Last week Rosemary Agnew, the Scottish Information Commissioner, issued another important decision under the Freedom of Information (Scotland) Act 2002 (FOISA). In finding that the Scttish Ministers had breached Section 1(1) of the FOISA by interpreting a request in an unduly restrictive way the Commissioner reminded public authorities that they need to think like the public when considering a request.
In decision notice 122/2012 the Commissioner considered a request for information made to the Scottish Ministers regarding the awarding of a Damehood to Elish Angiolini, former Lord Advocate. The applicant had sought “information on the awarding of (and any proposal to recommend) a Damehood (DBE) to former Lord Advocate, Eilish Angiolini, including the identity of who in the Scottish Government recommended her for the honour.” (Para 1). Following investigation by the applicant, he discovered that there was a difference between “nomination” and “recommendation” in the honours process. The Ministers refused to accept that the applicant’s request was inclusive of both and sought to argue that the applicant was trying to widen his request at this stage. The Commissioner was not convinced.
In her decision, the Commissioner, states that she did “not consider that the distinction between the two [nomination and recommendation] is generally known” (para 19) nor that the applicant “intended to make such a distinction in his request” (para 19). The Commissioner said, also at paragraph 19, that:
It is unrealistic to expect those who make information requests to be aware of the technical or specialised language used by public authorities
The Commissioner also decided that the Scottish Ministers were entitled to rely on Section 18 of FOISA to refuse to confirm or deny whether information was held by them which fell within the scope of the request (on a proper interpretation of the request).
This is one thing that has infuriated me a lot with certain public authorities. When public authorities use words in a different way from the ordinary meaning they should not expect the public to be aware of this and should interpret requests accordingly. If they are unsure as to the meaning of the request (and it is reasonable for them to be unsure) then they always have the option of seeking clarification from the applicant.
This decision is a clear signal to public authorities subject to FOISA that they must not interpret requests in an unduly narrow way based on the technical use of words where the technical use of that word is not commonly known to the public. Common sense should have dictated to public authorities prior to this decision that such interpretations would likely be contrary to both the letter and spirit of the Act.
This is another sensible decision from Scotland’s new Information Commissioner which strengthens the Act and provides strong guidance to public authorities on the practical operation of FOISA.
prout de jure 