Category: Scottish Information Commissioner

Gilroy -v- Scottish Information Commissioner

The Court of Session has issued a rare judgment in respect of an appeal under the Freedom of Information (Scotland) Act 2002 (FOISA). Yesterday the First Division published its judgment in the case of David Gilroy –v– The Scottish Information Commissioner and the Chief Constable of Police Scotland.

The Appellant, David Gilroy, had been convicted of the Murder of Suzanne Pilley at the High Court of Justiciary. Mr Gilroy sought information from the Police Service of Scotland, as the statutory successor to Lothian and Borders Police (who had conducted the investigation to the murder of which Mr Gilroy has been convicted). The information he sought related to CCTV that had been seized by the Police as part of the murder investigation. The Police initially responded by saying that the information sought had been released to Mr Gilroy’s defence team and so he could obtain it that way, but had not complied with the technical requirements imposed in FOISA for a refusal notice. Mr Gilroy required that the Police conducted a review into their handling of the request. In response to the requirement for review, the Police refused the request on the grounds that it was exempt under section 38(1)(a) of FOISA – which provides that information to which the applicant is the data subject of is exempt. This is an absolute exemption and therefore it is not subject to the public interest contained in section 2 of the FOISA. Such information can be sought by way of a ‘subject access request’ pursuant to section 7 of the Data Protection Act 1998. The Police also cited the exemption at section 34(1)(c) of FOISA.

Mr Gilroy made an application to the Scottish Information Commissioner pursuant to section 47(1) of FOISA. The Commissioner issued a Decision in respect of that application (Decision 005/2015) finding that the Police were correct to withhold the information under section 38(1)(a). Section 56 of the FOISA provides a right of appeal to the Court of Session against a decision of the Scottish Information Commissioner on a point of law. Mr Gilroy appealed the decision of the Scottish Information Commissioner to the Court of Session.

The Court of Session’s decision is a short one. The relationship between the Data Protection Act 1998 and FOISA has been the subject of previous litigation and nothing new was brought out in this case. The litigation that has previously occurred in this field has confirmed that the question of whether information is personal data is a factual one. The Lord President (Carloway), in giving the decision of the Court, considered that there was “no identifiable error of law” in the Commissioner’s decision (para [14]) and that there was no “point of law to be considered” (Para [15]). The Lord President’s judgment states that Mr Gilroy’s appeal was “essentially an application to this court to review an assessment of fact made by the first respondent”. Mr Gilroy’s appeal was therefore refused by the Court.

The judgment does highlight (once again) the wide scope of the definition of personal data in the Data Protection Act. The Information in question was not stills or footage from the CCTV, but rather a list of images together with details such as location, dates and times. This was considered by the Court to clearly be within the definition of personal data and that the Appellant was the data subject (para [14]).

The Commissioner did not consider in her decision the question of the application of section 34(1)(c) to the information because it was, in her view, exempt under section 38(1)(a). The Court of Session therefore did not consider it either.

The Court’s judgment can be read on the Scottish Courts and Tribunals website here.

Police Service of Scotland and Information Management

Friday 13th is a much disliked date on the calendar and is often said to be unlucky amongst the superstitious. It would seem that Friday 13th February isn’t turning out to have been a great day for Sir Stephen House, the Chief Constable of Scotland’s national police force. On 13th February the body that is responsible for holding the Chief Constable to account, the Scottish Police Authority, convened a Special Board meeting to discuss the growing disquiet amongst many groups over the use of stop and search tactics by the Police Service of Scotland (PSoS). The SPA questioned the Chief Constable and one of his two deputies, Deputy Chief Constable Rose Fitzpatrick on the issue. Information released by the Scottish Information Commissioner today adds another blow to the Chief Constable in what could be described as a very long round in an extremely long boxing match.

The PSoS has faced a great deal of criticism over its use of stop and search, particularly non-statutory (or “consensual”) searches and especially non-statutory searches on minors under the age of 12. Last year an undertaking was given to the Scottish Parliament’s Justice committee that the PSoS would effectively ban its officers from undertaking non-statutory searches on minors under the age of 12. Earlier this month the BBC published a huge volume of data that suggested that this had been ignored on a large scale.

It has transpired that the information was obtained by the BBC under the Freedom of Information (Scotland) Act 2002 (FOISA). We have learned that this came following an initial refusal by the PSoS to release the data allegedly over concerns as to its accuracy. When the Chief Constable appeared before the Scottish Police Authority he stated that he had been forced by the Scottish Information Commissioner to release the information. That, as it turns out, wasn’t quite the case. The PSoS released the information following external legal advice. From what is available it suggests that the legal advice obtained by the PSoS advised that not releasing the data risked an adverse decision notice and as a consequence of that, the PSoS released the information to the BBC journalist who had requested it.

FOISA gives a right to individuals to access information held by public authorities in a recorded format. There is no right in FOISA to be given accurate information, nor is there an exemption in FOISA to enable public bodies to withhold information that is, or is believed to be, inaccurate. This is not a new thing; it has been the position for some 10 years now. If a public authority holds information in a recordable format and none of the exemptions in FOISA apply, then a person who asks for that information is entitled to be given it.

If the information is inaccurate that is the public authority’s problem, not the requesters. If a public authority cannot have in place measures to ensure that the information it is recording is accurate, then that says a lot about the authority. This whole fiasco has raised some serious questions about information management within the PSoS. It would seem that police officers have been routinely entering incorrect information into the PSoS systems that record stop and searches. That is something that must be rectified, and not just from an FOI perspective. If the information that the PSoS holds is not accurate that will result in a significant knock-on effect across the whole organisation. It means that everyone, from the Chief Constable down, is working from dodgy information. Such a situation means that decision-making across the organisation is weakened.

What is even more astounding was the Chief Constable’s admission to the Police Authority that he could not give a 100% assurance over other data held by the PSoS. That is quite an admission to be made by the Chief Constable to the body that holds him to account. It casts doubt on the accuracy of all data held by the PSoS; including recorded crime.

FOI here has proved itself rather useful. We may not be wiser about the extent to which the PSoS is using stop and search in Scotland, but what it has revealed is failings in the ability of the PSoS to accurately record what it is doing. It has opened up to scrutiny the information management practices of the PSoS and in the furore over stop and search sight should not be lost of what is a significant admission by the Chief Constable of the PSoS. A debate over the use of stop and search in Scotland still has to be had, but sorting out the apparent mess of the systems used by the PSoS to record data has to feature highly on the list of priorities for the Scottish Police Authority and HMICS. We cannot have a situation where there is a lack of confidence in the data held by the PSoS.

The new Scottish Public Authorities: Who are they?

On 1 April 2014 the Freedom of Information (Scotland) Act (Designation of Persons as Scottish Public Authorities) Order 2013 (‘2013 Order’) enters into force and it is the first such Order made by the Scottish Ministers under section 5 of the Freedom of Information (Scotland) Act 2002 (‘FOISA’) since FOISA entered into force.

The 2013 Order will make new bodies subject to the provisions of FOISA, and by extension* to the Environmental Information (Scotland) Regulations 2004 (‘Scottish EIRs’). The 2013 Order does not list specific bodies which will become subject to FOISA and the Scottish EIRs, rather it describes the bodies that are to be made subject to FOISA and the Scottish EIRs. The Schedule to the 2013 Order has two columns, and the bodies which fall within the description in Column 1 will becomes subject to FOISA and the Scottish EIRs for their functions described in Column 2.

Column 1
By virtue of Column 1 a body which has been established or created solely by one or more local authorities who on behalf of any of those authorities developed and/or deliver recreational, sporting, cultural or social functions and activities, and are wholly or partially funded by any of those authorities will become subject to FOISA and the Scottish EIRs.

This refers to Arms Length External Organisations (ALEOs) established by one or more of the 32 local authorities in Scotland to develop and/or provide recreational, sporting, cultural or social functions and activities which receive funding from those local authorities. It is much wider than the section 6 provisions which relates only to companies wholly owned by one or more Scottish public authorities. This modification to FOISA will cover many different structures of organisations from Partnerships, Limited Liability partnerships, Trusts and many other different business structures.

Column 2
The bodies covered by the definition in column 1 will only be subject to FOISA and the Scottish EIRs in relation to their functions mentioned in Column 2. Column 2 refers to a number of sections of legislation which give local authorities the power to carry out certain factions. The functions are listed below with a brief explanation of what they mean.

Section 90 of the Local Government (Scotland) Act 1973
This section gives local authorities the power to carry out certain functions in respect of tourism. This includes the provision, or encouragement of any other person to provide, facilities for leisure, conferences, trade fairs and exhibitions or improve, or encourage any other person to improve, any existing facilities for those purposes; the promotion, by advertisement or otherwise, of facilities provided by that local authority (whether such facilities are owned by the authority or otherwise); and the organising, or assisting others in the organisation of, and promotion, by advertisement or otherwise, conferences, trade fairs and exhibitions.

Section 163 of the Local Government (Scotland) Act 1973
This section (or what is left of it) gives local authorities a duty to provide adequate library facilities for all persons resident in their area.

Section 14 of the Local Government and Planning (Scotland) Act 1982
Broadly speaking, this section places upon local authorities a duty to provide adequate provision of facilities for the inhabitants of their area for recreational, sporting, cultural and social activities.

Section 20 of the Local Government in Scotland Act 2003
This section provides for a general power for local authorities to do anything that it considers is likely to promote or improve the well-being of its area and/or any persons in its area.

What does it actually mean?

I am not so sure that any of the above actually brings us closer to understanding just who will be subject to FOISA and the Scottish EIRs following the entering into force of the 2013 Order. Some of the most notable examples though will include leisure trusts (which are not companies, who are already subject to FOISA and the Scottish EIRs) and bodies responsible for the provision, maintenance and development of library facilities.

There are certainly benefits to drafting the 2013 Order in this way. Had the Scottish Ministers simply listed specific bodies it would have become out of date very quickly. The provision of services by local authorities is very fluid and can change overtime. ALEOs can exist and then be merged or wound-up, their functions can be taken back in-house only to later be put out to another ALEO. It will largely protect against the fluidity of ALEOs and should hopefully ensure that we don’t see (at least in respect of services provided by local authorities) the reduction in information access rights that has been seen since the introduction of FOISA in 2005.

How to know if a body is covered
In the first instance it is going to be largely up to the individual body to determine if it is covered by the extension, and if so to what extent. In theory they should already have been making preparations by putting in place a publication scheme (which in practice will likley be simply to adopt the Commissioner’s Model Publication Scheme) and a framework for dealing with requests. However, there might have to be some testing of the law in respect of some bodies.

The easiest way to find out if a body is covered is probably to approach the body. If they say that they are then you can go ahead and make your request like you would to any other Scottish Public Authority (‘SPA’). However, if they say they are not you might have to be a bit more persistent. Ultimately, it will be for the Scottish Information Commissioner (as the person responsible for enforcing FOI law in Scotland) to determine whether a body is a SPA or not. She can only accept an application after a request for information has been made and a request for internal review has also been made. This will mean that it will be necessary to go through the process of submitting a request and either waiting for word from the body that they won’t respond or for 20 working days to elapse without a response before then submitting your internal review and again waiting for word from the body that they won’t respond or for 20 working days to elapse without a response.

A determination by the Commissioner that a body is (or isn’t) a SPA by virtue of the 2013 Order wouldn’t necessarily be the end of the road. A decision by the Commissioner that an application cannot be accepted by her is open to the possibility of an application for Judicial Review, while a decision notice issued against a body that disagrees with the determination that it is covered could be open to appeal to the Court of Session under section 56 of FOISA (and then to the Supreme Court).

*by virtue of Regulation 2 of the Scottish EIRs any body listed in Schedule 1 to FOISA or designated under Section 5(1) of FOISA is also subject to the Scottish EIRs.

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.

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.

FOI and requests for documents

In yesterday’s regular ‘decisions round-up’, the Scottish Information Commissioner once again issued warnings about valid FOI requests to public authorities. It has been a theme in recent months that authorities have been refusing requests for documents on the basis of the request not being a valid information request.

It is absolutely correct that the Freedom of Information (Scotland) Act 2002 does not provide a right to copies of documents, but to information. That is clear from Glasgow City Council v Scottish Information Commissioner. However, the Commissioner (both the previous and the incumbent commissioners) have said that a request for copies of documents remains a valid request for information. This is on the basis that section 8 of the FOISA requires that a person adequately describes the information that they are seeking in order to enable the public authority to locate it. There can be no better explanation of the information sought than reference to specific document(s). Such requests hugely reduce the amount of work that a public authority has to do in order to locate the information. Refusal is likely to cost the authority more as appeals to the Commissioner will take up time which could have been better spent simply progressing the request. In the end they’re still probably going to have to process a request, even if it is re-worded slightly, and they will have wasted money on the initial refusal.

As has already been said in this post (and in others on this blog), FOISA does not give people a right to a copy of a document, only to the information contained within it. It would not be very cost effective for the public authority to reproduce an entire document, so it’s likely that in practice an applicant will receive a copy of the document (with any redactions made by the authority) in fulfilment of their request.

Public authorities should only really be refusing requests for non-compliance with section 8(1)(c) where it is not at all clear what information the applicant is actually seeking, not because they’re not familiar with the intricacies of Freedom of Information law. Their ‘advice and assistance’ duty might well mean that when issuing a substantive response to the request that they advise of the right to information and not to documents.

While public authorities should not be refusing requests on the grounds that applicants are not entitled to documents, but rather to the information contained within them, it might be sensible simply to ask for “all the information contained in…” or “the full content of…”; doing so will likely save applicants the frustration of dealing with a pedantic authority acting against the clear advice of the Scottish Information Commissioner.

OSIC Decison 42/2013: Mr Ackroyd and the University of St. Andrews

I’ve been meaning to blog about this particular decision of the Scottish Information Commissioner for a couple of weeks now, but have just not had the time. On 14 March 2013 the Commissioner issued her decision regarding a complaint made to her by Mr Martin Ackroyd in respect of the way in which the University of St. Andrews handled an information request (Decision 42/2013).

The background is set out in paragraphs 1 – 6 of the Commissioner’s decision. Mr Ackroyd requested information in respect of E-mails received by a particular employee of the University. The employee had written an article on an internet blog. The employee later commented on the article alluding to embarrassing E-mails that he had been receiving as a result of the article. It was these E-mails that Mr Ackroyd had requested.

The University argued that it did not hold the information for the purposes of the Freedom of Information (Scotland) Act 2002 (FOISA) stating that it held them on behalf of the employee (thus they would fall outside of the scope of FOISA by virtue of section 3(2)(a)(i) of the Act). In the alternative it argued that even if it did in fact hold the E-mails that they would be exempt from disclosure under sections 38(1)(b) and 36(1) of FOISA. These exemptions relate to personal information and confidentiality respectively.

Mr Ackroyd was dissatisfied with the Universities response and sent a requirement for review to the University. In response the University upheld its original decision with modification. The University still argued that the E-mails were not held for the purposes of FOISA, but if they were they would also be covered by section 30(b)(ii) of FOISA which relates to information which if disclosed would or would likely be to inhibit substantially the free and frank exchange of views for the purposes of deliberation.

Mr Ackroyd remained dissatisfied and sought a decision from the Scottish Information Commissioner pursuant to s.47(1) of FOISA.

The first thing that the Commissioner decided was that at least some of the information held was environmental information within the meaning od Regulation 2 of the Environmental Information (Scotland) Regulations 2004 (EISRs). As a consequence the decision considers both FOISA and the EISRs.

The facts of the request get slightly more complicated. The employee in question had bene the convener of a seminar held at the University and the blog that was written related to that seminar; it was published shortly after. The decision notes that Mr Ackroyd drew attention to a certain comment in the blog piece “indicating that he [the employee] was commenting in his capacity as the convenor of the seminar” (paragraph 28). The decision also records (at paragraph 28) that the employee had commented on the blog and mentioned papers that he (the employee) had written on the subject in question. Mr Ackroyd argued that these two things together (along with other matters dealt with in paragraphs 29-31 of the decision) meant that the employee was acting in his capacity as an employee of the University.

The University argued that the life of an academic is such that the connection between work and private life is so fine and that sometimes they cross over. They argued that an academic might use their association with the university in order to gain some credibility in their private life rather than as an employee of the university. The University also argued that the convention of academic freedom created some independence between the University and its academics. “The University also stated that it (and universities in general) extended to academic communities a relatively high degree of space, freedom and autonomy to engage with academic disciplines and pursuits and, as a result, information may be created which it would not move to claim or exert control over.” (para35)

There are more to the arguments of Mr Ackroyd and the University, but for the sake of brevity and so as to avoid replicating the Commissioner’s decision in full I have not mentioned all the ones referenced in the Commissioner’s decision. They can be read in full in paragraphs 26-38 of the decision.

What did the Commissioner find?

The Commissioner decided that the seminar which had been chaired by the employee was part of the employee’s work at the University (paragraph 43). The Commissioner also decided that the blog post was a continuation of the discourse of the seminar which he had chaired in his capacity as an employee of the University (paragraph 43) and that the employees ongoing involvement in the discussion that arose out of the seminar cannot be separated from the employee’s work at the University (paragraph 44). Despite the personal nature of the e-mails the commissioner decided that they were held by the University for the purposes of FOISA (paragraph 49). Paragraphs 60-62 deal with whether the information was held for the purpose of the EISRs and the commissioner reached the same conclusion as she did in respect of section 3(2)(a)(i) of FOISA (paragraph 62).

The Commissioner then went on to consider the exemptions that the University would have sought to apply had it been the case it held the information (which the Commissioner determined it did). For the reasons set out in paragraphs 51-57 the commissioner found that section 30(b)(ii) of FOISA was not engaged and therefore not relevant. No consideration was given to section 36 as it would appear that the University may have stopped relying on that exemption.

The Commissioner ordered the release of the withheld information to Mr Ackroyd subject to some redactions made by the Commissioner.

Discussion

Before giving my thoughts on the decision I will note that I have only the Commissioner’s decision to go on. I have not seen the blog or the comments nor have I seen the E-mails in question.

This is an interesting decision and one of importance for the Higher Education sector. The decision explores some of the anomalies in the academic world that do not generally appear in other public authorities; namely the convention of academic freedom. However, the decision could have wider application beyond the Higher Education sector.

Should academics be worried about the impact of the decision? I would suggest that they should not be. It appears clear from the decision that where there is a genuine separation between the work undertaken by an academic on behalf of the University and that undertaken by the academic in a private capacity that the information will not be subject to FOISA.

For example, if an individual gives a lecture to an organisation because they are a specialist in the field and they mention their connection to a University I don’t think anything held on the University’s computer systems (or indeed the academic’s private systems) would become subject to FOISA simply because they establish their credibility by referencing the University at which they work. Only where that lecture was given in the course of the academic’s employment at the University would it become subject to FOISA.

It is clear that the balance between what an academic does privately and what they do as part of their employment at the University is finely balanced. Simply because an academic undertakes work in their spare time and the work is not such that the University would lay claim to it or it was not work which the University had sought the employee to undertake will not meant that it is not subject to FOISA or the EISRs.

It’s certainly an important decision and one that all FOI Officers in Scottish colleges and universities should have tucked away for reference to at a later time; it is not unlikely that similar situations will arise again in the future (especially given the public nature of academics work).

The importance of FOI training in public authorities

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

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

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

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

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

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

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

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

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

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

Section 18 of FOISA provides:

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

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

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

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

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

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

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

Validity of Information requests: Copies of documents or Information

The Freedom of Information (Scotland) Act 2002 (FOISA) provides a right of access to recorded information held by public authorities. Section 1(1) of FOISA says:

A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.

There are exceptions to this general entitlement, found within Part 2 of the Act, but they are not relevant for the purposes of this article.

The general entitlement is the right to information rather than copies of documents, letters etc. What this means is that under FOISA anyone is entitled to be provided the information contained within documents, letters, E-mails, notes etc. unless the information contained within the document is exempt. Where some information is exempt and some is not then the public authority must provide the information that is not exempt if it falls within the scope of a request.

This issue has been considered by the Court of Session in Glasgow City Council and Dundee City Council v The Scottish Information Commissioner 2010 S.C. 125. In essence, insofar as this article is concerned, found that the right that FOISA provides is one to the information contained in the documents rather than the actual documents.

Following the Glasgow City Council case in the Court of Session the then Commissioner, Kevin Dunion, issued guidance to public authorities on information requests and the effect of the Court of Session’s judgment. At paragraph 3.4 of that guidance it states:

Therefore, where an applicant has asked for a copy of a document and it is reasonably clear in the circumstances that it is the information recorded in the document which the applicant wants, the public authority should respond to the request as a request properly made under FOISA. A reference to a specific document is a commonplace way of describing the information sought and can be of assistance to an authority in identifying and locating the information. Such a reference can also benefit the authority by limiting the scope of the information request, e.g. to that contained in a minute of a certain date.

This seems a somewhat reasonable piece of guidance to be issued to public authorities. It would be the common sense conclusion of a public authority when faced with a request for a specific document or set of documents to assume that the requestor wants the information to be found with that document or set of documents. Why else would they be asking for the document if they were not interested in its contents?

As a public authority is not obliged to provide copies of documents and only the information to be found within the document it is not necessary for a public authority to send a copy of the document in question to the applicant. They could summarise its contents or they could copy and paste the content of the document into an E-mail or indeed into another document. When the request is for the entire content of a document then it is often easier for the public authority just to provide a copy of the document in question (and often this is often the basis upon which a response is issued). Where only part of the document falls into the scope of the request then, sensibly, public authorities will usually provide an extract of the document.

There are problems with simply providing summaries of whole documents, or indeed summaries of only parts of documents, rather than the actual content. Applicants are entitled to a complete and accurate version of the information (paragraph 4.1 of the Commissioner’s Guidance). When public authorities start to issue only summaries of documents they run the risk of failing to provide all the information that falls within the request for information. This was demonstrated recently in Mr Tom Taylor and the Chief Constable of Strathclyde Police. In this case Mr Taylor had asked the Chief Constable of Strathclyde Police (“Strathclyde Police”) for copies of certain pieces of correspondence. Strathclyde Police relied on the Glasgow City Council case and supplied only a summary. “This comprised a table specifying the correspondence type, its subject matter, date and the sender and recipient.” (Decision 131-2012, paragraph 3)

The Commissioner found this summary to be inadequate. The decision notice states at paragraph 63:

In his application, Mr Taylor commented that, although the information disclosed in response to request 1 was described as being a summary, he had not in fact been provided with a summary of the information.

The decision notice continued at paragraphs 67 and 70:

In this case, Mr Taylor’s request was very clearly specified, indicating the subject of and the parties to the correspondence of interest to him, along with a period of approximately six months. Given that Strathclyde Police were able to provide a list of relevant correspondence, it is clear that they were able to locate that information. The Commissioner therefore considers that Mr Taylor made a valid request for information for the purposes of FOISA, effectively seeking all information within the correspondence he specified.

…..

By seeking copies of the documents, Mr Taylor made it clear that he wished to receive the information in full rather than a summary or digest. Strathclyde Police’s response neither provided the information requested, nor gave any proper notice to indicate why the information had been withheld.

As a result the Commissioner found that Strathclyde Police had failed to fully comply with Part 1 of FOISA by failing to provide Mr Taylor all of the information that fell within the scope of his request. In this instance it would have been far easier for Strathclyde Police to provide redacted copies of the correspondence while, in accordance with their duty to provide advice and assistance, to refer Mr Taylor to the Glasgow City Council case and advise him that he is entitled to the information contained in documents rather than copies of the documents

The Commissioner has been critical of the way in which Strathclyde Police have handled this request for information. I have been aware of instances where Strathclyde Police have been what can be described as rather pedantic about the way in which it interprets requests and ignores the Commissioner’s guidance. Although, my own personal experience of requesting information from Strathclyde Police is that they have been helpful and I’ve rarely had any real complaint with their responses.

Rosemary Agnew, as the new Information Commissioner, has signalled her agreement with the position adopted by the previous Commissioner when it comes to handling requests for information where the request seeks copies of documents. However, there are a number of ways in which you can avoid receiving responses from public authorities which are nothing other than pedantic.

Mentioning specific documents in requests is a great help to public authorities as it restricts the amount of searching that has to be done in order to locate the information you are seeking. This reduces the chances of getting a refusal based upon the cost of complying with the request and certainly complies with the requirement at Section 8 to describe the information you are seeking. However, rather than asking for copies of documents the Commissioner suggests that you ask for the information contained in a document. For example, a request for “copies of correspondence between X and Y” becomes a request for “the information contained in correspondence between X and Y”. Personally, when I make information requests I will usually ask for the “content” of documents or correspondence.

This decision notice provide valuable guidance for applicants and public authorities. It also serves as a warning to public authorities who might consider responding to requests for information by providing summaries or digests of the information contained within documents.

Links

Freedom of Information (Scotland) Act 2002
Glasgow City Council and Dundee City Council v The Scottish Information Commissioner
Commissioner’s Guidance following Glasgow City Council case
Decision 131/2012 Mr Tom Taylor and the Chief Constable of Strathclyde Police