In yesterday’s regular ‘decisions round-up’, the Scottish Information Commissioner once again issued warnings about valid FOI requests to public authorities. It has been a theme in recent months that authorities have been refusing requests for documents on the basis of the request not being a valid information request.
It is absolutely correct that the Freedom of Information (Scotland) Act 2002 does not provide a right to copies of documents, but to information. That is clear from Glasgow City Council v Scottish Information Commissioner. However, the Commissioner (both the previous and the incumbent commissioners) have said that a request for copies of documents remains a valid request for information. This is on the basis that section 8 of the FOISA requires that a person adequately describes the information that they are seeking in order to enable the public authority to locate it. There can be no better explanation of the information sought than reference to specific document(s). Such requests hugely reduce the amount of work that a public authority has to do in order to locate the information. Refusal is likely to cost the authority more as appeals to the Commissioner will take up time which could have been better spent simply progressing the request. In the end they’re still probably going to have to process a request, even if it is re-worded slightly, and they will have wasted money on the initial refusal.
As has already been said in this post (and in others on this blog), FOISA does not give people a right to a copy of a document, only to the information contained within it. It would not be very cost effective for the public authority to reproduce an entire document, so it’s likely that in practice an applicant will receive a copy of the document (with any redactions made by the authority) in fulfilment of their request.
Public authorities should only really be refusing requests for non-compliance with section 8(1)(c) where it is not at all clear what information the applicant is actually seeking, not because they’re not familiar with the intricacies of Freedom of Information law. Their ‘advice and assistance’ duty might well mean that when issuing a substantive response to the request that they advise of the right to information and not to documents.
While public authorities should not be refusing requests on the grounds that applicants are not entitled to documents, but rather to the information contained within them, it might be sensible simply to ask for “all the information contained in…” or “the full content of…”; doing so will likely save applicants the frustration of dealing with a pedantic authority acting against the clear advice of the Scottish Information Commissioner.
prout de jure 