OSIC Decision: Mr David Rule and the Scottish Ministers

This decision Notice issued by the Office of the Scottish Information Commissioner considers whether the Scottish Ministers had failed to comply Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA).

The applicant wrote to the Scottish Ministers requesting from the First Minister’s Office all information held within correspondence with named individuals.  The Scottish Ministers did not respond to the applicant’s request and that applicant requested an internal review be carried out under Section 20 of FOISA.  The Ministers did not respond to this request and the applicant applied to the Scottish Information Commissioner for a decision in terms of Section 47(1) of FOISA.  When the Ministers were notified of this application they wrote to the applicant advising them of the outcome of their review.  In that decision the Ministers took the view that the request was not valid in terms of Section 8 of FOISA.  In doing so they relied upon the judgment of the Court of Session in Glasgow City Council and Dundee City Council v Scottish Information Commissioner.  This decision clarified that information requests must describe the information sought.

Unhappy with the Scottish Ministers’ decision the applicant applied to the Commissioner again in terms of Section 47(1) for a decision.  The Commissioner’s decision notice has a number of interesting things contained in it.

In paragraph 9 of the decision notice it states that the Commissioner is satisfied that it would be appropriate to treat the applicant’s E-mail requesting the information not as one single request for information, but rather 19 separate requests for information (one for correspondence between each of the named individuals).

The Decision Notice states in paragraph 9:

[I]t would be wholly artificial (and thus unreasonable) to do otherwise. If valid, each of these is quite capable of standing alone and is in no way dependent on any of the others.

FOISA sets out what is required in order to make a request for information a valid request for information.  This can be found with s.8 of FOISA.  The request must contain the applicant’s name, an address for correspondence and describe the information sought.  The Ministers’ submissions to the Commissioner focussed entirely on s.8(1)(c) of FOISA which provides that the request must describe the information sought.

The Minister’s argued in their submissions to the Commissioner that the applicant’s request was a general request for information held on specific named individuals and did not clearly identify the information that he was seeking.  The Ministers’ contended in their submissions that applying s.8(1)(c) of FOISA and the decision of the Court of Session in the Glasgow City Council case that the applicant’s requests were not valid.

The Minister’s contended that the applicant’s use of the phrase “information contained in correspondence” was too vague and was an insufficient description of the information sought.  The Minister’s further argued that it provided no assistance to them in locating the information held which fell within the scope of the request.

The Ministers’ further submitted that the request gave insufficient information as to allow them to identify the individuals to whom the applicant was referring.  They utilised Linkedin to demonstrate to the Commissioner the number of people as to whom the applicant could have been referring.

In paragraph 15 of the Decision Notice the Commissioner found that the applicant sought all information contained within a specific type of document (i.e. correspondence).  The Decision Notice states at paragraph 15 that:

The Commissioner finds it reasonably clear that the applicant is seeking the information recorded in that type of document. The word “correspondence” provides specification about the type of communication.

The commissioner did not accept the Ministers’ argument that the request must stipulate the subject matter of the correspondence in order to satisfy the requirements of s.8(1)(c).  The Commissioner felt that to do so would run contrary to the overall aim of FOISA, which is to provide openness with the absolute minimum number of formal requirements in order to achieve that aim (paragraph 16).

The Commissioner also noted that some of the names on the list of persons supplied by the applicant were prominent people in the public eye.  This was eventually accepted by the Scottish Ministers.  However, they maintained that some of the names on the list were “exceedingly common and could refer to private individuals or officials in the Scottish Government with those names” (Paragraph 17).

In Paragraph 18 the Commissioner applied a “common sense” approach and took the view that it would be appropriate to interpret the names by way of a common characteristic (i.e. that they were all people of note).  The Commissioner commented that:

It does not appear reasonable to start from the premise that the applicant has constructed a basically random list of subjects, some of whom are public figures and some of whom are not.

The Commissioner referred to the provisions in s.1(3) which relate to seeking clarification when considering what the case might be if there were more than one person with the same name who was of prominence.

The Commissioner found that the requests as submitted by the applicant were valid in terms of s.8(1)(c) of FOISA and required that the Scottish Ministers to review their handling of the requests and notify the applicant of the outcome of that review.

The Commissioner went on to make a number of findings in relation to technical aspects of the handling of the request which relate to the timescales set out in ss. 10(1) and 21(1) of FOISA.

Comment

It does seem rather odd that the Scottish Ministers took the view that the request by the applicant was not valid.  It seems quite clear from the Commissioner’s explanation of the request that it was clear as to what the applicant was seeking.  If the Ministers had been in any doubt as to which particular individual with a name listed within the applicant’s request that the request related to then it was open for them to use the mechanism under s.1(3) of FOISA.  This would have allowed the Ministers to go back to the applicant and ask for further information in order to help them locate what the applicant was looking for.

What is particularly interesting about this Decision Notice was the view that the Commissioner took in relation to the number of requests made.  The Commissioner found that the E-mail sent by the applicant to the Scottish Government was in fact making a separate request for information for each individual listed.  This decision might well assist the applicant in terms of the fees regulations.  Under FOISA no public authority has to comply with a request that is estimated to cost more than £600 to process.  Unlike under the Freedom of Information Act 2000 this £600 applies to all public authorities covered by FOISA and includes the time taken to redact information from documents that is not to be disclosed.

The requests are sufficiently different that it would be hard for the Scottish Ministers to argue that they should be aggregated together whereas if the request was to be considered as one single request rather than 19 separate requests it is quite likely that it would exceed the £600 limit in terms of costs.

The Commissioner also took the opportunity to clarify that FOISA does not entitle people to request copies of documents (a point brought out in the Glasgow City Council and Dundee City Council case), but that any request for documents should be taken to mean the information contained within a document.

The Commissioner’s decision seems entirely reasonable.  It will, I’m sure, provide some clarity for the public and public authorities as to what approach should be taken when a list of names is presented within a request for information under FOISA.  Of course, it is far more sensible to take the time to specify clearly in the request exactly what information is sought.  Taking an extra few minutes to “flesh out” the request to provide as much clarity as possible can save a lot of time in the long term.  Applying to the Commissioner for a decision is a lengthy process.  In this instance the Decision Notice was issued more than six months after the request was submitted.

The Commissioner’s Decision can be read in full by clicking below:

Decision 245/2011 Mr David Rule and the Scottish Ministers

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