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Commissioner's 500th decision orders release of unsolved murder file

The Scottish Information Commissioner, Kevin Dunion, published his 500th decision this week, coincidentally 1000 days since the Freedom of Information (Scotland) Act 2002 (FOISA) came into force in January 2005.

The Commissioner has ordered Tayside police to release information relating to the investigation of the unsolved murder, in 1912, of Miss Jean Milne of Broughty Ferry, near Dundee (1). The information was requested by Mr Raphael-Beldowski, the grandson of one of Miss Milne's neighbours, and marks the first time the Commissioner has ordered the release of witness statements in a criminal investigation.  It comes at a time when evidence suggests Scotland is becoming a more open society as a result of FOISA, and that the Act is being used much more extensively than its UK equivalent.

In reaching his decision in Mr Raphael-Beldowski's appeal, the Commissioner found that, while the exemptions cited by Tayside police to justify non-disclosure (ie that the information related to proceedings arising out of a criminal investigation) do not fall away over time, the balance of the public interest can and will shift.  In this case, no living person can stand trial for the murder, and few if any witnesses to the crime will still be living.Tayside police indicated that it is highly unlikely that the case will be re-opened, and the Commissioner was not persuaded by arguments that disclosure might impede future investigations.  He therefore found that it was in the public interest for the information to be released.

As he issued this milestone decision, Commissioner Kevin Dunion said:

"The experience of the first 1000 days of freedom of information shows real progress.Our laws stand up well to international comparison, and Scottish public authorities are providing more information than ever before. However if the public do not get what they want they are not slow in appealing to me, as in this case where I have ordered the release of witness statements in a criminal investigation for the first time."

The decision coincides with research showing that 89% of Scottish public authorities feel they are more transparent as a direct result of the legislation (2). FOISA is actively changing society - information such as surgical mortality rates and numbers of registered sex offenders has now been put into the public domain as a direct result of appeals made to the Commissioner under the Act.

Scots are also making strong use of their FOI legislation ? on a pro-rata basis, applications to the Scottish Information Commissioner in 2006 were double the UK rate, and the Scottish Commissioner has issued 7 times as many decisions per head of population in Scotland than his UK counterpart, since the Act came into force (3).

Ends

For further information contact Susan Gemmell or Paul Mutch on 01334 464610, out of hours, 07976 511752.

Notes to Editors:

(1) Decision 174/2007 Mr Edmund Raphael-Beldowski and the Chief Constable of Tayside Police

Full text of this decision has been published on the Commissioner's website here:Decision 174/2007

In August 2005, Mr Raphael-Beldowski wrote to Tayside police asking for information relating to an unsolved murder which took place in Broughty Ferry in 1912, and transcripts of a trial relating to that murder.

Tayside police refused to disclose the information, upholding their decision on review, citing Section 34(1)(a)(i) and (b) of FOISA ? namely that the information had been held by them for the purposes of investigating whether a person should be prosecuted for an offence; and that they might make a report to the procurator fiscal to enable it to determine whether criminal proceedings should be instituted.

Tayside police further argued that it was in the public interest to maintain the exemption, claiming disclosure could impede future witnesses from giving statements and cause damage to the reputation of a suspect who was investigated but released without trial.

The Commissioner concluded that there would be no harm to the public interest in disclosure as: no living person can now stand trial for the murder; few if any witnesses to the crime will still be living; Tayside police do not plan to re-open the case; and the suspect was publicly named at the time of the investigation, so any harm to his reputation has already taken place.

(2) "The Freedom of Information (Scotland) Act 2002: New Modes of Information Management in Scottish Public Bodies?"

  • This research, published on 28th September 2007, was conducted by Dr Eleanor Burt, University of St Andrews, and Professor John Taylor, Caledonian Business School.
  • The aim of the research was to examine the extent to which, and how, the FOI Act has impacted upon information management arrangements in Scottish public bodies.
  • A copy of the research report is available here: Scotland rises to the challenge of FOI...but more can be done

(3) Comparison with the rest of the UK

  • An analysis of statistics in September 2007 showed that the Scottish Information Commissioner had issues 95.8 decisions per million head of population in Scotland, compared to 12.7 decisions per million head of population issued by the UK Information Commissioner.

Freedom of Information Legislation

  • The Freedom of Information (Scotland) Act 2002 (FOISA) provides a statutory right of access to all information held by Scottish public authorities. This right came into effect on 1 January 2005.
  • The Freedom of Information Act 2000, the equivalent Act which covers England and Wales, came into effect on the same day, and is enforced by the UK Information Commissioner, Richard Thomas.
  • Around 10,000 public authorities in Scotland are covered by FOISA, including the Scottish Parliament and Executive, police forces, the NHS, local authorities and education institutions.
  • Information can only be withheld by a public authority if it falls under one of the exemptions listed in FOISA. If an individual believes an authority is wrong to withhold information, they ultimately have a right of appeal to the Scottish Information Commissioner, who can require release.
  • The parties to any case have the right to appeal against the Commissioner's decision to the Court of Session on a point of law only.

The Scottish Information Commissioner

Kevin Dunion the Scottish Information Commissioner is a fully independent public official, appointed by the Queen on the nomination of the Scottish Parliament.

His duties and powers are to ensure that people get the information from Scottish public authorities to which they are entitled.

His role actively promotes and enforces compliance with FOISA.

 

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