Category: Freedom of Information

Princes, letters and Freedom of Information

Yesterday the Court of Appeal issued its judgment in the continuing saga that is the bid by Guardian Journalist Rob Evans to obtain the information contained in a variety of letters sent by HRH Prince Charles, the Prince of Wales to a number of departments of Central Government between 1 September 2004 and 1 April 2005.

The saga has been a long one in which the Information Commissioner agreed with the Government. However, the Upper Tribunal disagreed and ordered a number of the letters to be released. The Upper Tribunal found that the letters fell into two categories: those which were about the Prince of Wales preparing to become Monarch and those which were him advocating in respect of causes which were close to him. It was this latter category of letters that the Upper Tribunal found after determining that they were not covered by the constitutional convention which provides that the heir to the throne be educated in Government business in order to prepare him (or her) for becoming King (or Queen) and that correspondence pertaining to that be confidential and not be released.

After the Upper Tribunal issued its decision the Attorney General issued a certificate under section 53 of the Freedom of Information Act 2000 (FOIA) which sets aside the decision of the Upper Tribunal. Mr Evans judicially reviewed that decision and the Administrative Court upheld the certificate. Mr Evans then appealed to the Court of Appeal which quashed the Attorney General’s certificate.

There are two separate issues to the certificate. The first one that I shall deal with here, is the EU dimension to the case. Some of the information contained within the letters amounts to Environmental Information which falls to be governed by the Environmental Information Regulations 2004 (EIRs). Those Regulations exists to transpose into domestic law a EU Directive on access to Environmental Information which in turn exists to bring into EU law the provisions of the Aarhus Convention. Therefore the principles of EU law apply to the Environmental Information and the domestic law cannot be incompatible with it. In its judgment the Court of Appeal held that the existence of the veto was incompatible with EU law. This effectively means that the veto contained in section 53 of the FOIA cannot be used in respect of information which is environmental in nature (as defined by the Directive and the Regulations).

The Directive which the EIRs transpose into domestic law provide that there should be an independent and impartial tribunal to decide upon whether a public authority has complied with its obligations, and that the decision of this independent and impartial body must be final. The EIRs have, by virtue of the application of the FOIA, an extensive appeals structure which begins with a complaint to the Information Commissioner and subsequent appeal to a specialist tribunal followed thereafter by appeals on points of law potentially all the way to the Supreme Court. While there is no single independent or impartial tribunal whose decision becomes binding, at some stage a decision will be made by an independent or impartial tribunal which is final and binding upon the public authority. However, by virtue of section 53 of the Freedom of Information Act, it can be side-stepped by someone within the Executive (in this case the Attorney General). The Divisional court, in its decision, held that the existence of the right to judicially review the decision to issue a certificate under section 53 of the FOIA. However, the Court of Appeal disagreed. The Master of the Rolls said at paragraph 55:

A judicial review of the certificate of an accountable person is substantively different from a review by a court or other independent body of the acts or omissions of “the public body concerned”. The focus of the two reviews is different.

The Court of the Appeal was of the view that as judicial review was focussed on the act of the person who issued the certificate, rather than on the public authority’s compliance with the EIRs, it was in breach of the requirements of European law; therefore it was unlawful.

The Court of Appeal also considered the Attorney General’s use of the ‘veto’ under section 53 in respect of the information contained in the letters which was covered by the Freedom of Information Act. The Court held that in order for a section under section 53 to be valid, it had to be based on reasonable grounds. The Court of Appeal decided that for the grounds to be reasonable there would have to be something more than simply disagreeing with the decision. The Master of the Rolls gave some examples of what ‘something more’ might mean in paragraph 38 of the Court of Appeal’s decision:

a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law.

Such an interpretation of the law clearly significantly affects the power of ministerial veto and its effectiveness. It is also clearly against the intention of Parliament when it passed the Freedom of Information Act. The veto was placed in the Act by the Labour Government that passed it as a central element of the Act – something to act as backstop to protect central government from inappropriate releases. It was intended to place central Government in the position of being the final arbiter of what central government information is released under FOI. It is a constitutional aberration as described by both the Divisional Court and the Court of Appeal, but that is what Parliament determined when it passed the law with section 53 in it.

The Court of Appeal quashed the Attorney General’s certificate which makes the Upper Tribunal’s decision requiring release of certain letters effective again. It held that his certificate was unlawful in terms of all of the information it was intended to cover. This is certainly a key judgment and is very interesting. It engages with some important issues in respect of the ministerial veto, and it is a Court of Appeal decision. However, as much as I agree in principle with the Court of Appeals decision, I think in terms of the legal matters I suspect that it is vulnerable to being overturned, at least in part, on appeal.

I am of the view that the Court of Appeal’s decision should be treated with a bit of caution. In respect of the application of the veto on Environmental Information, the Court of Appeal’s decision appears to be entirely correct. The existence of the veto does not sit well with the requirements of the Directive and is most probably unlawful in terms of European law. However, I suspect that the Court of Appeal has fallen into error in its interpretation of section 53 insofar as it relates to information covered by the Freedom of Information Act. The veto was clearly intended to be used in the way the Attorney General used it when passed by Parliament. It was Parliament’s clear will and it would be inappropriate to read things into the legislation that as so clearly against the will of Parliament.

The Attorney General has been given permission to appeal the Court of Appeal’s decision to the Supreme Court and it will be interesting to see what the Supreme Court has to say. I suspect there will be a great deal of discussion around the meaning of the words ‘reasonable opinion’ in section 53.

Beggs v Scottish Information Commissioner and Strathclyde Police

In the world of Freedom of Information in Scotland decisions of the Court of Session are rare, and on 21 January 2014 the Court of Session delivered its decision in the case of Beggs v Scottish Information Commissioner and the Chief Constable of Strathclyde Police.

Background

Mr Beggs wrote to Strathclyde Police on 7 July 2010 to request information from the Chief Constable concerning the investigation into a murder for which he was convicted in 2001. The way in which Strathclyde Police had handled the request was considered by the Commissioner in decision 88/2011 in which the Commissioner required Strathclyde Police was required to carry out a review of certain aspects of Mr Beggs request. It should be noted that throughout the Commissioner’s decisions, Mr Beggs is known simply as ‘Mr G’. Following that review, Mr Beggs applied to the Commissioner again for a decision in terms of section 47(1) of the Freedom of Information (Scotland) Act 2002 (“FOISA”). The Commissioner duly investigated that application, and that resulted in decision 251/2011 in which the Commissioner found that Strathclyde Police were correct to withhold the information under section 34(1) of FOISA and that they did not hold any further information in respect of parts of the request.

Mr Beggs appealed the decision to the Court of Session under section 56 of FOISA, such appeals can be on a point of law only (which is one of the ways in which FOISA differs from the Freedom of Information Act 2000 which covers UK public authorities).

The Exemptions

The exemptions cited by Strathclyde Police were contained in section 34 and section 35 of FOISA, both of which are exemptions which are subject to the public interest test; that is, the exemptions fall away where the public interest in maintaining the exemption is less than or equal to the public interest in releasing the information.

Arguments by Mr Beggs

Mr Beggs sought to argue that the Commissioner had erred in law in respect of his consideration of the public interest. Counsel for Mr Beggs argued that the interpretation and application of the public interest was a matter of law. Counsel for Mr Beggs argued that in respect of the various public interest factors which were considered by the Commissioner were not given the appropriate weight to them; that is, some of those factors ought to have been given a greater weight by the Commissioner than they were.

Sections 34 and 35 of FOISA clearly exist to protect the interests of justice; they exist to prevent information being released that might harm law enforcement and the judicial process. Counsel for Mr Beggs argued that following the conclusion of a trial the level of force that protecting these interests have diminishes after the trial. It was also argued that by focusing on generalised factors, and by not giving consideration to the specific circumstances in this case, the Commissioner had erred in law.

Arguments by the Commissioner

In respect of Mr Beggs’ arguments relating to the weight that the Commissioner ought to apply to the various public interest factors, the Commissioner argued that an error of law would not arise unless it could be shown that it was perverse or irrational. Counsel for the Commissioner argued that no such evidence had been given. Counsel for the Commissioner argued that smply because they were general didn’t meant that they were not relevant, and that Mr Beggs had placed before the Commissioner no specific arguments himself.

In responding to the reduction of the weight to be attached to the exemptions, Counsel for the Commissioner pointed to section 58 of FOISA which makes provision for some expiations “falling away”; in respect of section 35, FOISA provides that the exemption continues to apply for a period of 100 years.

Decision of the Court

The Court dismissed Mr Beggs’ contention that the Commissioner had failed to give sufficient weight to the various factors in this case. The Court sets out the detail in which the Commissioner sets out the reasons for his decision and concludes that there was nothing perverse or irrational. The Court stated at paragraph [15] that:

this ground of appeal amounts to is that the appellant does not agree with the weight which the Commissioner has attached to the various factors before him. Such disagreement as to weight, in the absence of perversity or irrationality, does not amount to an error of law. It does not constitute “an appeal on a point of law” for the purpose of section 56 of the Act.

At Paragraph [20] of their judgment, the Court dismisses the argument that the “that the public interest in maintaining the exemption diminishes with the passage of time”. In doing so it points to the provisions of FOISA in respect of section 35, and the terms of the explanatory notes in respect of section 34.

The entire appeal was dismissed

Comment

This was an interesting case dealing with the public interest test contained with FOISA. Many of the exemptions are subject to the balancing of the public interest. In doing so, public authorities are required to satisfy themselves that the public interest in maintaining the exemption outweighs the public interest in releasing the information. The test places the burden of proof entirely with the public authority. Having the burden of proof with the authority is both fair and reasonable; after all, it is the authority that has access to the information and is seeking to prevent its disclosure. It is difficult, if not impossible, to argue the public interest for a position of complete blindness.

Paragraph [20] of the Courts judgment does appear to be rather interesting. The notion that the public interest in maintaining an exemption diminishes with time has been almost universally accepted; indeed it even features in the Commissioner’s guidance on the public interest test (page 5). It would seem odd if the Court is interpreting the legislation in a way that it clearly never was intended to be construed. The whole purpose of the public interest test is to ensure that information is only withheld when it is in the public interest to do so. It will often be the case that the public interest in maintaining the exemption thirty or forty years after the information was created will be very different to what it was thirty or forty days after it was created. In respect of section 35, my reading of section 58 leads me to the conclusion that the information that is part of that class is exempt (subject to the consideration of the public interest) for a period of 100 years; once 100 years have elapsed the exemption ceases to apply and there can be no question as to whether it is in the public interest or not. I am not at all sure what the Court meant in paragraph [20], but I don’t think that it would have meant what it appears it said.

Of course what paragraph [20] means rests on the arguments put before the Court, and the Court has provided little in the way of detail on the arguments advanced by Counsel. It is clear from the legislation that Parliament intends the exemption to cover all information falling within the class of information for a period of 100 years; however, it is equally clear that Parliament intended that information falling within the class protected at section 35 could be released before this period is up by making it a qualified (as opposed to an absolute) exemption. It is necessary to try and read between the lines in order to attempt to fully understand what the Court was saying.

It would appear that perhaps Counsel for Mr Beggs was attempting to argue something slightly different; his Counsel appeared to be suggesting that post-trial there is very little interest in keeping the information secret. That is not a position that I would agree with, even if the legislation did not make it abundantly clear that such a position was not open. There is a strong public interest inherent in sections 34 and 35, and quite rightly it should take a very forceful argument to dislodge the exemption upon application of the public interest. Undoubtedly though, the closer one gets to the 100 year mark set out in FOISA, the more the public interest in maintaining the exemption reduces. Of course The very nature of the public interest test is such that it will entirely depend upon the facts and circumstances of individual cases.

I would be very interested to hear others thoughts on the judgment. If you have any, please feel free to stick them in the comments section below.

Fish, Law and Environmental Information

Are water companies subject to the Environmental Information Regulations 2004 (the EIRs)? That was the question that the Court of Justice of the European Union set about answering; last month it issued a decision that (in typical CJEU fashion) answered the question without actually answering the question.

On Thursday 19 December 2013 the Grand Chamber issued its judgment in Fish Legal and Emily Shirley v Information Commissioner, United Water Utilities Plc, Yorkshire Water Services Ltd and Southern Water Services Ltd (Fish Legal); while it doesn’t give a definitive answer to the question at the outset of this blog, it is an important judgment in respect of the question as to just who is subject to the EIRs.

Background

The EIRs (like the Environmental Information (Scotland) Regulations 2004 do in Scotland) implements into the law of Northern Ireland and England and Wales Directive 2003/4/EC, which in turn implements the Aarhus Convention into Community Law. The EIRs set out a framework in which members of the public can ask public authorities for ‘Environmental Information’, and to be provided with that information (subject to certain exceptions). Regulation 2(2) of the EIRs defines what a public authority is. The definition given by the Regulations is:

(2) Subject to paragraph (3), “public authority” means—

(a) government departments;

(b) any other public authority as defined in section 3(1) of the Act,
disregarding for this purpose the exceptions in paragraph 6 of Schedule 1 to the Act, but excluding—

(i) any body or office-holder listed in Schedule 1 to the Act only in relation to information of a specified description; or

(ii) any person designated by Order under section 5 of the Act;

(c) any other body or other person, that carries out functions of public administration; or

(d) any other body or other person, that is under the control of a person falling within sub-paragraphs (a), (b) or (c) and—

(i) has public responsibilities relating to the environment;

(ii) exercises functions of a public nature relating to the environment; or

(iii) provides public services relating to the environment.

(3) Except as provided by regulation 12(10) a Scottish public authority is not a “public authority” for the purpose of these Regulations.

(In the EIRs “the Act” refers to the Freedom of Information Act 2000, or ‘the FOIA’)

Fish legal is the legal arm of the Angling Trust, and in August 2009 it wrote to two of the water companies concerned asking for information concerning discharges, clean-up operations, and emergency overflow. Emily Shirley wrote to the remaining water company seeking information from them concerning sewerage capacity. The three water companies concerned did eventually provide the information that was requested by the two applicants. However, the matter before the Upper Tribunal was whether the water companies were under a duty to provide the information as public authorities under the EIRs. Unsurprisingly, the three water companies (all private companies) took the view that they are not public authorities within the meaning of Regulation 2 of the EIRs and were thus not under any duty to comply with the EIRs. When the Information Commissioner considered complaints made by the two applicants under Section 50 of the FOIA (as modified by Regulation 18 of the EIRs) he agreed with the water companies and decided that they did not meet the definition of a public authority under the EIRs.

The two parties appealed the Commissioner’s decision to the First Tier Tribunal who eventually dismissed the appeals (following the Upper Tribunal’s decision in Smartsource v Information Commissioner and others), but gave leave to appeal to the Upper Tribunal. The Upper Tribunal decided to make a reference to the Court of Justice of the European Union.

Court of Justice’s Judgment

On the question of whether water companies are public authorities under the EIRs, the Court of Justice stated at paragraph [55] that it is for the Upper Tribunal to answer this question. A very helpful judicially penned sentence. However, the court of Justice did provide some guidance as to how the Upper Tribunal can reach a decision on this question. It went on to say in paragraph [56]:

In the light of the foregoing, the answer to the first two questions referred is that, in order to determine whether entities such as the water companies concerned can be classified as legal persons which perform ‘public administrative functions’ under national law, within the meaning of Article 2(2)(b) of Directive 2003/4, it should be examined whether those entities are vested, under the national law which is applicable to them, with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.

In essence the Tribunal has to look at the powers that the water companies have and determine from there whether the powers they have extend beyond those that would normally extend from the private law.

The Court of Justice then went on to consider the question of control of the water companies. The Directive, and in turn the EIRs, include any other body or person that is under the control of a body or person covered by the EIRs, and provides public services relating to the environment. There was no disagreement between the parties that the water companies provide public services relating to the environment. The only controversial aspect was whether they were under the control of a body or person covered by the EIRs. Under the Water Industry Act 1991 the privatised water companies are subject to regulation by Ofwat and the Secretary of State, both of whom are public authorities for the purposes of the EIRs; however, the question is whether the water companies are under the control of Ofwat and/or the Secretary of State. If they are, then they are public authorities for the purposes of the EIRs.

On the question of control the Court of Justice did not provide a definitive answer; however, it did give some guidance as to how the Upper Tribunal should determine whether the water companies are under the control of Ofwat and/or the Secretary of State. Where a person or body is not able to “determine in a genuinely autonomous manner the way in which it performs the functions in the environmental field which are vested in it, since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on the entity’s action in that field.” [68] So, in essence, if the autonomy that a water company has to decide how it is to carry out its public environmental functions is limited by the power of Ofwat and/or the Secretary of State, it will be under the control of them; and that will have the consequence of making the water company a public authority for the purposes of the EIRs.

The method by which power a public authority has over an entity carrying out public environmental functions is exercised does not matter much. The exercise of power could be as a shareholder; it could be the power to suspend or annul decisions taken by the company, or require prior authorisation before those decisions are taken; or it could the power to remove members of the company’s management (among other things). [70]

What now?

The Court of Justice may not have given a definitive decision as to whether water companies are public authorities; however, it has given an important decision that will enable the Upper Tribunal to answer the question. It also provides important guidance which will apply outside of the question of water companies. It is now up to the Upper Tribunal to make a determination on the water companies front; that decision will turn on two factors: (1) the degree to which the powers water companies have is beyond the scope that would normally be expected under the private law; and (2) the degree of control that Ofwat and the Secretary of State hold over the decision making of the water companies in respect of their public environmental functions.

I won’t venture an opinion on either of those questions; I don’t know enough about the water industry in England and Wales, nor do I care enough to learn, to make a judgment on either of those questions. I’ll happily leave it up to the Upper Tribunal to consider these points and decide upon them.

What about Scotland?

In terms of Scottish Water, the question is already settled. Scottish Water, being a public authority listed in Schedule 1 to the Freedom of Information (Scotland) Act 2002, is covered by Regulation 2 of the Scottish EIRs.

Pro-active disclosure and FOI

It was today reported on the BBC News website that the Chief Executive of NHS Dumfries and Galloway has come out and said that his Board’s FOI initiative had been a complete failure. NHS Dumfries and Galloway had, in a bid to cut the number of Freedom of Information requests they received, pro-actively published information and statistics. During the period there had been a 25% increase in the number of requests received.

Before addressing the substantive issue, I will address a couple of questions that I was left with after reading the article. Firstly, I was left wondering how the Board had decided what information and statistics they were going to publish (it’s all very well publishing information and statistics, but if it’s not the information and statistics that people are interested in it’s not really going to ever have the desired effect). I was also left wondering how many of the requests received during that period were for information that had already been published. That is also relevant because if there was a large number of requests for already published information that would indicate a problem with the requesters and not the Board.

Let me take the latter of the two questions first. FOI is not, and should never be seen as, a way of getting public authorities to do your research for you. Indeed, there is an exemption with both the Scottish and UK legislation that exempts information that is otherwise available to the applicant. It is incumbent upon individuals to look for the information they want before putting in their request. If they did that they might save themselves some time (public authorities essentially have a month to respond to your request) and would also save the taxpayer money. If a large number of requests received in period of observation were for information already published by the Board then the number of requests could be reduced if people were (a) more aware that the information was pro-actively published and (b) more responsible in their use of FOI.

On the first question that the article left me with, if you’re not publishing the information that people want then people are still going to write to you and request it. What analysis was undertaken by the Board before deciding what to pro-actively publish and what not to pro-actively publish? I don’t think I need to say any more on that point here.

I think that public authorities who are seeking to pro-actively publish information to reduce the burden of FOI on them must consider a few things. Firstly, what is the point of FOI? Simply, put FOI is about putting the citizen in charge of what information they receive. Of course, that right is qualified and certain information can be withheld by law. However, it is no longer the case that the citizen only ever receives the information that public authorities want to tell them. Unless you are completely open there is always the chance that information you decide not to pro-actively publish is the information that someone would like and that will result in an FOI request for that information. Secondly, I think that they need to address their views towards openness. Public authorities should be pro-actively publishing information because they value being open and allowing the public to properly assess what they are doing; not because it might save some money on the balance sheet.

I do not think it unreasonable for public authority’s to assume that by pro-actively publishing information that they will reduce the number of FOI requests that they receive. It follows that if requesters search for the information before requesting it, they will locate it without the need to request information and as such will not make an FOI request for it. However, there is the possibility that releasing information will generate further FOI requests. Releasing information might generate requests for other connected information that is not published, or for more detailed information than is published. For example, publishing the agenda and/or minutes of a meeting might generate requests for information in documents referred to within the meeting minutes. Public authorities could take a decision at the time as to whether they are going to pro-actively publish those documents or whether the potential saving by pro-actively publishing them doesn’t negate the cost of considering them for release on the basis that they might be requested in an FOI request. It is a judgement call for the public authority in question.

Lynn Wyeth (@LynnFOI), an FOI Officer, on Twitter made this point in a tweet that she tweeted. Her own experience was that pro-active publication generates more follow-on requests. However, she also made an interesting point when she tweeted asking “How do you know how many FOI requests you haven’t received, if you haven’t received them?” There is of course no way for NHS Dumfries and Galloway to know how many requests were prevented because of their pro-active disclosures. The simple fact is that it cannot. It can look at the information it does have though and question what it tells them. For example, if the requests it did receive included a number of requests for information which was already published, it could consider how it could better inform people of what information it is pro-actively publishing. You will never eliminate requests for information that is already available because you will never eliminate lazy requesters, or those without the technical ability to locate information which isn’t obviously available.

Tim Turner (@tim2040) tweeted that pro-active publication should be done “in the public interest with no expectation of a knock-on effect for FOI”. I tend to agree with him, but as already stated I don’t think it unreasonable for the assumption to be considered. Pro-active publication is a good thing, but it should be seen as an addition to FOI and not a replacement for it. FOI is an important right because it allows citizens to request the information that they want, not just to receive what an authority wants them to see. Pro-active disclosure is only one aspect of transparency and accountability; that fact should not be lost sight of.

Your Right to Know: International Right to Know Day 2013

Today (28 September) is International Right to Know Day, it is a day which highlights your right to know and obtain official information.

In the UK the Freedom of Information Act 2000, Freedom of Information (Scotland) Act 2002, the Environmental Information Regulations 2004 and the Environmental Information (Scotland) Regulations 2004 give people anywhere in the world the right to be given information held by public authorities in the UK, subject to certain exemptions.

It is possible to request information from the UK and devolved Governments, from the police, local councils, the NHS, the prison authorities, the prosecution authorities, the court services and a whole range of other public bodies. Not only is it possible to request it, but you have the right to be given the information where it is not exempt from disclosure by one of the specified exemptions (or in the case of Environmental Information, exceptions) in the legislative provisions.

Even if an authority states that information is exempt, you have the right to ask them to think again and if they still refuse to give you the information you have the right to ask the relevant Information Commissioner to investigate and decide whether the public authority was right.

The Right to Know is an important right, it helps to hold those who make decisions and spend public money accountable for the decisions that they make and the money that they spend. It can aid the public’s understanding of the decision making process and can also help public authorities to see where they could be doing things better.

However, as it is an important right it must be used properly. Using it to annoy or upset individuals in a public authority, to carry on a personal dispute with a public authority or using it with no real purpose behind receiving the information isn’t helpful. It costs money to process a request and it does take public authority staff away from delivering their core function, which will have an impact on the public authority. Inappropriate use of the Act could lead to important information access rights being lost or reduced and that would be bad for everyone.

Over the years the way in which public services have been delivered is having an impact on the ability of the public to properly hold those responsible for making decisions and spending public money to account. This has resulted in an effective reduction in the information access rights that people have.

Freedom of Information is important. However, Government’s should be a lot more proactive in their release of information. There are many benefits to this, not least if it’s already in the public domain somebody doesn’t have to request it through information access rights.

I’m using International Right to Know day to write to my elected representatives reminding them of the importance of FOI, and to ask them to ensure that they press the Government to extend and protect FOI as well as pressing the Government to be more open and pro-active with information in the first place.

Useful Resources:
UK Information Commissioner – http://www.ico.org.uk
Scottish Information Commissioner – http://www.itspublicknowledge.info
WhatDoTheyKnow – http://www.whatdotheyknow.com
Freedom of Information Act 2000 – http://www.legislation.gov.uk/ukpga/2000/36/contents
Environmental Information Regulations 2004 – http://www.legislation.gov.uk/uksi/2004/3391/contents/made
Freedom of Information (Scotland) Act 2002 – http://www.legislation.gov.uk/asp/2002/13/contents
Environmental Information (Scotland) Regulations 2004 – http://www.legislation.gov.uk/ssi/2004/520/contents/made

Transparency in the reporting of FOI responses?

Today I noticed a line in a BBC News report which I see fairly frequently in news reports that have come from FOI requests and it made me think about whether the reporting is fair on the public authorities concerned.

In this instance the Liberal Democrats had requested information from local councils in Scotland concerning racist incidents recoded at schools. The figures used in the report were based on the responses of three-quarters of the local authorities in Scotland. The BBC report included the wording:

“The party submitted Freedom of Information (FOI) requests to local councils and received responses from three-quarters of them.”

I don’t consider such wording to be fair to the quarter of local authorities who, by implication, haven’t responded. It implies that a quarter of local authorities in Scotland have failed to respond, and as such are failing to comply with the law. Section 10(1) of the Freedom of Information (Scotland) Act 2002 requires public authorities to respond to requests promptly, and in any even no later than the twentieth working day following receipt. The only exception is where the request (or a similar one) from the same requester has been judged as vexatious and it would be unreasonable for the authority to issue another notice. In such cases the public authority is not obliged to issue a further refusal notice.

Sometimes public authorities fail to comply with section 10(1) for a variety of reasons. However, I find it hard to believe that a quarter of Scotland’s local authorities failed to do so in respect of the same request (although some may have). That leaves us with a number of explanations as to why there are only figures for 3/4 Scottish local authorities in this case.

1) The Lib Dems released the figures before the 20 working days were up. Some public authorities (including some local authorities) are very good at responding in a time frame much quicker than permitted by law (personally the quickest I ever received a full substantive response from a local authority was one working day – and it included the information I’d requested in full). This seems unlikely though.

2) That some of the local authorities refused the request. This could have been for a variety of reasons: they didn’t hold the information requested, it would have exceeded the appropriate limit or it applied one of the exemptions to the information permitted by the Act).

The second reason above seems the most likely and this is very different from the implication given by the BBC in its coverage of the story. There would have been a response because FOISA requires public authorities to issue refusal notices in all the cases described in number 2. The response may not have included any disclosure of information, but that’s not the same as receiving no response.

I said at the outset of this post that this phrase is one that is heard or seen often in the reporting of stories which have originated out of FOI. It begs the question: Is this fair reporting? I would have to say that it would appear not to be; implying authorities are not complying with the law without providing the evidence to back it up isn’t very fair. Who is to blame though? The news outlet making the report or the requestor? In some cases the two will be the same.

So should reporting of the results of FOI requests be more transparent?

UK Supreme Court: South Lanarkshire Council v Scottish Information Commissioner

On 8 July 2013 the United Kingdom Supreme Court heard its first appeal in a Freedom of Information case under the Freedom of Information (Scotland) Act 2002 since the functions of the Law Lords in the House of Lords transferred to the Supreme Court. The case concerned the appeal by South Lanarkshire Council agains a decision of the Inner House of the Court of Session. That appeal was brought by South Lanarkshire Council against decision notice 056/2011 issued by the Scottish Information Commissioner. The UK Supreme Court (Lady Hale sitting with Lords Kerr, Wilson, Reed and Carnworth) issued its judgment dismissing the appeal on 29 July 2013.

In Decision 056/2011 the Scottish Information Commissioner had found that South Lanarkshire Council had not been enetitled to withhold information as to the number of persons at specific points on the Council’s pay spine under section 38 of the Freedom of Information (Scotland) Act 2002. I wrote about this case when the Inner House issued its decision (also dismissing the appeal by South Lanarkshire Council), you can find out more about the case generally (and the Court of Session’s opinion) in that post.

The case is an important one for information law as it provides some important guidance on the tension between the Freedom of Information (Scotland) Act 2002 and the Data Protection Act 1998 (specifically, condition 6 of Schedule 2). It is clear from this case and others (such as Common Services Agency v Scottish Information Commissioner [2008] UKHL 47, 2008 SC (HL) 184) that there is certainly no presumption in favour of Freedom of Information over the protections in the Data Protection Act 1998. Indeed, reading the legislation gives the opposite impression. The protections for personal data in the Freedom of Information (Scotland) Act 2002 are absolute (i.e. once they apply, that is the end of the matter).

The first data protection principle in Schedule 1 to the Data Protection Act 1998 requires that a data controller shall process personal data only in a way that is fair and lawful. The Act goes on to provide that personal data cannot be processed unless at least one of the conditions in Schedule 2 are met. The case at had concerned condition 6 in schedule 2 which permits the processing of personal data where it is necessray for the legitimate interests of the data controller or any third party. There is a qualification, in that the processing must not happen if it would be contrary to the fundamental rights of the data subject. The case centred on the correct interpretation of ‘necessary’ in condition 6 of schedule 2.

In the Supreme Court’s judgment, Lady Hale made reference to a number of decicions of the European Court of Justice which supported the view taken by the Divisional Court in Corporate Office of the House of Commons v The Information Commisisoner [2008] EWHC 1084 (Admin) that the word ‘necessary’ had to be inrepreted in light of the European Convention on Human Rights and Fundamental Freedoms 1950.

In Rechnungshof v Osterrichischer Rundfunk the European Court of Justice stated, at paragraph 68:

“the provisions of Directive 95/46, in so far as they govern the processing of personal data likely to infringe fundamental freedoms, in particular the right to privacy, must necessarily be interpreted in the light of fundamental rights, which, according to settled case law, form an integral part of the general principles of law whose observance the Court ensures.”

The ECJ held that if the national legislation was incompatable with Article 8, it was unable to satisfy the proportionality requirements in article 7(c) or (e) of the EC Directive 95/46 (to which the Data Protection Act 1998 gives effect to in the United Kingdom).

This approach was followed by the ECJ in Huber v Bundesrepublik Deutschland, and so in order to be compatable with the proportionality requirements in the Data Protection Directive, the processing must be compatale with Article 8 of the European Convention on Human Rights and Fundemantal Freedoms.

Lady Hale observed at paragraph 26 that the information which Mr Irvine had requested would not allow him, or anyone else, to identify the individuals in question. As such it was “quite difficult to see why there is any interference with their right to respect for their private lives.” As such, Lady Hale stated, also at paragraoh 26, that applying article 7(f) and condition 6 in their own terms was sufficient.

Delivering a final blow to the Council, Lady Hale conculded that the Scottish Information Commissioner “had applied a test that was probably more favourable to the Council than was required and certainly no less favourable.” (Paragraph 28).

So, while it was not really necessray to consider Article 8 of the European Convention on Human Rights and Fundamental Freedoms in this case due to the data subjects not being identifiable from the information requested, it is clear from the ECJ case law in lady Hale’s judgment that Article 8 is a consideration that must be taken into consideration when considering disclosing information under the Freedom of Information (Scotland) Act 2002 which is the personal information of an identifiable data subject.

Requirements for refusal under FOISA section 18: OSIC Decision 100/2013

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.

The request

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

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).

Information Notice

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.

Analysis

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.

Scottish Government moves to recover lost FOI rights

On Friday it was announced that the Deputy First Minister of Scotland, Nicola Sturgeon MSP, laid before Parliament an order under section 5 of the Freedom of Information (Scotland) Act 2002.

Section 5 of the Freedom of Information (Scotland) Act gives the Scottish Ministers the power to designate such persons or bodies that appear to the Scottish Ministers to exercise functions of a public nature or are providing, under a contract made with a Scottish public authority, any service whose provision is a function of that authority as public authorities for the purposes of the Freedom of Information (Scotland) Act 2002.

The power under section 5 has never before been used by any member of the Scottish Administration since the Act came into force on 1 January 2005. Schedule 1 to the Freedom of Information (Scotland) Act 2002, which sets out those persons and bodies covered by the Act, has been amended by other statutory provisions as new public bodies have been created and as existing public bodies are abolished.

The new order, if approved, will make arm’s length bodies established by local authorities to provide cultural, sports and leisure services public authorities under the Freedom of Information (Scotland) Act 2002. Since the Act was passed in 2002 there has bene a significant shift in the way that public services have been provided. Local authorities have established companies to carry out a whole variety of functions. These companies are not covered by the Freedom of Information (Scotland) Act 2002 and their establishment has represented a loss of information access rights.

This move is to be welcomed and it is an important step forward in ensuring that those who are responsible for spending public money and delivering public services are accountable directly to the people of Scotland for how they spend that money and provide those services. However, it does little more than recover information access rights that have been lost and rectify a government failure in not designating these bodies earlier. There remain bodies who carry out important public functions which, it is argued, should be covered by the Freedom of Information (Scotland) Act 2002. If the Scottish Government is serious about FOI and extending its coverage, then it ought to go further and consult on other bodies (such as COSLA, the Law Society of Scotland and the Faculty of Advocates).

Changes to FOI in Scotland from 31 May 2013

Friday 31 May 2013 is the day appointed by the Scottish Ministers upon which the Freedom of Information (Amendment) (Scotland) Act 2013 comes into force. This Act amends the Freedom of Information (Scotland) Act 2002 in some technical respects, and this post is a brief overview of the changes that will come into force next week.

Neither confirm nor deny

Section 18 of the Freedom of Information (Scotland) Act 2002 exempts public authorities from their normal requirement to identify whether information requested in a FOI request is held or not. It applies only where certain exemptions could be claimed if the information were held. Currently, public authorities cannot ‘neither confirm nor deny’ whether information is held if that information is personal information (exemption under section 38). From Friday 31 May 2013, public authorities will be able to deploy section 18 where the information held is personal information.

Information available in the publication scheme

The Freedom of Information (Scotland) Act 2002 will be amended from 31 May 2013 to make it clear that information contained in a public authorities publication scheme is ‘otherwise accessible’ where applicable fees required by the public authority are set out in the publication scheme. This will ensure that public authorities can utilise the section 25 exemption for information that is otherwise accessible to information contained within its publication scheme.

Historical Periods

Some of the exemptions in Part II of the Freedom of Information (Scotland) Act 2002 are no longer available to public authorities after a certain period of time has elapsed. Changes to the Freedom of Information (Scotland) Act 2002 coming into force next week will give the Scottish Ministers more latitude in varying the periods that exemptions apply to certain classes of information. They will be able to be much more specific in the exercising of this power than was previously allowed by Parliament.

Prosecution Time Limits

The time limit for prosecuting a public authority for alleged offence sunder section 65 of the Freedom of Information (Scotland) Act 2002 has been modified so as to make it possible to bring prosecutions where it appears that offences have been committed. For all offences which have been committed on or after 31 May 2013, the 6 month time period for brining a prosecution will begin on the date that evidence which the prosecutor believes is sufficient to justify bringing proceedings comes to the knowledge of the prosecutor (and no more than 3 years after the date the offence was committed, or ceased to be committed in the case of a continuing contravention of section 65). A certificate signed by the prosecutor as to the date sufficient evidence came to the prosecutor’s knowledge to justify brining proceedings will be conclusive of that fact.

Designation of authorities

The Scottish Ministers will be accountable to Parliament over their use (or lack of) of their power to designate bodies as public authorities for the purposes of the Freedom of Information (Scotland) Act 2002 under section 5. The Ministers must lay a report before Parliament by 31 October 2015, and every 2 years after that, explaining why the power at section 5 has been exercised or gone unexercised.

The people whom the Ministers must consult before exercising their powers under section 5 of the Act has been extended to include ‘other persons as they consider appropriate’ in addition to those bodies covered by any proposed order (or those appearing to represent them). This should, hopefully, open up section 5 order consultations to the public as well as the Scottish Information Commissioner.