Category: Scottish Information Commissioner

Technical meanings and Information Requests

Last week Rosemary Agnew, the Scottish Information Commissioner, issued another important decision under the Freedom of Information (Scotland) Act 2002 (FOISA). In finding that the Scttish Ministers had breached Section 1(1) of the FOISA by interpreting a request in an unduly restrictive way the Commissioner reminded public authorities that they need to think like the public when considering a request.

In decision notice 122/2012 the Commissioner considered a request for information made to the Scottish Ministers regarding the awarding of a Damehood to Elish Angiolini, former Lord Advocate.  The applicant had sought “information on the awarding of (and any proposal to recommend) a Damehood (DBE) to former Lord Advocate, Eilish Angiolini, including the identity of who in the Scottish Government recommended her for the honour.” (Para 1).  Following investigation by the applicant, he discovered that there was a difference between “nomination” and “recommendation” in the honours process.  The Ministers refused to accept that the applicant’s request was inclusive of both and sought to argue that the applicant was trying to widen his request at this stage.  The Commissioner was not convinced.

In her decision, the Commissioner, states that she did “not consider that the distinction between the two [nomination and recommendation] is generally known” (para 19) nor that the applicant “intended to make such a distinction in his request” (para 19).  The Commissioner said, also at paragraph 19, that:

It is unrealistic to expect those who make information requests to be aware of the technical or specialised language used by public authorities

The Commissioner also decided that the Scottish Ministers were entitled to rely on Section 18 of FOISA to refuse to confirm or deny whether information was held by them which fell within the scope of the request (on a proper interpretation of the request).

This is one thing that has infuriated me a lot with certain public authorities.  When public authorities use words in a different way from the ordinary meaning they should not expect the public to be aware of this and should interpret requests accordingly.  If they are unsure as to the meaning of the request (and it is reasonable for them to be unsure) then they always have the option of seeking clarification from the applicant.

This decision is a clear signal to public authorities subject to FOISA that they must not interpret requests in an unduly narrow way based on the technical use of words where the technical use of that word is not commonly known to the public.  Common sense should have dictated to public authorities prior to this decision that such interpretations would likely be contrary to both the letter and spirit of the Act.

This is another sensible decision from Scotland’s new Information Commissioner which strengthens the Act and provides strong guidance to public authorities on the practical operation of FOISA.

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

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

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

The BBC quote a Scottish Government spokesperson as saying:

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

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

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

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

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

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

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

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

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

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

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

Scottish Information Commissioner tackles University’s FOI failings

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

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

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

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

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

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

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

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

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

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