News and Commentary from the Scottish Information Commissioner

News and Commentary from the Scottish Information Commissioner

December 2011 

 
In this issue I introduce my 2010/11 Annual Report, provide an update on the 2011 FOI Conference, and explore a number of recent decisions which considered whether requests are vexatious.
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The Facts at Your Fingertips - 2010/11 Annual Report

In November I launched my 2010/11 Annual Report - entitled The Facts at Your Fingertips. This is the first time I have produced an annual report for a financial year, in response to new legislative requirements. I had last reported at the end of 2010, so this new report provided an opportunity for further reflection on another very busy year for my office.

The report reveals that there is no sign of the public's appetite for FOI diminishing. We responded to 1,634 enquiries from people seeking advice and guidance on FOI matters during 2010/11 - the highest number since 2005/6, when FOI rights came into effect.

Appeals to the Commissioner also grew, with the first 3 months of 2011 seeing 20% more appeals than predicted. Members of the public continue to be responsible for most appeals, with 75% of appeals in 2010/11 and 59% of enquiries coming from the public. Indeed, the subject matter of the cases investigated closely reflects the current concerns of the public, with an increasing number of appeals relating to issues of employment, finance or expenses. These issues accounted for 24% of total appeals in 2010/11, up from 15% in 2009/10.

Despite this increasing caseload, we continue to resolve FOI appeals as quickly and effectively as possible, with the average age of open cases at the end of 2010/11 reaching a new low at 4.4 months, and only 17% of cases under investigation being over six months old (compared to 36% in the preceding financial year).

The swift resolution of FOI appeals is important - most FOI requests are 'time-sensitive', with the information sought often being required to shed light on important personal or community concerns. It is a testament to my staff that, despite the constraints on our resources, we continue to deliver against our own challenging investigation targets.

The report also contains an update on the progress of our successful Practice Assessment Programme. Through this programme, my staff undertake around 12 visits a year to public authorities to assess their FOI procedures, identify good practice, and support improvements in their FOI response. The assessment process involves working closely with authorities to support them in developing practical solutions to any problems that are identified, ensuring that issues can be quickly resolved. The Annual Report 2010/11 contains an overview of the good practice areas identified through the Assessment Programme to date.

The electronic version of the 2010/11 Annual Report, which also includes downloadable data sets, detailing appeal statistics for public authorities across Scotland, can be accessed at: www.itspublicknowledge.info/facts.

The 2010/11 report is my final annual report before I demit office as Commissioner in February 2012. It will not, however, be my final report to Parliament. In January, I intend to lay a Special Report before the Parliament, which will contain a personal analysis of the current state of FOI in Scotland - assessing what we have achieved to date, and making recommendations for ways in which Scotland's FOI regime can be strengthened and clarified.

 

Freedom of Information Conference

The 9th Annual Holyrood Freedom of Information Conference will take place on Friday 16 December, at the Royal College of Surgeons Quincentenary Hall in Edinburgh. The Conference, subtitled A Time of Change, will reflect on the progress of FOI in Scotland to date, while also exploring the opportunities and challenges that FOI practitioners are likely to face in the future.

Speakers at the conference include the architect of FOI in Scotland, and former Deputy First Minister, Lord Wallace of Tankerness; Minister for Parliamentary Business Brian Adam MSP; and Maurice Frankel, Director of the Campaign for Freedom of Information. The afternoon session will also see the return of the successful master class format, where breakout groups will debate and explore current issues in FOI - including the relationship between FOI and data protection, 'best practice' lessons emerging from the assessment programme, and what can be done to help ensure that FOI requests are framed as effectively as possible.

The day will conclude with my final address to conference as Scottish Information Commissioner. Details of the full programme are available at www.holyrood.com/foi.  I hope to see you at what is once again sure to be an informative and thought-provoking day.

Kevin Dunion's Signature

Kevin Dunion
Scottish Information Commissioner

 
 
At a glance - November 2010 to October 2011

Graphs showing Appeal and Enquiry Statistics

 
Key decisions issued
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When is a request vexatious?

A number of recent decisions have looked at whether requests made to public authorities should be refused on the grounds that they are "vexatious". Under section 14 of the FOI Act, public authorities don't have to comply with a request where it is vexatious or repeated.

One case which attracted significant media attention concerned a request by the tobacco firm Philip Morris International (PMI), for information about research carried out by the University of Stirling's Centre for Tobacco Control Research. The University considered PMI's request to be vexatious but, following PMI's appeal, the Commissioner disagreed. While the Commissioner considered that the request would place a significant burden on the University, he found that that fact alone was not enough to make the request "vexatious". He found that there was a legitimate reason for the request to be made, and there was no evidence that its purpose was to disrupt or annoy the University. The fact that PMI may disagree with the research being carried out was not enough to make the request vexatious.

Since the Commissioner's ruling, the University has gone on to refuse the request from PMI on the grounds of excessive costs, and the Commissioner understands that PMI has not challenged this decision.

A requester's past dealing with an authority will often be a relevant factor in determining whether a request is vexatious. In two recent decisions, involving the Scottish Prison Service and the University of St Andrews, for example, the Commissioner took requesters' past dealings with the authorities into account when determining that their requests were vexations.

Authorities must be mindful, however, that it is the request that must be shown to be vexatious, rather than the requester. This was relevant in a recent case involving a request made to Scottish Water by a commercial company. In an earlier decision, the Commissioner had found that the requests made by the company were vexatious. In coming to this decision he took into account the volume of requests, and the harassing effect that they had on Scottish Water.

In the most recent case, however, the Commissioner noted that the company had significantly reduced the number of requests it made since his first decision, and that the request under consideration was more focussed than before. As a result, the Commissioner found that the latest request was not vexatious. The latest request was not a continuation of the previous requests, and Scottish Water was not entitled to refuse to deal with the request on the basis of what had happened in the past.

The Commissioner will be issuing updated guidance on vexatious requests in the New Year.

CCTV Requests

On a different matter, another recent decision involved a request for CCTV footage held by the Scottish Prison Service. "Information" is defined in the Act as "information recorded in any form", clearly covering information stored in the form of CCTV footage. The case acts as a useful reminder to authorities of the importance of taking steps to secure information as soon as possible after a request has been received, given that in this case the footage would, under normal circumstances, have been automatically destroyed by the SPS before the 20 working days for responding to the request had passed.

 
Practice Assessment Update
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During September the Commissioner published his assessment reports of the FOI practices of both Highland and East Dunbartonshire Councils.

Both these local authorities had policies and procedures to ensure that the handling of FOI requests was devolved (i.e. undertaken with relevant individual departments, rather than being processed through one individual).

The assessors found that within Highland Council this devolved structure was working well. The Council, which handled 928 requests in 2009/10, had a well- established network of co-ordinators responsible for administering requests within their particular service area. Within Highland Council the FOI officer's role was to offer advice and assistance to staff, and co-ordinate any requests which spanned a number of business areas. Highland Council also undertook regular performance monitoring which flagged up issues at an early stage.

By contrast, the assessors found inconsistencies in the manner in which East Dunbartonshire Council handled requests. Although its policies and procedures indicated a devolved structure, it was heavily reliant upon the FOI Officer responding to each request. This was clearly unsustainable, with 619 requests received in 2009/10 - and this was reflected in repeated failures to adhere to the 20-working day response time. East Dunbartonshire Council also lacked a formal network of FOI staff and was largely reliant upon the FOI Officer's knowledge and experience of the organisation to locate the information.

East Dunbartonshire Council had undertaken a self-analysis prior to the Commissioner's assessment, which recognised that its procedures required development. Its primary objective going forward is to adopt a more corporate approach to FOI and it is currently putting in place a network of FOI contacts to support a devolved structure.

By contrasting these authorities we can highlight the importance of having a structure in place for handling requests which is appropriate for the nature and number of requests received, and the mechanisms and resources to support that structure.

 
News in brief
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Commissioner launches FOI Handbook

Kevin Dunion's 515-page FOI Handbook, Freedom of Information in Scotland in Practice, was published on 31 October 2011 by Dundee University Press. The book provides an in-depth guide to FOI in Scotland, including detailed commentary on the provisions of both the FOI Act and the Environmental Information (Scotland) Regulations, and examination of the key issues to consider when interpreting the most challenging aspects of both laws.

Copies of the book can be obtained from Dundee University Press, Amazon and bookshops. The book is also available at a reduced rate as part of the Holyrood FOI Conference package. See www.holyrood.com/foi for more details.


Website developments

There have been a number of new developments on our website in recent weeks. These include:

  • New home page
    The home page has been re-launched to provide site users with better sign posting to the range of content available across the site. A new picture banner points visitors to new content and events. The new homepage can be viewed at www.itspublicknowledge.info.
  • Assessing best practice
    We've added a new section to our website on "Assessing best practice". The new section includes details of our enforcement strategy, downloadable copies of all the assessment reports published to date, and self-help assessment tools to enable authorities to evaluate their own FOI practices. Access it .
  • FOI for elected representatives
    New web pages for elected representatives were launched on 1 November. The new resources contain information, guidance and advice on FOI for MSPs and councillors, and are available through either www.itspublicknowledge.info/msp or www.itspublicknowledge.info/councillor.

    The launch of these new resources was supported by an event for MSPs and their staff in the Scottish Parliament. Jackie Baillie MSP (who also sponsored the event), Sandy Longmuir of the Scottish Rural Schools Network and Michelle Stewart of the C-Diff Justice Group talked about their own FOI experiences. Sandy and Michelle's stories are also featured on the new web pages.

Charging for environmental information

We have recently revised our briefing on Fees and Excessive Cost of Compliance with a particular focus on updating the guidance on charging under the EIRs. The guidance on when charging can be applied under the EIRs has changed. The briefing also includes advice about assessing whether charges are reasonable, and the EIR duty for an authority to publish its schedule of charges.

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Festival of Politics

In August the Commissioner held an event as part of the Scottish Parliament's annual Festival of Politics. The event - Freedom of Information?There's a website for that! - explored the impact that the internet and new media are having on FOI and open government in Scotland.

The session heard from Edinburgh resident Michael Traill, a regular user of FOI who also blogs about his experiences, and Ben Plouviez of the Scottish Government, who spoke about the government's own approach to open data. Speaker sessions were followed by a lively audience discussion.

Full audio from the event is available for those who missed it here:

Festival of Politics 2011 - Audio report


 Voluntary Sector and FOI

Our programme of promoting FOI rights and awareness to the voluntary sector continues, with FOI workshops held recently in Inverness, Glasgow and Cumbernauld. These included workshops delivered as part of the Scottish Council for Voluntary Organisation's Annual General Meeting, and during the 2011 national conference for Scotland's Third Sector Interface.  Feedback from the workshops has been extremely positive with delegates keen to learn more about their FOI rights, and to hear about how others from the sector have put them into practice.

Activity planned for the remainder of the financial year includes an FOI/Data Protection workshop in partnership with staff from the (UK) Information Commissioner's Office at the SCVO's 2012 Gathering, as well as Regional Roadshows in Edinburgh and Aberdeen.


 Facebook page launches

The Scottish Information Commissioner has recently launched a Facebook page at www.facebook.com/scottishinformationcommissioner. The page provides updates on the work of the organisation - events, news, new publications - as well as links to external content that we think will be of interest to the FOI community. Use the link above to log onto the page, and then click on the "like" button to have our updates delivered directly into your own Facebook news feed.

We've also published some information for page users at http://www.itspublicknowledge.info/home/News/Facebook.aspx 
 


 Social media requests

There has also been discussion recently about whether FOI requests received through social media, in particular Facebook and twitter, are "valid". The Commissioner's view is that, provided the request satisfies the requirements of section 8 of the FOI Act - the request needs to be made in writing, it must include a name and contact details, and describe the information sought.

Where the request hasn't met these requirements, authorities will, of course, be expected to assist the requester to make a valid request under the FOI duty to advise and assist requesters.

The Frequently Asked Questions section of our website provides more advice on requests for information made through social media at www.itspublicknowledge.info/FAQ.


EIRs and the two-stage public interest test

A ruling in the European Court of Justice (ECJ) has provided further guidance on the interpretation of the public interest test under the EIRs. The ruling related to a case where an authority (OFCOM) had applied two of the exceptions under the UK EIRs to the same information.

The ECJ's ruling, issued in July, found that, when more than one exception applies to the same information, a two stage public interest test should be considered.

In the first stage of this test, authorities should consider the public interest arguments in relation to each exception separately. In the second stage, authorities can then go on to cumulatively weigh all the grounds for refusing to disclose, against all of the public interests served by disclosure.

The full text of the ECJ's ruling is available at: www.bailii.org/eu/cases/EUECJ/2011/C7110.html

The Commissioner's briefings are currently being updated to reflect the ruling. 


Centre for Freedom of Information in Scotland

The Centre for Freedom of Information in Scotland, the partnership between the Commissioner and the University of Dundee's School of Law, had a very successful autumn seminar series, with one event focussing on a range of current developments in FOI and a second comparing the different appeal routes available under both the Scottish and UK FOI laws. Presentations and materials from all previous events is available on the Centre's website at:

www.centrefoi.org.uk/seminars_archive.php

The next Centre event is planned for 21 February 2012, and will focus on current FOI developments, including the FOI Amendment Bill consultation which the Scottish Government intends to launch shortly. Register for further details at the website above.

 
FOI News
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UK 

  • The UK FOI Act has been extended to cover the Association of Chief Police Officers in England and Wales, the Universities and Colleges Admissions Service and the Financial Ombudsman Service Ltd. The Ministry of Justice has also announced that it plans to submit proposals for the post-legislative scrutiny of FOI to the Commons Justice Committee in December. Read more at www.justice.gov.uk/news/features/feature011111a.htm.
  • The (UK) Information Commissioner's Office (ICO) has launched a blog covering FOI and DP related issues. The first post, from Deputy Commissioner David Smith, looks at the future of data protection in the EU. Read it here: www.ico.gov.uk/news/blog.aspx
  • The ICO is also undertaking a consultation on revising its model publication scheme, including consideration of whether additional classes of information should be added. Alongside this, the ICO has launched 'Tell Me More', a consumer campaign aimed at asking the public what information should be included in public authority publication schemes.
  • The website WhatDoTheyKnow.com has begun a wiki site to collate the suggested amendments to FOI laws in the UK made by site users. The wiki is available here.


Around the world
  • The Irish Commissioner for Environmental Information has ruled that the Anglo Irish Bank is subject to the Irish equivalent of the EIRs. The bank was nationalised in January 2009.
  • Brazil is the latest country to introduce an FOI law. Scottish Information Commissioner Kevin Dunion has been invited to the country in early December to share Scotland's experience of implementing FOI legislation.

  • An EU Parliamentary Committee has proposed the introduction of improvements in the EU's access regime.  Read the www.freedominfo.org overview of the proposed changes here.

  • A survey of 105 countries by the US-based Associated Press (AP) has found over half of those countries with FOI laws in place failed to follow them when handling an FOI request made by the AP. The request related to the number of arrests and convictions for terrorism in the ten years following 9/11. Of the 105 governments which received the request only 14 answered within the required timescale, although a further 38 countries eventually answered most questions. The survey found that, in general, newer democracies proved more responsive than more established ones.  Find out more.

 
Contact us
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My staff are on hand to provide information, support and advice on any issue relating to freedom of information. We would also be pleased to receive any feedback you may have on our website, or on Inform itself. Contact us at:

Scottish Information Commissioner, Kinburn Castle, Doubledykes Road, St Andrews, KY16 9DS

Telephone: 01334 464610

Website: www.itspublicknowledge.info

Email: enquiries@itspublicknowledge.info

Fax: 01334 464611

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