Today the Scottish Information Commissioner published decision 100/2013, a decision in which I was the applicant. The public authority involved was the Scottish Ministers. The decision explores some of the technical requirements around issuing a notice under section 18 of the Freedom of Information (Scotland) Act 2002.
On 26 January 2012 a request for information under the Freedom of Information (Scotland) Act 2002 was submitted to the Scottish Ministers concerning an issue around the independence referendum that was, at the time, a live issue. The issue concerned whether the Scottish Parliament had the legislative competence to hold a referendum on scottish infependence. The question of legislative competence has been settled by The Scotland Act 1998 (Modification of Schedule 5) Order 2013. The request sought only the identities of those who had provided the Scottish Ministers with legal advice and not the content of that advice.
The purpose of the request was to establish whether the Ministers had received advice on this point and who was providing the Scottish Ministers with advice while considering any public information as to their specialities, thus providing some assistance in understanding the authority of the advice given.
The Minister’s response
The Ministers did not respond to the initial request for information and responded late when a request for review was submitted. Eventually, the Ministers responded refusing to confirm or deny whether they held information within the scope of the request under section 18. They did not specify which exemptions would apply if the information were held.
Section 18 exempts public authorities from complying with the normal duty of confirming or denying whether information is held by it which falls within the scope of the request. It can only be deployed where certain exemptions could apply if the information were held, and where the public interest is in refusing to confirm or deny whether information is held (not only whether it would be in the public interest to maintain the exemption(s) cited if the information were held).
On 16 January 2013 it became necessary for the Scottish Information Commissioner to issue the Scottish Ministers with an information notice in order for her office’s enquiries to progress.
The Commissioner’s Decision
One of the aspects which was raised within the application for a decision from the Commissioner was whether the Minister’s response to the internal review was technically valid. It is upon this question that the Commissioner’s decision centres.
As already stated, the Scottish Ministers cited section 18, but did not state which exemption(s) they considered would apply if the information were held by them. The Minister’s argued that this was not necessary. The application for a decision argued that it was required, and the Commissioner agreed that it was required. Thus, the Commissioner found that the Ministers had not issued a valid response to the requirement for review.
This is a purely technical decision, but it sets out clearly what public authorities must include in a section 18 notice and provides the legislative authority for that position.
Section 18(1) of FOISA specifically states that an authority can, by virtue of Section 18, give an applicant a refusal notice under section 18 where the conditions of section 18 are met; that is that if the information was held certain exemptions would apply and that it is in the public interest not to confirm or deny whether the information sought is held. Section 18(2) goes on to state that section 16(1)(a) or section 16(2) don’t apply when public authorities are issuing refusal notices under section 18.
Section 16 deals with the content of refusal notices and unless the Act specifies otherwise, all refusal notices must contain the information set out in section 16. Section 16(1)(a) requires a public authority to disclose that it holds the information sought (so logically, it is disapplied for section 18 notices as the purpose of section 18 is to neither confirm nor deny whether information sought is held). Section 16(2) is the requirement that the public authority set out in its refusal notice the public interest arguments for and against releasing information where it is applying an exemption under Part II of the Act (i.e. Sections 25-41 of FOISA).
The key part to the Commissioner’s decision is the use of the term ‘refusal notice’ within section 18 to describe the notice that it permits a public authority to issue. A section 18 notice is a refusal notice for the purposes of FOISA. Section 73 of FOISA is the interpretation section and states that “refusal notice” has the meaning given by section 16(1) (including that section as read with section 18(2)).
So, what does all of this mean? Well, simply it means that a notice issued under section 18 must comply with all the elements of section 16, except those specifically excluded by section 18(2) of FOISA. In other words, a notice under section 18 must state the following:
- State that the public authority is applying section 18 [section 16(1)(b)]
- State which exemptions permitted by section 18 would be permitted if the information were held [Section 16(1)(c)]
- State why the exemption applies (unless it is otherwise apparent why the exemption applies) [section 16(1)(d)] – qualified by section 16(3)
In essence any public authority issuing a notice under section 18 of FOISA must state which exemptions permitted by section 18 it considers would apply if the information were held by it.
It would not appear though, from reading the Act (although this point is not specifically covered by the Commissioner’s decision notice), that public authorities are required to justify in their section 18 refusal notice why it is contrary to the public interest to confirm or deny whether information requested is held. However, this may well be a question that the Commissioner would put to the public authority when during any investigation, and it can be argued it would be good practice to state in any section 18 notice the reasoning behind applying section 18 (so long as doing so does not in itself confirm or deny whether information is held). Setting out the reasoning in a section 18 notice could prevent an internal review or an investigation by the Commissioner.