News and Commentary from the Scottish Information Commissioner

News and commentary from the Scottish Information Commissioner

February 2012

 
In my final issue as Scottish Information Commissioner I reflect on my time in office, publish my response to the Freedom of Information (Amendment) (Scotland) Bill consultation and wish the new Commissioner every success in the future.
Head and shoulder Image of Commissioner

This my final commentary for Inform, as today I demit office as Scottish Information Commissioner.  It has been a richly rewarding nine years, particularly having the privilege of interpreting many of the provisions of the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information (Scotland) Regulations 2004 (never forget the EIRs!) for the first time, coming to a decision on so many issues which affect public life in Scotland.

Indeed my last Decision 036/2012 Mr Rab Wilson and Ayrshire and Arran NHS Board, concerning the disclosure of reports on critical incident reviews and significant adverse events, is a case in point. The circumstances of the case are detailed below, and have received a degree of media coverage.  However at its core the decision demonstrates that without FOI this information may never have seen the light of day again, far less being disclosed.  Only the persistence of the applicant, a strong appellate process determined to get at the facts, and ultimately the preparedness of the authority to accept that it had got things wrong in this instance, has led to important information being put into the public domain.

In my special report "Informing the Future - the State of Freedom of Information in Scotland", laid before Parliament in January, there were several indicators of the strength of FOI.  Public awareness of FOI is high - now standing at 80%. People are increasingly using their rights of appeal - the number of applications made to me in 2011 was just short of the record 528 received in the first year of the law being in effect.  Authorities are striving to meet their obligations and accept my decisions.  The time taken to investigate appeals has markedly reduced so that on average cases are now closed within four months. All of this has led to Scotland having a deservedly high international reputation for effective implementation.

However, as my report also shows, improvements are still needed - too many cases involve authorities failing to respond to requests in time, or at all.  My strictures to get it right first time have fallen on deaf ears in some places, with the grounds for refusal shifting when appeals are made to me and often in the course of investigation.  And as the Wilson case above indicates, authorities can still make a meal of finding all of the information within the scope of the request even where they acknowledge that it should be held by them.

I indicated some of the improvements that I would like to see e.g

  • Designation of bodies such as local authority trust to come within FOISA
  • Empowering the Commissioner to take evidence under oath
  • Permitting the Commissioner discretion over whether to accept late submissions

However, for the moment, the Scottish Government has indicated only limited changes will be made as a result of an Amendment Bill on which consultation is currently taking place, the provisions of which I broadly welcome (see below). It is salutary to look at some of the submissions and evidence being given to the House of Commons Justice Committee's post legislative scrutiny of FOIA.  It need hardly be said that I entirely disagree with some of the proposals such as a flat rate fee for requests, which I think is not only regressive and intended to deter use of the FOI Act, but is unworkable with the regimes we have north as well as south of the border.  I was pleased therefore when Brian Adam MSP, Minister for Parliamentary Business confirmed at the Holyrood Conference in December2011 that the Scottish Government had no intention of amending the charging regime here.

All it remains for me to do now, as I clear my desk, is to wish the new Commissioner, Rosemary Agnew, well. She is inheriting wonderful staff with a wealth of experience and the exciting prospect of knowing that there are still many FOI challenges to face.

I shall watch with interest, from not too far away!

 Kevin Dunion's Signature

Kevin Dunion
Scottish Information Commissioner

 
Freedom of Information (Amendment)(Scotland) Bill
Cover of the printed version of the Act

On 16 December 2011 the Scottish Government launched its consultation on proposals for a Freedom of Information (Amendment)(Scotland) Bill.  The consultation paper sets out several proposed technical changes i.e. definition of historical records which will affect the lifespan of certain exemptions, making communications with Her Majesty etc. an absolute exemption, and extending the timescale for prosecution of offences under section 65 of FOISA.  The consultation, which can be viewed on the Government's website, closes on 8 March 2012.

In my submission to the Bill consultation, I have welcomed the majority of the proposals, but expressed concerns about the effect of a new and potentially wide-ranging absolute exemption concerning communications with Her Majesty etc. ? in my view an undesirable change.  Furthermore making such information absolutely exempt would create discontinuity in rights to environmental and non-environmental information.  The EIRs contain no specific exception for Royal communications, and the public interest in release would always be considered under the EIRs, even if FOISA is amended.

While I am in favour of the Government's proposals regarding reducing the lifespan of certain exemptions, I have also called on them to consider equivalent amendments to the EIRs to prevent further anomalies in rights between the two access to information regimes.

I also particularly welcome the Government's proposal to extend the timescales for bringing prosecutions under section 65 of FOISA, which concerns the offence of altering or destroying records with the intent to prevent disclosure.  I have, however, set out an alternative approach to the proposed revision of timescales for prosecution - that it should be extended to six months after an offence comes to light, rather than the Government's proposal of 12 months after the commission of the offence.  In my view, even with the extension of timescale the Government is proposing, there are still circumstances under which prosecution could not proceed.

View my response to the Scottish Government's consultation here.

 
New Commissioner appointed
Photo of Rosemary Agnew

On 1 February 2012, the Scottish Parliament nominated Rosemary Agnew for appointment by HM the Queen as the next Scottish Information Commissioner.  Mrs Agnew is currently Chief Executive of the Scottish Legal Complaints Commission. 

Prior to that she worked for the Local Government Ombudsman for eight years. Throughout her career she has been committed to the principles of accountability and transparency and has worked with a range of public and private sector organisations to deliver service and procedural improvements. 

Margaret Keyse, the Commissioner's Head of Enforcement, has been appointed Acting Commissioner from 24 February 2012 until Mrs Agnew takes up office on 1 May 2012.

 
At a glance - February 2011 to January 2012
Caseload Statistics - February 2011 to January 2012
 
Key decisions and practice assessments update
Your Right to Know Booklet cover

Key decisions

In his last Decision 036/2012 (Mr Rab Wilson and Ayrshire and Arran NHS Board), the Commissioner criticised the Board for the most serious failings in records management and information recovery he has seen in his nine years in office.    

Rab Wilson asked Ayrshire and Arran NHS Board (NHS Ayrshire and Arran) for copies of all Critical Incident Reviews (CIRs) and Significant Adverse Event Reports (SAERs) carried out by NHS Ayrshire and Arran since January 2005, and for the action plans derived from the CIRs and SAERs.

  • NHS Ayrshire and Arran refused to disclose the CIRs and SAERs to Mr Wilson, on the basis that they were, in their entirety, exempt from disclosure.  NHS Ayrshire and Arran advised Mr Wilson that it did not hold any CIR action plans (with the exception of one plan which he had already been given).
  • NHS Ayrshire and Arran also refused to provide copies of the SAER action plans, as they were to be published within 12 weeks, and NHS Ayrshire and Arran considered that they were exempt from disclosure.   Following a review, Mr Wilson remained dissatisfied and applied to the Commissioner for a decision.
  • Following an investigation, the Commissioner ordered NHS Ayrshire and Arran to provide anonymised versions of the CIRs and SAERs to Mr Wilson.  Although some of the contents of the reports were exempt from disclosure (for example because they contained sensitive personal data), the Commissioner concluded that it was possible to redact the reports in such a way that patients, etc. could not be identified. Failure to provide redacted copies of the reports was a breach of section 1(1) of FOISA.
  • In spite of insisting that only one CIR action plan was held, during the investigation, NHS Ayrshire and Arran located 56 CIR action plans falling within the scope of Mr Wilson's request; as a consequence, the Commissioner found that NHS Ayrshire and Arran had been wrong to advise Mr Wilson that it did not hold any such plans.
  • He also found that the exemption in section 27(1) (Information intended for future publication) did not apply to the SAER (or CIR) action plans; while "learning summaries" of the plans were published by NHS Ayrshire and Arran during the investigation, the Commissioner was not satisfied that it had intended to publish the plans when Mr Wilson made his information request.
  • In any event, the learning summaries which had been published did not contain the same information as the action plans.  The Commissioner therefore ordered NHS Ayrshire and Arran to provide Mr Wilson with anonymised versions of the CIR and SAER action plans.

Practice assessments update

Since the last edition of Inform in December 2011, the Commissioner has carried out his first desktop practice assessments. These are undertaken where the Commissioner feels that an effective assessment can be carried out without visiting the authority. The decision whether to opt for a desktop assessment involves weighing up a number of factors. These factors may include the volume of requests an authority receives, how well it has complied with timescales, or the findings of an initial sample of requests responded to by the authority.  The relevant factors will vary according to the authority and its circumstances, so the decision is made on a case by case basis.

In recent months the first desktop assessments were undertaken for David MacBrayne Limited and Caledonian Maritime Assets Limited, and the Commissioner's Assessment Team has issued reports on these assessments and on their site assessment visits to Scottish Natural Heritage (SNH) and VisitScotland.

Many areas of good practice were identified by the assessors in each of these four assessments and it is interesting to note that each authority assessed has a "centralised structure" for dealing with FOI, i.e. a central FOI function/team to administer requests.  Appropriate organisational structures will vary according to the name of the authority, but in all these cases, assessors agreed that centralised structures were appropriate.

The assessors also noted a number of common areas where practice fell short.  These included:

  • training (especially in relation to the EIRs)
  • keeping FOI policies and procedures up to date
  • reviewing standard template letters/text to ensure that they include details about requesters' rights
  • improving monitoring and reporting arrangements to aid compliance with statutory timescales.

The Commissioner has published the next six months' programme of assessments, to October 2012, on his website at .

 
News in brief
Pile of Newspapers

Commissioner's final address 

The Commissioner gave his final address, as Commissioner, to the Centre for Freedom of Information at Dundee Law School on Tuesday 21 February 2012. Reflecting on the content of his Special Report, he shared his thoughts with the audience on where FOI has come from and what significant challenges remains. A panel of speakers responded with their own thoughts.

James McGachie from DLA Piper LLP talked about the challenges which timescales can sometimes create, and what is meant by responding "promptly", while Audit Scotland's Russell Frith commented on the importance of FOI designation. BBC Scotland's Principal Solicitor Ros McInnes spoke of the principles behind FOI (society prefers knowledge over ignorance) and agreed the EIRs are under-used. Finally, Karen Williams from Grampian Police reiterated the need for bodies to be designated to ensure rights follow the public pound.  

Revised briefings now available

The Commissioner updated all his exemption briefings in November 2011, to take account of the most recent experience and new decisions since the last review.  All of these are now available on the website.  The last full review of briefings was in February 2009.  The Section 14 briefing will be updated in the spring.  View the new briefings at Briefings and guidance.

Publication schemes update

The next round of publication scheme approvals is underway ? this year the focus is on Scottish Ministers, the Scottish Parliament and non-ministerial office holders.  The Commissioner's is encouraging these authorities to adopt the Model Publication Scheme 2012, after a pilot survey found that 97% of those who adopted the 2011 Model would recommend it to other authorities.  The Commissioner's staff met with the Government and its agencies on 2 February to discuss their options and the resources available to support them.  This includes substantially revised and extended web pages for authorities looking to revise or update their publication scheme.  Work is underway with the Government and its agencies to develop a template which they can use to develop a guide to the information they publish, if they wish.  The new web resources are available on the Commissioner's website at http://www.itspublicknowledge.info/MPS2012/

Engaging with civil society

The Scottish Information Commissioner and his team continue to engage with civil society organisations through a number of outreach events, to help raise awareness of FOI rights amongst the third sector, campaigners and advocacy groups.

  • The Commissioner is jointly hosting a workshop at the SCVO Gathering on 1 March 2012, with the UK Information Commissioner's Office.  This event will cover appropriate management of personal information by civil society organisations, and advice on how FOI rights can be used by the third sector to support their activities. Find out more about the workshop here.
  • And on 7 March 2012, campaign groups and community activists are invited to a free workshop in Edinburgh, in partnership with Edinburgh Voluntary Organisations' Council (EVOC).  The workshop will run three times throughout the day.  Attendees will be provided with information on their FOI rights, and how they can be used to support the activities of the voluntary sector.  For more information, visit: www.evoc.org.uk/course/making-freedom-of-information-work-for-you/

Campaign for Freedom of Information Events

The Director of the Campaign for Freedom of Information, Maurice Frankel, will visit Scotland in March to deliver two short training courses on the Scottish Information Commissioner's decisions ? what do they mean in practice?   The course is aimed at those with a good working knowledge of the legislation, will cover significant decisions since February 2011.  The first event on 20 March, is in Glasgow and the second, on 21 March, will be in Aberdeen.  Both events will run from 1.30pm to 5pm.  To find out more visit http://www.cfoi.org.uk/scotland.html and to book a space, call Derek Manson-Smith on 0141 332 2341, or email him on dms@itcuk.demon.co.uk

Other training events

Act! Now is running the following events in Scotland in 2012:

  • 29 March - Freedom of Information (Scotland): From A-Z, Edinburgh
  • 24 May - FOI (Scotland): Latest Decisions and the OSIC Decisions, Edinburgh
  • 29 May - Environmental Information Regulations Update, Edinburgh
  • 27 November - Freedom of Information (Scotland): From A-Z, Edinburgh

View the programme online at www.actnow.org.uk/courses/Freedom_of_Information

Please note that the Commissioner's office does not endorse any of the training events provided by external third party organisations.

 
FOI News
Image of globe

UK & Ireland

  • The UK Supreme Court has rejected an appeal against the BBC's refusal to disclose a report into its coverage of the Israeli-Palestinian conflict. Five justices unanimously dismissed the appeal by solicitor Steven Sugar. The Supreme Court ruled that once it was established the information sought was held by the BBC to any significant degree for the purposes of journalism it was exempt, even if the information was also held for other purposes. See: www.bbc.co.uk/news/world-17038937
  • Westminster MPs have begun to take evidence as part of the post-legislative scrutiny of the Freedom of Information Act 2000.  The first evidence session, featuring witnesses from organisations including the Campaign for Freedom of Information, WhatDoTheyKnow, and the UCL Constitution Unit, is available to view here:  www.parliamentlive.tv/Main/Player.aspx?meetingId=10302
  • The Cabinet Office has published details of the UK Goverment's Information Principles. These are available at: www.cabinetoffice.gov.uk/resource-library/uk-government-ict-strategy-resources
  • The UCL's Constitution Unit is undertaking research assessing the impact that FOI laws have had on academic research. Academics or students who have made use of FOI law as part of their research are invited to take part in the Constitution Unit's online survey.  Visit: www.ucl.ac.uk/constitution-unit/research/foi/foi-universities/copy_of_he-officers-survey
  • The Attorney-General has exercised veto under the Freedom of Information Act 2000, in relation to a decision of the Information Commissioner that minutes of a meeting of the cabinet sub-committee on devolution from 1997/8 should be partially disclosed. The same minutes were subject to an earlier veto in 2009 by the then Secretary of State for Justice, Jack Straw. The statement of reasons published in relation to the veto are available at: www.scribd.com/doc/81051580/DSWR-Statement-of-Reasons-FINAL.
  • The Cabinet Office has published the responses to its recent consultation on Open Data initiatives, which is intended to inform the Westminster Government's strategy on proactive publication and open data. Nearly 500 responses were received, and can be viewed at: www.cabinetoffice.gov.uk/resource-library/making-open-data-real-consultation-responses.

Around the world

 
Contact us
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The Commissioner's 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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