Category: FOISA

The importance of FOI training in public authorities

A decision notice published by the Scottish Information Commissioner yesterday (7 March 2013) highlights why it is important that all staff within public authorities have at least a basic working knowledge of the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004.

Decision 032/2013 concerned an information request made to NHS Fife.  The applicant made an information request to NHS Fife on 2 August 2012 to which NHS Fife responded on 5 October 2012.  This represents a significant delay on the 20 working days permitted by section 10(1) of the Freedom of Information (Scotland) Act 2002.  The decision notice does not give any reason as to why it took NHS Fife so long to respond to the information request.

On 18 October 2012 the applicant wrote to NHS Fife requesting a review of their decision.  The request for review was sent directly to a particular member of staff with whom the applicant had been having protracted correspondence.  Unfortunately for NHS Fife that member of staff did not “recognise the significance” of the request for review under the Freedom of Information (Scotland) Act 2002 and consequentially did not take the action required to ensure that NHS Fife was able to respond within the timeframe permitted by section 21(1) of the Act (which is 20 working days).

NHS Fife’s explanation that the member of staff who received the request did not recognise the significance of a request for review under FOISA would suggest that something has went wrong procedurally and most probably around staff training.  All staff within a public authority should be able to spot information requests and requests for review.  Having identified an information request of request for review all staff should know what to do with such correspondence.  When staff are not able to perform these tasks it can lead to problems such as in this case where a requirement for review went unanswered beyond the statutory deadline.  As a consequence an application was made to the Commissioner and a decision notice has been issued.

This decision notice should serve as a reminder as to how important that all staff (whether they routinely deal with information requests or not) should have at least a basic knowledge of information access rights to ensure that public authorities comply with their obligations under the various access regimes.

Stage 1 report on FOISA Amendment Bill

The Scottish Parliament’s Finance Committee has today, 2 November 2012, published its stage 1 report into the Freedom of Information (Amendment) (Scotland) Bill.  The Bill aims to amend aspects of the Freedom of Information (Scotland) Act 2002 (FOISA).

One of the amendments to the Bill has drawn particular criticism from a wide range of people and organisations, including the Scottish Information Commissioner.  The amendment at Section 1 of the Bill would remove the public interest from the “Royal Exemption” (Section 41) in FOISA.  Currently information is exempt if it relates to (a) communications with Her Majesty, with other members of the Royal Family or with the Royal Household; or (b) the exercise by Her Majesty of Her prerogative of honour.  The exemption is currently subject to the public interest test; requiring public authorities to balance the arguments for and against disclosure to arrive at a decision on whether not the public interest in not releasing the information outweighs the public interest in releasing the information.

The amendment at Section 1 of the Bill would remove the public interest test in relation to s.41 where the information relates to communications with (a) Her Majesty, (b) the person second in line to the throne, (c) a person who has acceded to the throne and become second in line to the throne.  Currently, it would mean that correspondence with the Queen and Prince Charles would be exempt under FOISA; even when the public interest would be in the information being released.

This is important, readers will probably be aware of the recent Upper Tribunal decision under the UK Freedom of Information Act which found that it was in the public interest to release certain correspondence between Prince Charles and seven Government departments.  The decision of the Upper Tribunal was vetoed by the Attorney General.  The UK Freedom of Information Act now has the same exemption as is being proposed in Scotland.  The UK amended exemption escaped proper scrutiny as it was added into a Bill late on in the parliamentary process.

The Scottish Government argues that the exemption is needed to bring Scotland into line with the rest of the UK (a rather odd argument for a Government who wants to separate Scotland from the rest of the UK).  However, the Finance Committee were not overly convinced by this argument.  It seems that arguments founded on the public interest fared better with the Committee.  It was argued by many, including Rosemary Agnew, that removing the public interest test was, by definition, against the public interest; a very sensible comment to make.  We know from the Upper Tribunal that Prince Charles likes to lobby Government on matters and that an independent tribunal looking at the correspondence found that it went far beyond “his preparation for the throne”.  Arguing for a removal of the public interest test with that as a background doesn’t help your arguments very much.

On other areas of the Bill the Committee was more supportive of the Government position.  The proposed extension of the Section 18 “neither confirm or deny” exemption to cover personal information is an uncontroversial one.  There are very good reasons as to why public authorities would not want to reveal that they hold personal information about an individual.  However, it should not become the standard response when a person asks for their personal information, wrongly, under FOISA.  Section 18 should be used rarely and only when absolutely necessary.  The fact that Section 18 comes with its own public interest test should mean that it is only used when necessary.

The proposed amendment to the “information otherwise available” exemption is uncontroversial as well and simply clarifies the current exemption.

The Bill doesn’t deal with the extension of FOISA to bodies not already covered.  However, a number of people provided written submissions and other evidence to the Committee on this point anyway.  It is an important point.  The way in which public money is spent and public services re delivered has changed drastically since 2002 (when FOISA was passed by the Scottish Parliament).  While there have been some amendments to the list of Scottish Public Authorities (primarily through primary legislation which has created, closed or merged public bodies) the Scottish ministers have never used their powers to designate new public authorities.  As more and more is being spent and delivered by Arms Length External Organisations (ALEOs) it is important that these ALEOs are subjected to FOISA.  We also have a great number of private enterprises performing public services and these organisations fall outside of FOISA.  Information access rights have been damaged and reduced over the years and the Government has made no real attempt to ensure that the position is restored to what it was in 2002 and 2005.

The Scottish Government has, thus far, refused to use this Bill as an opportunity to at least restore information access rights to their 2005 level and has also refused to use the Bill to extend rights to other organisations.  In my written evidence to the Committee I suggested that organisations such as the Law Society of Scotland and the Faculty of Advocates (insofar as information is not held for the purposes of representing their members) and COSLA should be covered by FOISA.  The Committee has invited the Government to bring before it a timetable for extending information access rights in FOISA to other organisations and details of any amendments to the power to designate.  The Committee has said that it will reconsider its position on this issue when the Bill comes back at Stage 2.

Information access rights are important and vital to the Scottish people.  It is important that this Bill makes the rights work better for people.  On the whole I do support this Bill but do think that it could go much further and is a bit of a wasted opportunity.  I hope that the Scottish Government rethink their position on Section 1 of the Bill and decide to either tighten it up considerably or, better still, remove it entirely from the Bill.

A waste of money? The Scottish Government’s EU advice FOI appeal

The independence referendum coverage has been polarised on one issue lately: the position of an independent Scotland in the European Union.  This issue really came to the forefront of the political discourse following the Deputy First Minister’s statement last week which confirmed that the Scottish Government had not yet commissioned detailed advice on this question. This came in the context of a Freedom of Information request made by Catherine Stihler MEP of the Labour Party.

The debate that has ensued following the Deputy First Minister’s revelations and ignores the finer details of the Freedom of Information request and FOI law.  Ms Stihler had sought from the Scottish Ministers the legal advice they had received on the position of an independent Scotland in the European Union.  The Scottish Ministers had refused to confirm or deny the existence of the information pursuant to Section 18 of the Freedom of Information (Scotland) Act 2002 (FOISA).  To cut a very long story short Ms Stihler eventually appealed to the Scottish Information Commissioner who found that that the Ministers were not entitled to rely on Section 18 of the FOISA.  The Scottish Ministers initially appealed this decision to the Court of Session, but later dropped that appeal.

When it was revealed that the Ministers had not sought advice there were instant accusations of the Scottish Ministers wasting taxpayers’ money.  Those accusations related to the fact that the Scottish Ministers had went to court to protect advice that didn’t even exist.  This entirely ignores the purpose of Section 18 of the FOISA.

While it was frustrating that the Scottish Ministers decided to appeal the decision and while I personally considered the Commissioner’s reasoning in her decision to be correct and flawless, it was the right of the Scottish Ministers to appeal the decision.  The fact that the information did not exist is irrelevant.  That comes from the wording and purpose of Section 18 of FOISA.

Section 18 of FOISA provides:

(1)Where, if information existed and was held by a Scottish public authority, the authority could give a refusal notice under section 16(1) on the basis that the information was exempt information by virtue of any of sections 28 to 35, 39(1) or 41 but the authority considers that to reveal whether the information exists or is so held would be contrary to the public interest, it may (whether or not the information does exist and is held by it) give the applicant a refusal notice by virtue of this section.

(2)Neither paragraph (a) of subsection (1) of section 16 nor subsection (2) of that section applies as respects a refusal notice given by virtue of this section.

What does this mean?  Well, put simply it means that where a public authority believes that to reveal whether particular information is held (or not held) is contrary to the public interest it can issue a refusal notice under Section 18.  The public authority is not required to comply with the ordinary requirements of FOISA to confirm whether the information is held (and either release it or issue a refusal notice under Section 16 of FOISA) or whether it is not held (and issue a refusal notice under Section 17 of FOISA).  For section 18 to apply the public authority must be satisfied that if the information did exist that it would be exempt under certain exemptions of FOISA.

Section 18 has successfully been deployed, for example, where a police force was asked for information about a particular investigation.  It was found to be contrary to the public interest to reveal whether the information was held or not.  It was also successfully deployed by the Scottish Ministers in relation to an information request relating to the honours process.

There is very little in the way of case law from the courts in relation to the FOISA.  More than 1,500 decisions have been issued by the Office of the Scottish Information Commissioner since FOISA entered into force in 2005, but there are only about half a dozen reported appeals to the courts.  None of these have been in relation to Section 18.  In terms of the operation of FOISA it would have been particularly helpful to have had a considered judgment from the Court of Session (perhaps even the United Kingdom Supreme Court if it had gone that far) on the application of Section 18, especially given the nature of Section 18.  Undoubtedly the Scottish Ministers would have raised the Ministerial Code issue and it would have been very helpful to have had judicial consideration of the relationship between the Ministerial Code and FOISA.

On the issue of legal advice and FOISA, it is generally accepted that there is a strong public interest in public authorities being able to obtain legal advice and for that advice to remain protected.  The public interest in its release has to be particularly strong before it will be released.  There are few examples of the Scottish Information Commissioner or the UK Information Commissioner ordering the release of legal advice.  Where the public interest rested in respect of legal advice must, as with all FOI requests, be judged on a case-by-case basis as request are received.  Advice that has previously been protected under FOISA might later be released as a result of a subsequent request for information if the public interest balance shifts.

Section 18 is an important exemption; sometimes to reveal whether information exists or not is simply not in the public interest.  There has to be an exemption for that situation when it arises (although it should arise rarely).  Public authorities must be free to appeal a commissioner’s decision regardless of whether the information exists or not.  I am actually disappointed that this case never actually made it to court because we are lacking vital judicial guidance on both the application of Section 18 of FOISA and on the relationship between FOISA and the Ministerial Code.  By all means attack the SNP for appearing to make assertions which were not based on any legal advice, but don’t attack them for exercising their statutory right to appeal a decision of the Commissioner to the Court of Session.  That does not help the cause of FOI one bit.

We can now deny that

I have written often on here about a Freedom of Information request made to the Scottish Ministers by Labour MEP Catherine Stihler.  You can read the history of this request here, here, here and here.

Today, Deputy First Minister Nicola Sturgeon MSP made the embarrassing confession that there was no legal advice on the position of an independent Scotland in the European Union.  The Ministers were ordered by Rosemary Agnew, the Scottish Information Commissioner, to reveal whether they held such advice and until today the Ministers refused to comply with that order.  They had lodged an appeal in the Court of Session which was due to be heard on 18 and 19 December 2012.

Taking a case to the Court of Session is not cheap; it’s really rather expensive.   The Ministers have wasted Government money and indeed money from the Office of the Scottish Information Commissioner by pursuing an appeal that aimed to keep secret that they had, until now, been lying to the Scottish people.  The very clear implication of the statements made to Parliament prior to today was that the Government had received advice and it was from that advice they were making their assertions.

The Scottish Ministers have said that the white paper will be informed by the advice they have received, but given that we know they’ve given an impression they had advice when they did not, can we really trust what this Government is saying on this vitally important issue?  Is the position of the Scottish Government simply going to be on what Alex Salmond has decided is the case rather than on any concrete evidence?  Of course, we’re unlikely to see any legal advice the Government ever actually receives because of Legal Professional Privilege so we have to go on trust and today the SNP will have, undoubtedly, lost some of the trust that the Scottish people had in them.

I still await a decision from the Commissioner on my request to the Ministers on whether they received advice over the competence of the Scottish Parliament.  A somewhat moot point now that a Section 30 order is to be made.  However, it does remain an important one in light of recent events.

Scottish Information Commissioner’s Decision 111/2012 – Catherine Stihler MEP and the Scottish Ministers

Validity of Information requests: Copies of documents or Information

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

Technical meanings and Information Requests

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.

Private companies and FOI: The G4S failure

The failure by G4S to meet its contractual obligations over providing security staff for the Olympics has brought into sharp focus its role in providing public services.  G4S has a number of public sector contracts including running prisons and being responsible for prisoner transport in a number of areas.  There has, in recent days, been a focus on to what extent these private companies are accountable to the public.  To what degree can councils and other public bodies hold them to account?  How well are they holding them to account?

As the public sector continues to face huge budget cuts and a continued need to save money huge public sector contracts are being offered out to tender and G4S are poised to take many of those contracts.  In England and Wales the private sector is becoming more and more involved in the NHS following the passing of the Health and Social Care Act 2012.  With these big companies having more and more responsibility for providing services which the public rely on and the State has traditionally provided, these questions of accountability are only going to become greater.

If we can learn one thing from the debacle over Olympic security and the failure of G4S is that proper scrutiny is required.  Public bodies (and more importantly the public) should be able to better understand where and how public money is being spent.

There is an argument for these private companies to become directly accountable to the public.  The public cannot elect the officers and executives of the companies in the way they elect Council’s and Governments.  There must be some other way of holding public bodies to account.

It’s not all that popular, but making private companies accountable to the public through Freedom of Information would be an option.  It’s not unheard of though.  There are private companies to whom you can request information from that you might not expect.  For example, anyone who provides certain NHS services under the relevant National Health Service legislation (currently the National Health Service (Scotland) Act 1978; National Health Service Act 2006 and National Health Service (Wales) Act 2006) is subject to FOI.  This currently covers NHS pharmaceutical and Optometry services.  In theory this means everyone from the independent pharmacist/optician to the big providers such as Boots and Tesco are covered by the Freedom of Information Act 2000 and Freedom of Information (Scotland) Act 2002.  They are only covered in respect of their NHS pharmaceutical and optometry services.  You couldn’t, for example, as Tesco what expenses their Chief Executive spent in June 2012 were under FOI (well you could, but as it’s not covered you’re unlikely to get a response).

There are other examples of organisations only being partially covered by the Freedom of Information legislation.  The BBC and Channel 4 are two good examples.  Both are covered, but not in respect of information held for the purposes of “journalism, art or literature”.  Partial cover of an organisation isn’t a problem.

The problem with covering private bodies by FOI is a more technical problem.  What would the appropriate limit be under the fee regulations?  Would it be £450 or £600?  Would it be something different?  Would it depend upon who the contract was with?  What about the application of fees?  Would a private body like G4S be more likely to issue fee notes when the estimated costs exceeded £100?  If they were, it might mean they are simply as unaccountable as they are now.

As the way in which public money is spent changes and as the delivery model of public services also changes it is necessary that the principles of accountability and scrutiny move with them.  There is certainly a strong argument for bodies providing public services (especially large ones like G4S) to be covered by FOI.  The question, in my view, is not a “should they” one, but rather a “how do we” one.

I’m sorry, we can’t confirm or deny that (Part 4)

On Tuesday the Scottish Information Commissioner published her decision on an application by Catherine Stihler MEP pursuant to s.47(1) of FOISA.  The background to this decision can be found here, here and here.

On 12 July 2012 the BBC were reporting that the Scottish Ministers intend to appeal Rosemary Agnew’s decision.  It is a groundbreaking decision by Rosemary Agnew and forces the Ministers to reveal whether they have recieved legal advice on a specific point.

The BBC quote a Scottish Government spokesperson as saying:

It is the longstanding and usual practice of the Scottish government to neither confirm or deny the existence or the content of legal advice.

It is certainly their longstanding and usual practice to neither confirm or deny the existence or content of legal advice recieved by the Ministers.  However, the Freedom of Information (Scotland) Act 2002 requires each request to be considered on its own merits.  In effect, the Scottish Government are suggesting that the existence of legal advice recieved by the Ministers should be neither confirmed nor denied in all circumstances.  Section 18 is clear in its terms and subsection (1) reads:

Where, if information existed and was held by a Scottish public authority, the authority could give a refusal notice under section 16(1) on the basis that the information was exempt information by virtue of any of sections 28 to 35, 39(1) or 41 but the authority considers that to reveal whether the information exists or is so held would be contrary to the public interest, it may (whether or not the information does exist and is held by it) give the applicant a refusal notice by virtue of this section.

The critical element of s.18(1) is that it must be contrary to the public interest to reveal whether the information exists or not.  The public interest must be considered in every request and on occassion it might be found that it is not contrary to the public interest to reveal whether the Ministers have recieved legal advice on a specific matter.

The Commissioner took the view on this occassion that the public interest was in the Ministers confirming or denying whether they held information falling within the scope of the request.  The Ministers cannot rely on the fact that they would normally rely on s.18 in these types of cases.  They need to demonstrate to the Commissioner (and they failed this time) that the public interest lies in not revleaing whether the information is held or not by them.

Appeals to the Court of Session are permitted only on a point of law.  That means the Ministers can only challenge the Commissioner’s decision on the grounds that she erred in her interetation and application of the law.  The Ministers cannot set out to prove the Court of Session that the public interest lies in favour of neither confirming nor denying as that is an issue of fact.  The Ministers would have to demonstrate that the Commisisoner’s understanding of the law was wrong and that resulted in her making the wrong decision.

Of course, the Ministers could simply be deploying a delaying tactic here.  The Ministers have in the past appealed to the Court of Session and then later withdrawn the appeal before it was heard by the Court.  In July 2011 the Ministers did not pursue an appeal that they had lodged over a decision by the then Commisisoner, Kevin Dunion.  The Commissioner had ordered the release of information held by the Scottish Ministers regardig their plan for a local income tax.  The decision that releated to had been issued in February 2011.  More information on that particular case can be read here.

In essence, the Ministers appear to have an uphil struggle.  The fact that it is their normal practice to deploy s.18 in these requests is unlikley to be accepted by the Court of Session because that runs contrary to both the letter and the spirit of FOISA.  Every request must be considered on a case-by-case basis.

Less than three months into the job it appears as if Rosemary Agnew has a Court of Session case on her hands.  Few decision notices are ever appealed.  That is likley to be for a number of reasons.  Firstly, appeals are on a point of law only.  It is not possible simply to appeal because you disagree with the Commissioner’s decision on a factual basis.  Secondly, it is almost impossible for a member of the public to appeal.  It simply costs too much to go to the Court of Session and applicants are handicapped because they don’t get to see the information that the Commssioner’s office recieved during the investigation.

It doesn’t appear as though the Scottish Ministers have actually formally lodged documents with the Court of Session yet, but they do still have more than a month until the deadline to appeal.

This is certainly an interesting development and one to be watched closely.

I’m sorry, we can’t confirm or deny that (Part 3)

The Scottish Information Commissioner has published her decision on an application under s.47(1) of FOISA by Catherine Stihler MEP.  Rosemary Agnew, the Commissioner, decided that the Scottish Ministers were wrong to refuse to confirm or deny whether they held legal advice on the position an independent Scotland would be in with regards to EU Membership.

I have written about this request before and sought from the Ministers, under FOISA, the correspondence between the applicant and the Ministers on this request prior to it going to the Commissioner (i.e. the request and response as well as the request for review and the Minister’s response).

Section 18 of FOISA provides that a public authority can refuse to confirm or deny whether it holds information sought in an FOI request where the public authority is of the view that the public interest is best served by this level of secrecy.  It has previously been successfully deployed, for example, by police forces to not confirm whether it holds information in relation to a particular incident that may or may not be a crime and the Scottish Ministers in relation to the honours process.

In this latest decision, the Commissioner agreed that two exemptions would apply to the information if it were held.  The Commissioner was satisfied that s.29(1)(a) of FOISA applied and also that s.30(c) of FOISA applied.  However, this is not the end of the story.   Both of these exemptions are subject to the public interest and the Commissioner had to then consider where the public interest would lie in each of these cases.  The Commissioner found that the Ministers could provide a refusal notice in terms of s.16 because the public interest would likely favour maintaining the exemptions.

Ordinarily that would be the end of the matter.  However, s.18 adds a further public interest test into the equation. This is the public interest in refusing to confirm or deny whether the information is held by the Ministers.  At paragraph 52 of her decision notice, the Commissioner states:

“In this case, whilst the Commissioner has concluded that, if the advice existed and was held by the Ministers, they would have been entitled to issue a refusal notice under section 16(1), the Commissioner considers that it is in the public interest to know the type of information that the Ministers were taking into account in developing policy in relation to such a significant issue as independence.”

At paragraph 53 the Commissioner continues by stating that:

“Ms Stihler’s request was made at an early stage in the Government’s development of its policy in relation to Scotland’s potential membership of the EU. Nonetheless, the Commissioner considers there is a strong public interest in allowing the public to understand the process by which this policy would be formulated.”

The decision notice concludes by finding that the Commissioner is “not satisfied in this case that it would be contrary to the public interest for the Ministers to reveal whether the legal advice requested by Ms Stihler exists or is held by them”

This decision notice is unlikely to result in the Minister’s advice on the matter actually being published.  It is clear that the Commissioner is likely to consider it exempt from disclosure.  However, what it does do is force the Ministers to confirm whether they have actually sought proper legal advice on the subject or whether they are, as some suggest, simply making it up as they go along.

This decision is vitally important because the Scottish Government had tried to put a cloak of secrecy around what information they had which has developed their policy position on Scotland’s membership of the EU.  If it transpires that a Section 17 notice (information not held) is issued rather than a notice under s.16 (a refusal notice) it could be politically embarrassing for the SNP and call into question their credibility on the subject.

However, I find it highly unlikely that a s.17 notice will be issued.  I do not think that the Ministers have been arguing their position without having any legal advice.  Whether that advice actually supports their position or not is a matter that we are unlikely to ever know.  Of course, this decision notice does not preclude the Commissioner from deciding in the future that the information should be disclosed.  The Commissioner’s office will never have seen any advice that the Ministers hold because she was not being asked to decide on its disclosure her, only whether the Ministers were right to refuse to confirm or deny.  Once Ms Stihler has received the response ordered by the Commissioner she could seek a further internal review of a refusal to disclose and ultimately apply to the Commissioner again under s.47(1).  Once the Commissioner sees the actual information she might change her mind as to where the public interest actually lies.  The indications on that question in this decision notice are only indications.

This decision notice brings hope to an application that I currently have with the Commissioner which seeks a list of those who have provided legal advice to the Scottish Ministers on the competence of the Scottish Parliament to hold a referendum on independence within the current devolution settlement.  As with Ms Stihler’s request, the Ministers have refused to confirm or deny whether the information is held or not.  Currently, the Ministers are being asked for further submissions (having already provided two sets of submissions to the Commissioner) on their reliance on s.18.

Of course, the Ministers could appeal the Commissioner’s decision to the Court of Session arguing that the Commissioner has erred in law in her decision that the Ministers were not entitled to rely on s.18 to refuse to confirm or deny whether information falling in the scope of Ms Stihler’s request.  The Ministers have 28 days from 6 July 2012 to decide whether to appeal or not and have until 21 August 2012 to comply with the decision if they decide not to appeal.

Scottish Information Commissioner tackles University’s FOI failings

In February 2012, representatives of the Scottish Information Commissioner conducted an assessment of the University of the Highlands and Islands (UHI) and its compliance with the codes of practice issued under sections 60 and 61 of the Freedom of Information (Scotland) Act 2002 (FOISA).  Almost every month the Commissioner’s assessment team visits a public authority in Scotland to assess its compliance with codes of practice.  Public authorities will be chosen for a variety of reasons.  The Commissioner decided to assess the UHI’s practice for a number of reasons, including that she had received no applications for a decision under s.47(1) of FOISA.

The report into that assessment made for grim reading.  It revealed a poor level of compliance with FOISA including some 54 requests that had never received a response from the UHI and were considerably overdue (see paragraph 13 of the report).  The report identified significant issues around the compliance with Section 1 of FOISA (the general right to receive information requested).  This failure alone should have resulted in a significant number of applications under s.47(1) for a decision on the UHI’s technical compliance and is just one reason why it is surprising that the Commissioner had received no applications regarding the UHI.

Paragraph 39 of the report stated that in an internal audit report, it was noted that the UHI had taken an informal approach to handling requests for information.  The UHI had no policies or procedures in place on FOI.  The UHI had inadequate systems in place for logging, tracking and monitoring requests for information.  Where such records were recorded they were basic and there was concern over how comprehensive the records were.

I won’t go through every single failing identified by the Commissioner’s assessment team.  The above should give some flavour of what is contained within the assessment report and it is publically available for anyone to read.  In essence, the UHI was completely failing to comply with the basic technical requirements of FOISA and the codes of practice.  It is incomprehensible how the Commissioner had never received an application about an organisation with such poor compliance of FOISA.

The Practice Assessment resulted in the Commissioner taking the unusual step of issuing a Practice Recommendation.  Since FOISA came into force on 1 January 2005 only one other Practice recommendation has been issued and that was in July 2010 to the Scottish Borders Council.  Under s.44(1) of FOISA the Commissioner can issue a Practice Recommendation if she considers that a public authority is not complying with the Codes of Practice issued by the Scottish Ministers under ss.60 and 61 of FOISA.  The previous commissioner took the view, and certainly the new Commissioner appears to have adopted the same view, that such a step should only be taken when a serious and systematic failure to comply with the Codes is found.

A Practice Recommendation t is not enforceable through the courts.  However, if a public authority fails to comply with it in a reasonable timescale, the Commissioner can issue an Enforcement Notice under s.51 of FOISA.  Such a step is much more formal and can be enforced by the Commissioner making a written statement to the Court of Session under s.53 of FOISA.  If the Court of Session were to agree that the public authority has failed to comply with an Enforcement Notice, it can deal with the public authority as if it were in contempt of court.  To my knowledge, the Scottish Information Commissioner has never issued an Enforcement Notice.

As an alternative to an Enforcement Notice the Commissioner could produce a report on the public authority’s failures and lay it before the Scottish Parliament under s.46 of FOISA.

Hopefully the UHI will work closely with the Commissioner and her staff to improve their practice around FOI and that no further action will need to be taken.  Such basic and fundamental failures in the compliance with FOI seven and a half years after it came into force are of great concern and it is quite inexplicable how the UHI were able to go for so long with such basic and fundamental errors in its compliance unnoticed.  As a wider issue, I do hope that if any other public authorities are failing in the same ways as UHI are that they will take note of all the publically available material on the Commissioner’s website, including the assessment of and recommendations to the UHI.  There really is no excuse for a public authority in 2012 to be failing in the ways that the UHI were.

There are a number of documents which the Commissioner has produced in relation to the UHI arising out of the assessment in February.  They are all linked to below:

Assessment Report – University of the Highlands and Islands
Action Plan – University of the Highlands and Islands
Practice Recommendation 01/2012 – University of the Highlands and Islands