The Freedom of Information (Scotland) Act 2002 (FOISA) provides a right of access to recorded information held by public authorities. Section 1(1) of FOISA says:
A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.
There are exceptions to this general entitlement, found within Part 2 of the Act, but they are not relevant for the purposes of this article.
The general entitlement is the right to information rather than copies of documents, letters etc. What this means is that under FOISA anyone is entitled to be provided the information contained within documents, letters, E-mails, notes etc. unless the information contained within the document is exempt. Where some information is exempt and some is not then the public authority must provide the information that is not exempt if it falls within the scope of a request.
This issue has been considered by the Court of Session in Glasgow City Council and Dundee City Council v The Scottish Information Commissioner 2010 S.C. 125. In essence, insofar as this article is concerned, found that the right that FOISA provides is one to the information contained in the documents rather than the actual documents.
Following the Glasgow City Council case in the Court of Session the then Commissioner, Kevin Dunion, issued guidance to public authorities on information requests and the effect of the Court of Session’s judgment. At paragraph 3.4 of that guidance it states:
Therefore, where an applicant has asked for a copy of a document and it is reasonably clear in the circumstances that it is the information recorded in the document which the applicant wants, the public authority should respond to the request as a request properly made under FOISA. A reference to a specific document is a commonplace way of describing the information sought and can be of assistance to an authority in identifying and locating the information. Such a reference can also benefit the authority by limiting the scope of the information request, e.g. to that contained in a minute of a certain date.
This seems a somewhat reasonable piece of guidance to be issued to public authorities. It would be the common sense conclusion of a public authority when faced with a request for a specific document or set of documents to assume that the requestor wants the information to be found with that document or set of documents. Why else would they be asking for the document if they were not interested in its contents?
As a public authority is not obliged to provide copies of documents and only the information to be found within the document it is not necessary for a public authority to send a copy of the document in question to the applicant. They could summarise its contents or they could copy and paste the content of the document into an E-mail or indeed into another document. When the request is for the entire content of a document then it is often easier for the public authority just to provide a copy of the document in question (and often this is often the basis upon which a response is issued). Where only part of the document falls into the scope of the request then, sensibly, public authorities will usually provide an extract of the document.
There are problems with simply providing summaries of whole documents, or indeed summaries of only parts of documents, rather than the actual content. Applicants are entitled to a complete and accurate version of the information (paragraph 4.1 of the Commissioner’s Guidance). When public authorities start to issue only summaries of documents they run the risk of failing to provide all the information that falls within the request for information. This was demonstrated recently in Mr Tom Taylor and the Chief Constable of Strathclyde Police. In this case Mr Taylor had asked the Chief Constable of Strathclyde Police (“Strathclyde Police”) for copies of certain pieces of correspondence. Strathclyde Police relied on the Glasgow City Council case and supplied only a summary. “This comprised a table specifying the correspondence type, its subject matter, date and the sender and recipient.” (Decision 131-2012, paragraph 3)
The Commissioner found this summary to be inadequate. The decision notice states at paragraph 63:
In his application, Mr Taylor commented that, although the information disclosed in response to request 1 was described as being a summary, he had not in fact been provided with a summary of the information.
The decision notice continued at paragraphs 67 and 70:
In this case, Mr Taylor’s request was very clearly specified, indicating the subject of and the parties to the correspondence of interest to him, along with a period of approximately six months. Given that Strathclyde Police were able to provide a list of relevant correspondence, it is clear that they were able to locate that information. The Commissioner therefore considers that Mr Taylor made a valid request for information for the purposes of FOISA, effectively seeking all information within the correspondence he specified.
By seeking copies of the documents, Mr Taylor made it clear that he wished to receive the information in full rather than a summary or digest. Strathclyde Police’s response neither provided the information requested, nor gave any proper notice to indicate why the information had been withheld.
As a result the Commissioner found that Strathclyde Police had failed to fully comply with Part 1 of FOISA by failing to provide Mr Taylor all of the information that fell within the scope of his request. In this instance it would have been far easier for Strathclyde Police to provide redacted copies of the correspondence while, in accordance with their duty to provide advice and assistance, to refer Mr Taylor to the Glasgow City Council case and advise him that he is entitled to the information contained in documents rather than copies of the documents
The Commissioner has been critical of the way in which Strathclyde Police have handled this request for information. I have been aware of instances where Strathclyde Police have been what can be described as rather pedantic about the way in which it interprets requests and ignores the Commissioner’s guidance. Although, my own personal experience of requesting information from Strathclyde Police is that they have been helpful and I’ve rarely had any real complaint with their responses.
Rosemary Agnew, as the new Information Commissioner, has signalled her agreement with the position adopted by the previous Commissioner when it comes to handling requests for information where the request seeks copies of documents. However, there are a number of ways in which you can avoid receiving responses from public authorities which are nothing other than pedantic.
Mentioning specific documents in requests is a great help to public authorities as it restricts the amount of searching that has to be done in order to locate the information you are seeking. This reduces the chances of getting a refusal based upon the cost of complying with the request and certainly complies with the requirement at Section 8 to describe the information you are seeking. However, rather than asking for copies of documents the Commissioner suggests that you ask for the information contained in a document. For example, a request for “copies of correspondence between X and Y” becomes a request for “the information contained in correspondence between X and Y”. Personally, when I make information requests I will usually ask for the “content” of documents or correspondence.
This decision notice provide valuable guidance for applicants and public authorities. It also serves as a warning to public authorities who might consider responding to requests for information by providing summaries or digests of the information contained within documents.
Freedom of Information (Scotland) Act 2002
Glasgow City Council and Dundee City Council v The Scottish Information Commissioner
Commissioner’s Guidance following Glasgow City Council case
Decision 131/2012 Mr Tom Taylor and the Chief Constable of Strathclyde Police