FOIA, FOISA, Freedom of Information, Information Rights, Save FOI, Vexatious Requests

The cost and burden of FOI…again

The Chief Constable of Surrey Police has gone on the offensive against Freedom of Information on Twitter this evening (and the Assistant Chief Constable of Greater Manchester Police joined in).  It follows a predictable pattern where a public authority (and technically the Chief Constable is the public authority – schedule 1 to the FOIA provides that “A chief officer of police of a police force in England or Wales” is a public authority) complains about the cost of FOI and how it impacts upon the delivery of front line services.

It is a well trodden path which has, over the years, generated lots of discussion in information rights circles.  One of the frequent things to be picked up in these discussions is that, while public authorities are complaining about the cost and burden of FOI, they rarely mention any of the benefits.  Those benefits are around openness, transparency and accountability.

FOI, I can imagine, is probably a right pain in the backside to public authorities sometimes; however, just because it’s a royal pain in the backside doesn’t mean that it is of no value.  FOI is about allowing the citizen to set the agenda on the flow of information.  No longer is the flow of information dictated by what public authorities are prepared to release.  Now, if a member of the public wants to know something, they have the right to be given it if the public authority holds it and there is no good reason for not releasing it.

In times of shrinking budgets, FOI might be seen as an expensive luxury.  However, I would argue that in times of shrinking budgets FOI is all the more important.  As budgets shrink, public authorities have to take decisions about how they spend their ever shrinking budget.  That will often mean cuts to some services (or perhaps withdrawing services altogether).  It allows people who are directly affected by those decisions to go to the public authority and obtain the information that forms the basis of those decisions.  It can help them to understand why decisions have been taken and more importantly can better enable them to challenge decisions where they are perceived to be the wrong ones.

When Parliament drafted the FOIA, it didn’t do so without having any consideration as to the burden that this new regime would have on public authorities.  There are a number of provisions within the FOIA which help to control the burden of FOI.

First, there is section 12 of the Act which sets an appropriate limit on the costs of FOI requests.  A public authority is not obliged to comply with a request where the cost of compliance is estimated to excced the appropriate limit.  For a police force in England and Wales, the limit is £450 (indeed, it is £450 for all public authorities except Government departments or Scottish Public Authorities, where it is £600).  This does only covers certain activities and it is possible for requests to cost more than the appropriate limit in practice and not be capable of being refused under section 12.  This will be because the cost is incurred in an activity which cannot be taken into account in any cost calculations for the purposes of determining whether it exceeds the appropriate limit.

Sometimes, these requests will be the ones where the public interest is finely balanced and the authority is having difficulty establishing just where the public interest lies.  Should such requests be refused because of this?  I’d forcefully argue that they should not.  If it was possible to refuse these requests it would actively work against the public interest: the public might not get information which it would be in the public interest for them to have simply because it is going to take a bit of time for the public authority to work out just where the public interest lies.  However, sometimes the additional cost will be because there is a large volume of information to consider.  While, a request that throws up a large volume of information will often end up breaching the “appropriate limit”,  it is sometimes the case that there is a large volume of information held on a particular subject which is actually relatively quick and easy to locate and extract.  What takes the time then is the applying of exemptions and the conduct of the public interest test.  Section 12 isn’t an option in these requests, because the law doesn’t allow for it to apply.  However, this does bring us on to the next provision of the FOIA which is there to prevent the burden from being too great.

Before I look at that, I thought it would worthwhile pointing out that in terms of section 12 the law has provision within it to ensure that it cannot be avoided.  Simply breaking down a large request into a number of different requests will still likely engage the cost limit: public authorities can aggregate requests from the same individual received within a period of 60 consecutive working days which seek similar information.  So, asking for information on a particular subject over a 10 year period broken down into 5 requests each covering a 2 year period will be aggregated together.  All of the requests will be refused if the cost of complying with all of them is estimated to exceed the appropriate limit.  This provision goes further than that though; it’s not possible to get four of your mates to help you make 5 requests for the information over a 2 year period either.  The law provides that where “different persons who appear to the public authority to be acting in concert or in pursuance of a campaign” the public authority can again aggregate the cost and refuse all of the requests if they exceed the appropriate limit.

The second provision designed to help public bodies with the burden of FOI requests is section 14, which deals with both repeated and vexatious requests.  In terms of repeated requests, if a public authority has complied with a request from someone, they do not have to comply with a request from the same person which is for the same (or substantially similar) information unless a reasonable time has elapsed between the requests.

Vexatious requests are a bit more difficult; however, public authorities have been greatly helped by the decision of the Upper Tribunal in Dransfield (although, Mr Dransfield has appealed this decision to the Court of Appeal).  It is important to note that it is the request, not the person making it, which is vexatious. However, previous correspondence between the requester and the public authority can be relevant.  This provision largely allows public authorities to ignore people trying to use FOI to keep open grievances that have been rumbling on for a long time, especially where they have been the subject of complaints and independent scrutiny.  Section 14 also catches those who are making requests simply to annoy the public authority (quite possibly because of a previous complaint).  However, it can also be used to deal with requests where there is an unacceptable burden to the authority; described as “grossly oppressive”.

This is a higher burden than would be applicable in section 12, but it is an option that is open to authorities where requests produce large volumes of information with a lot of potentially exempt information – especially where those exemptions are qualified ones where the PI might be difficult to determine.  However, the ICO does consider it good practice to go back to the requester before claiming section 14 in these situations – and doing so would probably fall within a public authority’s duty to provide advice and assistance.  So, where a request is overly burdensome and section 14 could be claimed instead of section 12, a public authority should probably go back to the requester and try and work with the requester to refine their request.  Although requesters are not required to (and public authorities are generally discouraged from asking), trying to establish the motive and purpose of the request can help.  Engaging with the requester might save a public authority a lot of time in the long run as it becomes clear that only a tiny proportion of the information that has been uncovered is what the requester is after – the public authority gets to consider a much more refined request and avoids the possibility of an Internal Review and ICO complaint over its application of section 14 (and possibly an adverse finding against it, either in respect of its use of section 14 or its failure to provide advice and assistance).

I note that Surrey Police operates a disclosure log on its website, but that it states it only publishes responses which might have wider interest.  Disclosure logs can be a useful tool for public authorities.  There is an exemption for information which is already reasonably accessible to the requester.  Publishing all responses in a disclosure log on a website might enable public authorities to refuse requests under section 21 of the Act.  This is a quick and simple process that shouldn’t take a huge amount of time.  Most of the time will be spent ensuring that the request isn’t seeking additional information which is not already reasonably accessible to the requester.

This is where the WhatDoTheyKnow website comes into its own – all information released to requesters on that website ends up in the public domain automatically.  Just because it’s not actually published on the authorities own website, doesn’t mean it’s not reasonably accessible to the requester and so section 21 can still be used.  One public authority has even worked with WhatDoTheyKnow to utilise the technology behind WhatDoTheyKnow on their own FOI website, undoubtedly reducing the burden of operating a comprehensive disclosure log.

If public authorities notice trends in their requests, it might be worthwhile proactively releasing the information on a regular basis.  Then the exemption at section 22 is available to the public authority because it is information which is intended for future publication.  This exemption is subject to the Public Interest Test, but there will normally need to be compelling reasons for departing from a set date for publication.  Of course, public authorities would need to consider the cost balance here: is it more costly to routinely publish the information than deal with the FOI requests as they come in?  The UK provision on information intended for future publication is much more generous that the Scottish provision, where it only applies in cases where the intended publication is no later than 12 weeks following receipt of the request.

We often see complaints from public authorities about requests which are bizarre in nature, but as Jon Baines has demonstrated, those apparently bizarre requests do sometimes have a justification behind them.  For the ones that don’t, Tim Turner explains that they can be quickly disposed of.

There are, of course, steps that requesters can take to relieve the burden to public authorities and to that extent I commend Paul Gibbons’ guide to making FOI requests, which includes 10 very good tips for requesters.

A fairly long blog post, so if you have reached this point: thank you and well done!

——
Useful Links:

ICO guidance on section 12
ICO guidance on section 14
ICO guidance on section 21
ICO guidance on section 22

Environmental Information, FOIA, FOISA, Freedom of Information, Information Rights, Save FOI

Your Right to Know: International Right to Know Day 2013

ImageToday (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

FOISA, Freedom of Information, Save FOI, Scots Law

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).

FOIA, Freedom of Information, Save FOI

‘Thinking time’ and Freedom of Information

Yesterday a debate was held in Westminster Hall on the Government’s response to the Justice Committee’s post-legislative scrutiny of the Freedom of Information Act 2000.  The debate was very poorly attended by MPs; but those few who did ensured a good quality debate was had.

Of concern though was the government’s response; and in particular its continued desire to see how it could include “thinking time” into the cost calculations under section 12 of the Act.  Most are agreed that including such time into the cost calculations would significantly damage the Freedom of Information Act.  Including such time into the cost calculations would not help reduce the burden of “frivolous” or “vexatious requests” as they are most likely to be simple requests which require little time.  The requests they would affect are the ones where the public interest has to be considered; and in particular, those requests where the public interest is finely balanced.

We would begin to see more requests being refused simply because the complexity of establishing exactly where the public interest lies will take too long; that will undoubtedly mean information which could expose wrongdoing or corruption in public office is not released.  That would fundamentally undermine the Act.

Another example of requests that might be covered are ones which produce a significant volume of information.  Imagine another MPs expenses type request which produces volumes of recorded information.  The information could easily be retrieved within existing cost limits; but when thinking time becomes included in the request such a request would be refused (not necessarily because it’s difficult to establish where the public interest lies, but because each piece of recorded information has to be considered for disclosure).

Allowing thinking time will also create a disparity between public authorities.  It’s a subjective thing that is not easy to consider objectively. One FOI officer might be able to read the same document much more quickly than another FOI officer.

The introduction of “thinking time” would fundamentally undermine and significantly damage the FOIA and must be rigorously opposed by Parliament to ensure that the record of the FOIA as a strong piece of legislation is not destroyed.

In the words of Iain Gray MSP in a recent debate on FOI in the Scottish Parliament; “No Government likes FOI. FOI is always inconvenient, but it is the right thing.”  The UK Government may not like FOI, but it is the right thing to do and they must not be allowed to weaken the Act.

Freedom of Information, Save FOI, Scots Law

Changes to FOI in Scotland approved

Yesterday the Scottish Parliament passed the Freedom of Information (Amendment) (Scotland) Bill which will make some amendments to the Freedom of Information (Scotland) Act 2002 (FOISA).  The Bill will now go forward for royal assent.  The Bill as finally approved by the Parliament can be found here.

While the Bill does make some important and much needed changes to FOISA, there is much more that the Parliament could have done to strengthen the Bill and the message that FOI is here to stay in Scotland.

One of the most controversial elements of the Bill was the removal of the public interest test in relation to information which is exempt under the so called ‘Royal exemption’.  The Scottish Government, to their credit, did listen to oral and written evidence submitted to the Finance Committee on the Bill and removed that amendment from the Bill at Stage 2.  The debate about the Bill then moved to what was missing from it rather than what was contained within it; primarily because what was missing was of much more concern than what was there.

One of the most significant changes which was passed by the Scottish Parliament can be found at Section 5 of the Bill.  This changes the time limit for proceedings under s.65 of FOISA.  Section 65 creates a criminal offence to alter, deface, block, erase, destroy or conceal a record held by the authority with the intention of preventing disclosure.  Currently, FOISA means that a prosecution for an offence under this section can only be initiated within 6 months of the offence being committed.  With the timescales permitted by FOISA it was impossible for a prosecution to be brought because it could be as many as 4 months before the request gets to the commissioner and could be 6 months before the Commissioner’s office is even aware that a s.65 offence may have been committed.  The change that will come about as a result of this Bill means that a prosecution can be brought where it is done so within 6 months of evidence that the prosecutor believes is sufficient to justify the proceedings coming to the prosecutor’s knowledge (so long as it is not more than three years since the offence was committed).

I am not suggesting that there are significant numbers of these offences being committed, but there is little doubt that some will have been since 2005 and the impossibility of a prosecution ever being brought might have acted as an incentive for an authority so minded.  The Bill passed by Parliament yesterday reinforces the fundamental nature of FOI and that those who seek to frustrate the FOI process will be prosecuted for it.  It will be interesting to see if prosecutions do arise once the amendment comes into force.

Another significant change is at s.4 of the Bill and it relates to when information becomes a historical record.  This will hopefully mean that information held by public authorities will be released much quicker than it might otherwise have been and that can only be a good thing for transparency and openness in public life.

Since the Bill was first published there was one thing that was noticeably absent and that was provision to extend the coverage of FOISA to bring (at the very least) the public’s FOI rights back to where they were in 2005.  Since FOISA was passed in 2002 and came into force in 2005 there have been significant changes in the way public services are provided.  Local authorities have transferred significant amounts of their work to private companies (many of which are publically owned); housing and leisure facilities are two prominent examples.

When these functions were carried out by local authorities the information held was subject to FOI and could be obtained to scrutinise work in these often important areas, but as these activities have been transferred to these ‘arms length organisations’ (Aleos) they have stopped being subject to FOI and people’s FOI rights have been reduced.

The Deputy First Minister made much of the designation power at s.5 of FOISA (to which some changes have been made to strengthen ministerial accountability over the use (or lack of) of these powers) and how it was the Government’s intention to use the powers.  The current Government has been in power for almost six years and in that time not a single s.5 order has ever been made by them.  The previous Government had not made any such orders either, but they left power only two years after FOISA came into force and were in power during a time when FOI was still bedding down and its extent and coverage was still, to an extent, being worked out.  The fact that for six years the current Government has made no real effort to ensure that FOI rights are maintained, let alone extended in appropriate cases, is a significant failure.  The Scottish Government can try and cover it up in any which way that they choose, but the fact remains that they have not issued a single s.5 order.

The Bill was, in the Government’s view, never about extending coverage.  However, it should have been.  While Parliament was spending time debating and considering FOI in Scotland it would have been a perfect opportunity to at least include those organisations previously consulted on in the coverage of FOISA.  An amendment was moved yesterday by Iain Gray MSP to include Glasgow Housing Association into the list of Scottish Public Authorities, but that was defeated.  A move to insert a more general amendment that would have made information held by a significant number of Aleos subject to FOISA was also rejected by the Parliament.

The Government frequently tells of its commitment to openness and transparency; indeed it was referred to many times during the passage of the Freedom of Information (Amendment) (Scotland) Bill through the Scottish Parliament.  However, the Government could have demonstrated that they truly adhered to that commitment by agreeing to include those organisations previously consulted over into FOISA.

The Deputy First Minister has committed to issuing at least 2 s.5 orders; we really must see a substantial one issued this year and preferably before the summer.  Anyone in Scotland who believes in FOI must now ensure that pressure is put on the Government to keep its commitment to use s.5 and to get it to do so early.

Iain Gray MSP put it well in the chamber yesterday when he said:

The point is that FOI legislation tests a Government’s moral fibre. No Government likes FOI. FOI is always inconvenient, but it is the right thing.

The Bill certainly has made some important and much needed changes, but it fell far short of what was needed.

The full Stage 3 debate can be read in the Offical Report of the Scottish Parliament

FOIA, Freedom of Information, Save FOI

Government responds to Justice Select Committee on FOIA

Almost one week ago the UK Government finally issued its response to the Justice Committees detailed and quite frankly excellent post-legislative scrutiny of the Freedom of Information Act 2000.  I am now finally getting round to putting my thoughts on the Government’s response to the Justice Committees report (although I have already written to my MP to highlight some of my major concerns with the Government’s response).

I don’t wish to give the impression that the Government’s response is a complete disaster for Freedom of Information; there are many good and bad things about their response.  I will start first with things that (in my view) are worth highlighting as “good” things from the Government’s response before turning to the (in my view) “bad” things.

To be celebrated is the clear indication from the Government that they do not consider their own “open government” agenda as being a replacement for FOI.  The Government’s response described the two agendas as “complimentary” to one another.  This is a clear recognition by the Government that Freedom of Information plays an important role in our democracy.  The Justice Committee said in their report that the FOIA “has been a significant enhancement of our democracy”.

Another big thing to celebrate from the Government’s response is that FOI requests are to remain free.  There was a push by a number of public authorities during the evidence stages of the post-legislative scrutiny (which was evident before the post-legislative scrutiny and after) for there to be charges for making information requests.  The Government isn’t convinced though and has ruled out charging for requests saying:

The Government agrees with the Committee’s assessment that charging for FOI requests would have an adverse impact on transparency and would undermine the objectives of the Act.

This is welcome news because we only have to look to Ireland to see what damage charging for requests can do to Freedom of Information.

One final thing from the Government’s response I personally think is worth celebrating is a change to the rules on prosecuting authorities under s.77 of the Act.  Currently a prosecution under s.77 has to be launched within 6 months from the date of the offence.  It can easily be more than 6 months since the offence before the Information Commissioner’s Office begins to investigate a complaint under s.50 (a likely time for a s.77 offence to be discovered).  The Government has rejected the Justice Committee’s proposals to make it an “either way offence” (meaning it could be tried in the Crown Court); however, it has indicated that it will change the Act so that the six months to bring a prosecution starts when the offence is discovered rather than from when it is committed.  This means that if the ICO discovers s.77 offences it can now prosecute them.  The Information Commissioner did say in evidence to the Justice Committee that his office had seen evidence of destruction of information after a request had been made (an offence under s.77) but they had simply not been able to get them to court in time.

Having looked at the things worth celebrating from the Government’s response; it is time to turn to the things that are a cause for concern.

Some people have placed the first thing that I wish to address in this section as something to celebrate.  However, I do not share that view and I will explain why I consider it to be a bad thing.  In their report the Justice Committee suggested making the timeframe for internal reviews statutory.  This is the position in Scotland under the Freedom of Information (Scotland) Act 2002 (s.21(1) provides that a review must be carried out promptly and no later than the 20th working day following receipt).  The Government has decided not to implement this recommendation and has instead suggested providing guidance in the s.45 Code of Practice on the conduct of internal reviews.  There is currently advice on timescales for the carrying out of reviews; that is provided by the Information Commissioner’s Office in ‘Good Practice Guide (No. 5)’ which sets out a timescale similar to that found within s.10(1) of the FOIA for initially responding to a request.

The problem is that a great number of authorities seem to frequently take considerably longer to conduct reviews than the time set out in the Commissioner’s Guidance.  Some of these authorities are central government departments; which doesn’t hold out much hope for compliance with guidance in the s.45 Code of Practice.  I can’t see how providing guidance to deal with a failure to apply guidance as to good practice will address the problem.  It seems to me that building in a statutory framework on internal reviews is what is needed here (as is tightening up the public interest extension at s.10(3) of the Act).  It is important to note though that there are a great many public authorities who conduct internal reviews diligently and don’t kick them into the long-grass.  It is also important to note that the Government is of the view that reviews should be carried out quickly.  I don’t see why they can’t put that view into statute rather than a Code of Practice.

Another concern is the Government’s indication that it will continue to consider what else could be included in the cost caulcations.  For those with a limited knowledge of FOI; there exists the “appropriate limit” which if a request exceed the public authority can refuse to comply with the request.  The current appropriate limit is £600 (for central government) or £450 (for other authorities).  Furthermore, if the time taken to comply with the request exceeds 24 hours work (for central government) or 18 hours work (all other authorities) then the public authority can refuse to comply with the request.  In respect of time taken to deal with the request there are certain activities which cannot be included in the calculation.  The time taken to consider whether the information can be disclosed or the time taken to redact exempt information currently cannot be included.  The Government is considering whether both of these activities could be included in these calculations.

There is a major problem here in that it is hard to objectively judge reading and redacting time.  One FOI officer in one authority might take longer to read and consider information than another FOI officer in another authority considering the same information.  It becomes about the ability of individual FOI officers.  Moreover, it risks meaning that large volumes of information might be refused simply because it will take a long time to consider the information.  It would also mean that cases where the public interest is finely balanced could be refused because it will take too long.  This could conceivably prevent important information exposing wrongdoing in a public authority from being revealed.  It would, in my view, fundamentally undermine the purposes of the FOIA.  The Government is also considering slightly reducing the current 24/18 hours limits.

Another issue, which I hadn’t initially picked out, is the Government’s indication that multiple requests by one person on unrelated issues to a public authority could be grouped together.  Currently, making multiple requests on the same (or substantially similar issues) can be grouped together for the purposes of the repeated/vexatious exemption.  Permitting the grouping together of unrelated requests by a named individual or group will likely harm journalists.  One of the fundamentals of the FOIA is that it is supposed to be “applicant blind” there is no way that such a change could be implemented which wouldn’t harm journalists without giving consideration to the identity of the applicant.  Imagine the effect on large organisations like the BBC or large national newspapers that might make a large number of requests on different issues to public authorities.  As a result of this change a request which could uncover wrongdoing could be refused because they’ve exceeded their “quota” of FOI requests to the public authority.

Another concerning issues is the Government’s apparent intention to extend the use of the so called “ministerial veto”.  This would be concerning if the veto was to be used widely an in circumstances that are not exceptional.  The point of the ICO and appeals from there to tribunals and the courts is to allow independent people to consider the request and information objectively.  It would undermine the purposes of FOI if the Government were regularly to become the final arbiter of what information they hold gets released.  We’ve already seen an increased use of the veto since the 2010 election; most recently to hide the content of letters Prince Charles had sent to a number of Government departments.

On the whole; there are some excellent things from the Government’s response that will strengthen FOI.  However, there are also things which are of concern and could weaken the FOI regime and should be opposed if the Government tries to introduce them.  No doubt there will be further blog posts on FOI to come as both the UK and Scottish Government’s go about amending the respective FOI legislation.

If you’ve read the blog post to the end then thanks and congratulations!  I could have said much more, but didn’t want to write a full-blown essay on the Government’s response.  The Government’s response can be read here.

FOISA, Freedom of Information, Save FOI, Scots Law

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.