A problem with the Scottish EIRs

The Environmental Information (Scotland) Regulations 2004 (“Scottish EIRs”) give individuals the right to request and obtain, subject to certain well defined exceptions, information in relation to the environment from Scottish public authorities.  They implement into the law of Scotland Directive 2003/4/EC of the European Parliament and of the Council on public access to environmental information (“the Directive”).  The Directive in turn implements the Convention on Access to Information, public participation in decision-making and access to justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998 (“the Aarhus Convention”) into EU law.

In Scotland, like the rest of the UK, the Scottish EIRs are an adjunct to Freedom of Information.  The Scottish EIRs sit alongside the Freedom of Information (Scotland) Act 2002 (“FOISA”) and the Scottish Information Commissioner has the same powers of enforcement in respect of the Scottish EIRs as she does in respect of FOISA.  By virtue of Regulation 17 of the Scottish EIRs, Part 4 of FOISA applies to the Scottish EIRs.  The Regulations make certain amendments to Part 4 of FOISA for when it is being read in respect of the Scottish EIRs.

Section 48 of FOISA provides that no application can be made to the Scottish Information Commissioner in respect of three scottish public authorities: (1) the Commissioner herself; (2) a Procurator Fiscal; and (3) the Lord Advocate, where the information relates to his role as head of the systems of prosecution and the investigation of deaths in Scotland.  Essentially, this means that the Scottish Information Commissioner is prohibited from accepting any application for a decision by anyone that relates to the handling of a request for information under FOISA and the Scottish EIRs made to the Commissioner’s Office and the Crown Office and Procurator Fiscal Service (“the COPFS”).  I’m not a fan of this section and think it ought to be repealed in its entirety, but that is a subject for another time.  As far as the Scottish EIRs are concerned this section is a problem.  Essentially, once the Commissioner’s Office and the COPFS have conducted an internal review there is nowhere else for the requester to go if they remain dissatisfied with the response.

Article 6(2) of the Directive provides that:

In addition to the review procedure referred to in paragraph 1, Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. Member States may furthermore provide that third parties incriminated by the disclosure of information may also have access to legal recourse.

The review procedure under paragraph 1 is essentially the internal review procedure provided for by Regulation 16 of the Scottish EIRs.  In respect of every other scottish public authority covered by the Scottish EIRs there exists a right to make an application to the Scottish Information Commissioner and have a decision notice issued by her office together with the ability to appeal (on a point of law only) that decision notice to the Inner House of the Court of Session, and then on to the Supreme Court of the United Kingdom.  There is a decision of a third party that is capable of becoming final.  Therefore, Article 6(2) of the Directive is complied with.  However, these appeal rights do not apply in respect of requests made to the Commissioner’s Office and the COPFS.

It should be theoretically possible to judicially review the internal review response of both the Commissioner and the COPFS.  At a first glance that might be thought to satisfy the requirements of Article 6(2) of the Directive; however, the wording of the Directive suggests that Judicial Review may not be sufficient.  Judicial Review is not an appellate procedure; it is a review procedure.  The Court of Session cannot substitute its own decision for that taken by the public authority.  The Court of Session could, in a judicial review, determine that irrelevant factors had been taking into consideration in respect of assessing the public interest where a qualified exception has been applied; it could not determine that the public interest does or does not support the maintaining of an exception.   Essentially, all the Court can do is uphold the decision of the Commissioner’s Office or the COPFS, or it can quash the decision – it cannot re-take the decision (something that the Commissioner effectively has the power to do when considering an application under section 47(1) of FOISA).  Therefore, judicial review cannot be a “review procedure… in which the acts or omissions of the public authority concerned can be reviewed” because it can only do so to a limited extent.  Therefore, for all practical purposes the decision of the public authority is final, not the decision of a court or another independent and impartial body established by law.

Furthermore, judicial review is expensive and comes with considerable risk in relation to expenses.  While it is theoretically possible for an applicant to represent themselves in the Court of Session, in all likelihood it will necessitate the instruction of a solicitor and at least junior counsel (if not junior and senior counsel); that is expensive.  Even if an applicant manages to represent themselves in the Court of Session; the court fees will be prohibitively expensive to many people.  These fees, payable at various stages throughout the process, will total hundreds of pounds.  The public authority in question will be represented by Counsel and if a requester loses, they may find themselves responsible for paying the public authority’s expenses (although, the Court does retain an inherent discretion in whether to make an award of expenses and to what extent the losing party shall pay the winner’s expenses).  This is relevant because the Aarhus Convention, upon which both the Directive and the Scottish EIRs are based, requires the review processes to be free of charge or inexpensive or not prohibitively expensive (Article 9).  The Court of Justice of the European Union found that the UK had failed to properly implement the Directive when looking at the costs under the English judicial system (see European Commission v United Kingdom).

The problem for the Scottish EIRs gets bigger once consideration is given to the Scotland Act 1998Section 57(2) of the Scotland Act provides that the Scottish Ministers have “no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with EU law.”  The Scottish EIRs are regulations and are therefore subordinate legislation.  By applying section 48 of FOISA to the Scottish EIRs the Scottish Ministers have made subordinate legislation that is ultra vires – it is outside of their competence.  For the Scottish EIRs to be compatible with EU law, section 48 of FOISA cannot apply to them; while it does, the Scottish EIRs do not fully implement Article 6 of the Directive.

This problem is easily resolved.  The Scottish Ministers simply need to amend the Scottish EIRs so as to disapply section 48 of FOISA in respect of the Scottish EIRs.  This would enable the Commissioner to consider applications made to her under section 47(1) of FOISA concerning requests for information made to either her office, or the COPFS that engage the Scottish EIRs.  Of course, the Scottish Ministers could introduce legislation into the Scottish Parliament to repeal section 48 of FOISA altogether (and that would kill two birds with one stone).

If the Scottish Ministers do not choose to make the relevant amendments they could be forced to.  All it would take is for someone to go through the process of making a request for environmental information to either the Commissioner or the COPFS, getting a refusal notice which is then upheld at internal review, and making an application to the Scottish Information Commissioner so as to get a notice from the Commissioner stating that no decision falls to be made.  This can then be appealed to the Court of Session for them to make what appears to be an inevitable decision: the Scottish Ministers acted ultra vires when applying section 48 of FOISA to the Scottish EIRs – an expensive process, but one that someone will eventually go down some day.

The Black Spider Letters – Part IV

This is the final in a series of four blog posts looking at the Supreme Court’s decision in R (Evans) v HM Attorney General.  The first post went through the background to the case, the second post focused on the Court’s decision in respect of section 53 of the FOIA and the third post looked at the Court’s decision in respect of Regulation 18(6) of the EIRs.

This was a significant decision for a number of reasons.  It significantly restricts section 53 of the FOIA and in essence makes it virtually impossible for the Executive to make use of it.  While this might seem, on the face of it, really good for transparency; it comes with a serious warning.  In 6 weeks time the UK will have a new Government and undoubtedly one of the first things that this new Government will want to do is address the decision of the Supreme Court in this case.  The current Government, which may be in its final hours, has previously hinted at making changes to the FOIA that would have a devastating effect on the effectiveness of FOI in the UK.  While addressing this issue the Government might be tempted to make other changes to FOI at the time.

While I fundamentally disagree with the principal that the Executive should be able to veto a decision made by the judiciary in respect of a cause in which it was a party, we do live in a system where Parliament has supremacy.  It is clear that Parliament intended that the Executive should be able to, in certain cases, veto a decision by the Tribunal that information should be disclosed.  For that reason, I disagree with the interpretation given to section 53 by Lords Neuberger, Kerr and Reed.  I find the position of Lord Mance and Lady Hale more in keeping with the intentions of Parliament.  It is my opinion that they struck the right balance between the intention of Parliament and the Rule of Law given the system in the UK and the wording of the statute.

The Regulation 18(6) issue is more problematic for the Government, and here I do think that the 6 Justices of the Supreme Court who held that Regulation 18(6) was incompatible with EU law got it correct.  The wording in Article 6 of the Directive clearly does not envisage the situation where the Executive, who will be the public body holding the information in question, is able to veto the decision of the Court.  It also seems clear from the wording of the Directive that it being open to a requester to judicially review the decision of the Executive to issue a certificate is not sufficient to comply with the review requirements therein.  Part of being a member of the European Union is to accept that EU law has supremacy, in passing the European Communities Act the UK Parliament agreed to have EU law take precedence over Acts passed by it.  Ultimately the UK Parliament is still supreme and would only need to repeal the European Communities Act (which would also necessitate the UK leaving the European Union, but that’s a whole other blog) in order to deal with the Supreme Court’s decision in respect of Regulation 18(6).

What is the impact for Scotland?  The decision in R (Evans) v HM Attorney General is technically not binding upon the Scottish Courts.  Section 41(2) of the Constitutional Reform Act 2005 makes it clear that decisions of the Supreme Court on appeal form Courts in one part of the United Kingdom are “to be regarded as the decision of a court of that part of the United Kingdom”; there is an exemption to this which is not relevant here. Therefore, only decisions issued by the Supreme Court in Scottish cases are considered binding in Scotland (although in cases from other parts of the UK will be highly persuasive on the Scottish Courts).  As this was a case on appeal from England in respect of FOIA and the EIRs, it is only binding on the Courts in England and Wales.

Section 52 of the Freedom of Information (Scotland) Act 2002 (FOISA) provides the First Minister a similar power to that contained in section 53 of the FOIA in respect of decision notices served on the Scottish Administration.  The wording in section 52 is almost identical to that in section 53.  The main difference is around timescales, in that the First Minister has longer than the accountable person under FOIA to issue a certificate.  So, section 52 of FOISA is probably in a precarious position following the decision of the Supreme Court.

The Scottish legislation could face further hurdles that the UK legislation did not due to the constitutional position of the Scottish Parliament.  The Scottish Parliament is a creature of Statute, it has only those powers which are given to it by the UK Parliament and cannot do anything which exceeds those powers.  Section 29(2)(d) of the Scotland Act 1998 provides that no Act of the Scottish Parliament may be incompatible with the rights in the European Convention on Human Rights as given effect to by the Human Rights Act 1998.  There could be a viable challenge to section 52 under Articles 6 (the right to a fair trial) and 10 (freedom of expression).  If it were to be found that the Scottish Administration being able to veto the decision of the Commissioner and/or the Courts was incompatible with either or both of those Rights then section 52 would have no effect as it would be outside of the Scottish Parliament’s legislative competence.  It would be much harder for the Scottish Parliament to get round that, and it would probably require the UK Parliament to legislate on its behalf.

Regulation 17(2)(e) of the Environmental Information (Scotland) Regulations 2004 (the Scottish EIRs) has the same effect as Regulation 18(6) of the EIRs in that it applies section 52 of FOISA to the Scottish EIRs.  However, like the EIRs, the Scottish EIRs are designed to implement the 2002 Directive into domestic law.  The supremacy of EU law is further underlined by the Scotland Act 1998, which provides in section 57(2) that the Scottish Ministers have no power to make subordinate legislation (which the Scottish Regulations are) which is incompatible with EU law.  I don’t think that the Scottish Courts would find differently from the Supreme Court in respect of section 52 being incompatable with EU law when related to requests under the Scottish EIRs.  In the event that the Scottish Ministers appealed to the Supreme Court it seems unlikely that it would conclude differently (although it should be noted that at least one Justice would have found that Regulation 18(6) did not violate EU law).

Because of the timing of the Supreme Court’s decision, it means that there is little that can be done to prevent disclosure of the information that the Upper Tribunal decided should be disclosed.  The UK Parliament has now prorogued and dealing with the Supreme Court’s decision will require primary legislation. Parliament will be dissolved as soon as we hit 30 March; that means all of he seats will become vacant and there will be no MPs to pass legislation.  The deadline for the Government to comply with the Supreme Court’s decision expires before the election. Therefore, it seems almost inevitable that we will get to see the contents of these letters.

It should be noted that FOIA has been amended to make the correspondence from the Prince of Wales subject to an absolute exemption.  However, that does not affect the position under the EIRs.  The exceptions under the EIRs are different from the exemptions under the FOIA, although they broadly enable the same types of information to be withheld.  What this means though is that it is possible that further letters written by the Prince of Wales which relate to environmental matters may be disclosed in the future.

It is also worth noting that FOISA has not been amended to make the equivalent exemption in respect of correspondence with the Monarch, the heir to the throne or the next in line (i.e. The Queen, Prince Charles and Prince William) an absolute one.  It had been proposed by the Scottish Government, but was dropped.  Therefore, the full range of correspondence between the Prince of Wales and the Scottish Ministers is theoretically obtainable under FOISA and the Scottish EIRs, subject to the public interest test.

Police Service of Scotland and Information Management

Friday 13th is a much disliked date on the calendar and is often said to be unlucky amongst the superstitious.  It would seem that Friday 13th February isn’t turning out to have been a great day for Sir Stephen House, the Chief Constable of Scotland’s national police force.  On 13th February the body that is responsible for holding the Chief Constable to account, the Scottish Police Authority, convened a Special Board meeting to discuss the growing disquiet amongst many groups over the use of stop and search tactics by the Police Service of Scotland (PSoS).  The SPA questioned the Chief Constable and one of his two deputies, Deputy Chief Constable Rose Fitzpatrick on the issue.  Information released by the Scottish Information Commissioner today adds another blow to the Chief Constable in what could be described as a very long round in an extremely long boxing match.

The PSoS has faced a great deal of criticism over its use of stop and search, particularly non-statutory (or “consensual”) searches and especially non-statutory searches on minors under the age of 12.  Last year an undertaking was given to the Scottish Parliament’s Justice committee that the PSoS would effectively ban its officers from undertaking non-statutory searches on minors under the age of 12.  Earlier this month the BBC published a huge volume of data that suggested that this had been ignored on a large scale.

It has transpired that the information was obtained by the BBC under the Freedom of Information (Scotland) Act 2002 (FOISA).  We have learned that this came following an initial refusal by the PSoS to release the data allegedly over concerns as to its accuracy.  When the Chief Constable appeared before the Scottish Police Authority he stated that he had been forced by the Scottish Information Commissioner to release the information.  That, as it turns out, wasn’t quite the case.  The PSoS released the information following external legal advice.  From what is available it suggests that the legal advice obtained by the PSoS advised that not releasing the data risked an adverse decision notice and as a consequence of that, the PSoS released the information to the BBC journalist who had requested it.

FOISA gives a right to individuals to access information held by public authorities in a recorded format.  There is no right in FOISA to be given accurate information, nor is there an exemption in FOISA to enable public bodies to withhold information that is, or is believed to be, inaccurate.  This is not a new thing; it has been the position for some 10 years now.  If a public authority holds information in a recordable format and none of the exemptions in FOISA apply, then a person who asks for that information is entitled to be given it.

If the information is inaccurate that is the public authority’s problem, not the requesters.  If a public authority cannot have in place measures to ensure that the information it is recording is accurate, then that says a lot about the authority.  This whole fiasco has raised some serious questions about information management within the PSoS.  It would seem that police officers have been routinely entering incorrect information into the PSoS systems that record stop and searches.  That is something that must be rectified, and not just from an FOI perspective.  If the information that the PSoS holds is not accurate that will result in a significant knock-on effect across the whole organisation.  It means that everyone, from the Chief Constable down, is working from dodgy information.  Such a situation means that decision-making across the organisation is weakened.

What is even more astounding was the Chief Constable’s admission to the Police Authority that he could not give a 100% assurance over other data held by the PSoS.  That is quite an admission to be made by the Chief Constable to the body that holds him to account.  It casts doubt on the accuracy of all data held by the PSoS; including recorded crime.

FOI here has proved itself rather useful.  We may not be wiser about the extent to which the PSoS is using stop and search in Scotland, but what it has revealed is failings in the ability of the PSoS to accurately record what it is doing.  It has opened up to scrutiny the information management practices of the PSoS and in the furore over stop and search sight should not be lost of what is a significant admission by the Chief Constable of the PSoS.  A debate over the use of stop and search in Scotland still has to be had, but sorting out the apparent mess of the systems used by the PSoS to record data has to feature highly on the list of priorities for the Scottish Police Authority and HMICS.  We cannot have a situation where there is a lack of confidence in the data held by the PSoS.

The cost and burden of FOI…again

The Chief Constable of Surrey Police has gone on the offensive against Freedom of Information on Twitter this evening (and the Assistant Chief Constable of Greater Manchester Police joined in).  It follows a predictable pattern where a public authority (and technically the Chief Constable is the public authority – schedule 1 to the FOIA provides that “A chief officer of police of a police force in England or Wales” is a public authority) complains about the cost of FOI and how it impacts upon the delivery of front line services.

It is a well trodden path which has, over the years, generated lots of discussion in information rights circles.  One of the frequent things to be picked up in these discussions is that, while public authorities are complaining about the cost and burden of FOI, they rarely mention any of the benefits.  Those benefits are around openness, transparency and accountability.

FOI, I can imagine, is probably a right pain in the backside to public authorities sometimes; however, just because it’s a royal pain in the backside doesn’t mean that it is of no value.  FOI is about allowing the citizen to set the agenda on the flow of information.  No longer is the flow of information dictated by what public authorities are prepared to release.  Now, if a member of the public wants to know something, they have the right to be given it if the public authority holds it and there is no good reason for not releasing it.

In times of shrinking budgets, FOI might be seen as an expensive luxury.  However, I would argue that in times of shrinking budgets FOI is all the more important.  As budgets shrink, public authorities have to take decisions about how they spend their ever shrinking budget.  That will often mean cuts to some services (or perhaps withdrawing services altogether).  It allows people who are directly affected by those decisions to go to the public authority and obtain the information that forms the basis of those decisions.  It can help them to understand why decisions have been taken and more importantly can better enable them to challenge decisions where they are perceived to be the wrong ones.

When Parliament drafted the FOIA, it didn’t do so without having any consideration as to the burden that this new regime would have on public authorities.  There are a number of provisions within the FOIA which help to control the burden of FOI.

First, there is section 12 of the Act which sets an appropriate limit on the costs of FOI requests.  A public authority is not obliged to comply with a request where the cost of compliance is estimated to excced the appropriate limit.  For a police force in England and Wales, the limit is £450 (indeed, it is £450 for all public authorities except Government departments or Scottish Public Authorities, where it is £600).  This does only covers certain activities and it is possible for requests to cost more than the appropriate limit in practice and not be capable of being refused under section 12.  This will be because the cost is incurred in an activity which cannot be taken into account in any cost calculations for the purposes of determining whether it exceeds the appropriate limit.

Sometimes, these requests will be the ones where the public interest is finely balanced and the authority is having difficulty establishing just where the public interest lies.  Should such requests be refused because of this?  I’d forcefully argue that they should not.  If it was possible to refuse these requests it would actively work against the public interest: the public might not get information which it would be in the public interest for them to have simply because it is going to take a bit of time for the public authority to work out just where the public interest lies.  However, sometimes the additional cost will be because there is a large volume of information to consider.  While, a request that throws up a large volume of information will often end up breaching the “appropriate limit”,  it is sometimes the case that there is a large volume of information held on a particular subject which is actually relatively quick and easy to locate and extract.  What takes the time then is the applying of exemptions and the conduct of the public interest test.  Section 12 isn’t an option in these requests, because the law doesn’t allow for it to apply.  However, this does bring us on to the next provision of the FOIA which is there to prevent the burden from being too great.

Before I look at that, I thought it would worthwhile pointing out that in terms of section 12 the law has provision within it to ensure that it cannot be avoided.  Simply breaking down a large request into a number of different requests will still likely engage the cost limit: public authorities can aggregate requests from the same individual received within a period of 60 consecutive working days which seek similar information.  So, asking for information on a particular subject over a 10 year period broken down into 5 requests each covering a 2 year period will be aggregated together.  All of the requests will be refused if the cost of complying with all of them is estimated to exceed the appropriate limit.  This provision goes further than that though; it’s not possible to get four of your mates to help you make 5 requests for the information over a 2 year period either.  The law provides that where “different persons who appear to the public authority to be acting in concert or in pursuance of a campaign” the public authority can again aggregate the cost and refuse all of the requests if they exceed the appropriate limit.

The second provision designed to help public bodies with the burden of FOI requests is section 14, which deals with both repeated and vexatious requests.  In terms of repeated requests, if a public authority has complied with a request from someone, they do not have to comply with a request from the same person which is for the same (or substantially similar) information unless a reasonable time has elapsed between the requests.

Vexatious requests are a bit more difficult; however, public authorities have been greatly helped by the decision of the Upper Tribunal in Dransfield (although, Mr Dransfield has appealed this decision to the Court of Appeal).  It is important to note that it is the request, not the person making it, which is vexatious. However, previous correspondence between the requester and the public authority can be relevant.  This provision largely allows public authorities to ignore people trying to use FOI to keep open grievances that have been rumbling on for a long time, especially where they have been the subject of complaints and independent scrutiny.  Section 14 also catches those who are making requests simply to annoy the public authority (quite possibly because of a previous complaint).  However, it can also be used to deal with requests where there is an unacceptable burden to the authority; described as “grossly oppressive”.

This is a higher burden than would be applicable in section 12, but it is an option that is open to authorities where requests produce large volumes of information with a lot of potentially exempt information – especially where those exemptions are qualified ones where the PI might be difficult to determine.  However, the ICO does consider it good practice to go back to the requester before claiming section 14 in these situations – and doing so would probably fall within a public authority’s duty to provide advice and assistance.  So, where a request is overly burdensome and section 14 could be claimed instead of section 12, a public authority should probably go back to the requester and try and work with the requester to refine their request.  Although requesters are not required to (and public authorities are generally discouraged from asking), trying to establish the motive and purpose of the request can help.  Engaging with the requester might save a public authority a lot of time in the long run as it becomes clear that only a tiny proportion of the information that has been uncovered is what the requester is after – the public authority gets to consider a much more refined request and avoids the possibility of an Internal Review and ICO complaint over its application of section 14 (and possibly an adverse finding against it, either in respect of its use of section 14 or its failure to provide advice and assistance).

I note that Surrey Police operates a disclosure log on its website, but that it states it only publishes responses which might have wider interest.  Disclosure logs can be a useful tool for public authorities.  There is an exemption for information which is already reasonably accessible to the requester.  Publishing all responses in a disclosure log on a website might enable public authorities to refuse requests under section 21 of the Act.  This is a quick and simple process that shouldn’t take a huge amount of time.  Most of the time will be spent ensuring that the request isn’t seeking additional information which is not already reasonably accessible to the requester.

This is where the WhatDoTheyKnow website comes into its own – all information released to requesters on that website ends up in the public domain automatically.  Just because it’s not actually published on the authorities own website, doesn’t mean it’s not reasonably accessible to the requester and so section 21 can still be used.  One public authority has even worked with WhatDoTheyKnow to utilise the technology behind WhatDoTheyKnow on their own FOI website, undoubtedly reducing the burden of operating a comprehensive disclosure log.

If public authorities notice trends in their requests, it might be worthwhile proactively releasing the information on a regular basis.  Then the exemption at section 22 is available to the public authority because it is information which is intended for future publication.  This exemption is subject to the Public Interest Test, but there will normally need to be compelling reasons for departing from a set date for publication.  Of course, public authorities would need to consider the cost balance here: is it more costly to routinely publish the information than deal with the FOI requests as they come in?  The UK provision on information intended for future publication is much more generous that the Scottish provision, where it only applies in cases where the intended publication is no later than 12 weeks following receipt of the request.

We often see complaints from public authorities about requests which are bizarre in nature, but as Jon Baines has demonstrated, those apparently bizarre requests do sometimes have a justification behind them.  For the ones that don’t, Tim Turner explains that they can be quickly disposed of.

There are, of course, steps that requesters can take to relieve the burden to public authorities and to that extent I commend Paul Gibbons’ guide to making FOI requests, which includes 10 very good tips for requesters.

A fairly long blog post, so if you have reached this point: thank you and well done!

Useful Links:

ICO guidance on section 12
ICO guidance on section 14
ICO guidance on section 21
ICO guidance on section 22

FOI at 10

On 1st January 2005 the Freedom of Information Act 2000, the Environmental Information Regulations 2004, the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004 all entered into force.  For the first time in the UK people had a right, backed by Statute, to ask for information held by public bodies and to be given that information unless it fell within the ambit of one of the exemptions in the Acts or Exceptions in the Regulations.  Those rights were backed-up by independent regulators who had the power to order public bodies to release information where it had been incorrectly withheld by public bodies.

Today, is of course, the 10th anniversary of the coming into force of those rights and it has become so ingrained into our lives that we probably don’t notice it.  Every year thousands of stories that we see on TV or in the newspapers or hear about on radio have been the result of information obtained under Freedom of Information; much of that information may well have remained hidden had it not been for the rights enshrined in law to obtain that information.

Freedom of Information has been used to uncover scandals around Parliamentary expenses, both in Westminster and in Holyrood.  The late David McLetchie resigned as leader of the Scottish Conservative party following revelations that he had used taxpayers money to pay for taxis used in connection with party, rather than constituency, business.  That information was obtained under Freedom of Information.  At Westminster some politicians have served prison sentences as details of their expenses claims were revealed with help from FOI (and a leak to the Telegraph).

Over the last 10 years, Freedom of Information has become a powerful tool for local and national campaign groups to obtain information from the State as to how and why decisions have been taken.  It has enabled public bodies to be held accountable much more easily and for the public to better understand decisions that have been taken by public bodies.

Of course, FOI has not come without its problems and difficulties.  It does add an additional burden to public bodies – but the legislation does have limits to ensure that the burden doesn’t become too big or disproportionate.  There are individuals who abuse their rights under FOI.  There are a group of individuals who make use of FOI to try and keep open grievances that they have had with the public authority – some of which have been running for many years and been subjected to every form of scrutiny possible.  There are also those who make requests about plans for dealing with a Zombie Apocalypse or how many red pens had been bought.

There have also been regular attempts to undermine Freedom of Information by representative bodies.  These attempts have often cited ‘bizarre’ FOI requests.  Many of these so called ‘bizarre’ requests have a perfectly legitimate basis as explored here by Jon Baines.  The Prime Minister, David Cameron, also has some pretty strange ideas as to what Freedom of Information is.

FOI was a hard won right, with organisations such as the Campaign for Freedom of Information spending decades campaigning for access to information rights.  As a consequence we have some of the best access to information rights in the world.  Our rights are wide-ranging and simple to use whereas in other countries they are restrictive and contain a multitude of technical requirements making them difficult to use while others put the rights out of the reach of ordinary people by requiring fees to be paid in order to exercise those rights.  However, while it is probably true to say that our FOI laws are some of the best in the world it is also true to say that they are in need of serious protection.  As the way in which public services are delivered has changed, a lot of information has fallen out of the scope of FOI.  The regular attacks from bodies representing public authorities also threaten FOI.  These are important rights and it is right that on the 10th anniversary of FOI we remember their importance and how easy it would be for a Government to reduce, restrict or remove those rights.  As a rule, politicians don’t like FOI – it can be embarrassing for them and leads to a much more informed electorate.  A better informed electorate is a good thing, as is removing the Government’s total control  over the flow of information.

The House of Commons Select Committee concluded that FOI ‘has been a significant enhancement to our democracy’ in a report following its post-legislative scrutiny of the Freedom of Information Act 2000.  FOI has changed our democracy for the better, the 10th anniversary is a good opportunity to remind ourselves of how significantly things have changed in the last 10 years as a result of FOI and how valuable it has become.

The Campaign for Freedom of Information fought hard to get FOI onto the statute books and continues to work hard to promote it, campaign for its strengthening and protection; perhaps you would consider donating, even a small amount, to help them with this important work.

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.


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


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.