Yesterday the Crown Office and Procurator Fiscal Service (COPFS) issued a wholly unsatisfactory response to a request for information made under the Freedom of Information (Scotland) Act 2002.  However, in terms of the law there is nothing that can be done about it.

On 13 August 2011 a request was made to the COPFS for all of the information it had released under FOISA and the Environmental Information (Scotland) Regulations 2004.  The COPFS does not as a matter of routine operate a disclosure log where it makes available the information it has released under the Freedom of Information legislation in Scotland.  This is something that is considered as good practice by the Commissioner, but few authorities actually operate such a log.  The What Do They Know (WDTK) website is a good place to effectively create a disclosure log by default as all responses are made publically available instantly.  It was with this background that the request of 13 August was made.

Unfortunately the COPFS confused this request with a request made for statistics relating to the offence of Hamesucken.  It replied to the latter request, but did not the former.  This mistake was only discovered when a request for review was made under the provisions of FOISA.  On 28 September 2011 the COPFS responded withholding two disclosures it had previously made.

This withholding of information is rather odd as information released under FOI is a disclosure to the public and not just the individual who made the original request.  As can be seen from the response the information was disclosed to the other applicants “exercising their rights under FOISA”.  Thus that disclosure was made to the public at large and not simply those individual applicants.  If personal information is now involved, as the COPFS have advanced, then this must also have been the case at the time of the original disclosure and would therefore have been exempt under FOISA when it was originally requested.  The justification advanced by the COPFS in their substantive response has absolutely no basis in law.  Essentially, once a disclosure has been made under FOISA then the information can’t really then be later exempt in another request.  This is because the information is now considered to be in the public domain.

The problem with this request arises with other provisions within FOISA.  Section 48 of the Act means that the COPFS cannot be investigated by the Scottish Information Commissioner under Section 47(1) – an application for such an investigation would be invalid.  The only exception is where the request relates to information held by them as a result of the Lord Advocate’s position as a Scottish Minister under the Scotland Act 1998.  This request clearly does not fall into that exemption.

The result of this general invalidity of applications to the Commissioner in relation to the COPFS means that there is legally nothing that can be done regarding this request now.  Technically the COPFS response issued on 28 September 2011 is a response to the request for review.  It satisfies the requirements of FOISA to be such.  The COPFS have reached a decision on the initial application.  In the view of the commissioner that is the only option open to an authority where the complaint in a review is a failure to reach a decision on the request.

This creates a problem and it is certainly not a position that works in terms of the spirit of the legislation.  Something really ought to be done to rectify this wholly unsatisfactory situation.  The only options open are to rely on the goodwill of the COPFS to act in a way that is in line with the spirit of the legislation and look again at its decision or to begin involving MSPs to contact the COPFS in the hope that this persuades them to reconsider their decision.  It is certainly hoped that the COPFS will act in a way that could be described as in line with the spirit of the legislation and conduct what would technically be a second request for review without the need to involve elected members of Parliament.

While it is certainly not suggested that the COPFS have acted improperly and tried to consciously withhold information, this situation highlights how they could do so if they wished.  Simply by ignoring a request for information and a request for review they effectively kill the request.  They could of course (and again it is not suggested that they have acted in this way) apply exceptions that would never be upheld by the Commissioner in response to a request for review based upon a technical aspect as a way of preventing disclosure, there being no recourse for the applicant.

This is a situation that cannot be allowed to exist.  The position is wholly out of step with the spirit of the legislation.  There are two key amendments that could be made that would address this issue while keeping the general principles behind the inclusion of the COPFS in s.48.  Those two amendments would be:

1)      To permit the Scottish Information Commissioner to conduct a limited investigation into the COPFS where the complaint is a failure to respond to a request for information and a request for review.  The Commissioner should have the power to issue a decision notice compelling the COPFS to issue a substantive response in the way he can other public bodies subject to FOISA where it is found they have simply not complied with Sections 10(1) and 21(1) of FOISA.  Of course, it’s not practical to have him investigate himself and certainly it would be hoped that the commissioner’s office would never fail to comply with these technical aspects.  In light of this the amendment should only comply to s.48(b) and (c).

2)      To permit an applicant a right to request a second internal review, on the same terms as is currently contained within the Act, where following a request for review into a failure to respond within the required timescales the authority (including the Commissioner) seeks to apply exemptions.  Of course, this would not prevent the authority from deliberately withholding information if it wanted to do so, but would provide a legal route for genuine errors in the application of exemptions to be rectified.

These would be wholly sensible amendments to make to the Act and would not overly burden these public authorities.  It would provide a satisfactory resolution for the situation that is currently in existence based on the way in which the legislation is currently drafted.

The Scottish Government has promised to make sensible amendments to strengthen the Act and it is hoped that these amendments will feature in that Bill when it goes before Parliament during the 2011-12 year.

• Freedom of Information
• Scots Law