such disagreement as to weight, in the absence of perversity or irrationality, does not amount to an error of law. It does not constitute “an appeal on a point of law” for the purpose of section 56 of the Act.

At Paragraph [20] of their judgment, the Court dismisses the argument that the “that the public interest in maintaining the exemption diminishes with the passage of time”.  In doing so it points to the provisions of FOISA in respect of section 35, and the terms of the explanatory notes in respect of section 34.

The entire appeal was dismissed

Comment

This was an interesting case dealing with the public interest test contained with FOISA.  Many of the exemptions are subject to the balancing of the public interest.  In doing so, public authorities are required to satisfy themselves that the public interest in maintaining the exemption outweighs the public interest in releasing the information.  The test places the burden of proof entirely with the public authority.  Having the burden of proof with the authority is both fair and reasonable; after all, it is the authority that has access to the information and is seeking to prevent its disclosure.  It is difficult, if not impossible, to argue the public interest for a position of complete blindness.

Paragraph [20] of the Courts judgment does appear to be rather interesting.  The notion that the public interest in maintaining an exemption diminishes with time has been almost universally accepted; indeed it even features in the Commissioner’s guidance on the public interest test (page 5).  It would seem odd if the Court is interpreting the legislation in a way that it clearly never was intended to be construed.  The whole purpose of the public interest test is to ensure that information is only withheld when it is in the public interest to do so.  It will often be the case that the public interest in maintaining the exemption thirty or forty years after the information was created will be very different to what it was thirty or forty days after it was created.  In respect of section 35, my reading of section 58 leads me to the conclusion that the information that is part of that class is exempt (subject to the consideration of the public interest) for a period of 100 years; once 100 years have elapsed the exemption ceases to apply and there can be no question as to whether it is in the public interest or not.  I am not at all sure what the Court meant in paragraph [20], but I don’t think that it would have meant what it appears it said.

Of course what paragraph [20] means rests on the arguments put before the Court, and the Court has provided little in the way of detail on the arguments advanced by Counsel.  It is clear from the legislation that Parliament intends the exemption to cover all information falling within the class of information for a period of 100 years; however, it is equally clear that Parliament intended that information falling within the class protected at section 35 could be released before this period is up by making it a qualified (as opposed to an absolute) exemption.  It is necessary to try and read between the lines in order to attempt to fully understand what the Court was saying.

It would appear that perhaps Counsel for Mr Beggs was attempting to argue something slightly different; his Counsel appeared to be suggesting that post-trial there is very little interest in keeping the information secret.  That is not a position that I would agree with, even if the legislation did not make it abundantly clear that such a position was not open.  There is a strong public interest inherent in sections 34 and 35, and quite rightly it should take a very forceful argument to dislodge the exemption upon application of the public interest.  Undoubtedly though, the closer one gets to the 100 year mark set out in FOISA, the more the public interest in maintaining the exemption reduces.  Of course The very nature of the public interest test is such that it will entirely depend upon the facts and circumstances of individual cases.

I would be very interested to hear others thoughts on the judgment.  If you have any, please feel free to stick them in the comments section below.

Pro-active disclosure and FOI

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

ImageToday (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

Transparency in the reporting of FOI responses?

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

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.

Requirements for refusal under FOISA section 18: OSIC Decision 100/2013

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.