News and Commentary from the Scottish Information Commissioner

Inform - News & commentary from the Scottish Information Commissioner

Jan/Feb 2008

 

Welcome to the first Inform of 2008. 2007 was a busy year for my Office, with over 230 formal decisions issued. Of these, however, only around 5% related to the Environmental Information (Scotland) Regulations 2004 (the EIRs). In this issue I consider the relationship between the Freedom of Information (Scotland) Act 2002 and the EIRs in more detail while I also highlight a significant recent decision which provides guidance for authorities on managing this relationship.

 
Commissioner's Commentary
Kevin Dunion

My annual research shows that public awareness of Scotland's freedom of information (FOI) law continues to be strong and, as regular readers will be aware, this high level of awareness has led to a large number of applications to me, with approximately 1,500 applications received since 1 January 2005. My recent research has shown, however, that there is a substantially lower level of awareness of the EIRs, the FOI Act's sister legislation, which separately governs access to the environmental information held by public authorities and other bodies. While 73% of the respondents were aware of the FOI Act, only 19% had an awareness of the EIRs. A question that might legitimately be asked is whether the public needs to be aware of their rights under the EIRs? Provided a member of the public is aware that they have a right to access information generally, should it not then be the responsibility of the receiving body to process that request in accordance with the appropriate legislation? Does raising the awareness of both sets of rights serve only to "muddy the water" as far as the requester is concerned?

There are, however, concerns with this approach. First and foremost, the rights to environmental information provided by the EIRs are wider than those under the FOI Act, with the EIRs potentially covering private sector bodies contracted by public authorities to provide public services or carry out public functions relating to the environment. While the full scope of the EIRs will continue to be clarified through my future decisions, it is nevertheless important that the public are aware of the rights they may have to request environmental information from those bodies.

In addition, there is also a danger that low levels of awareness of the EIRs may also exist within public authorities, with some requests for environmental information being mistakenly or inappropriately processed under FOI. Such an approach may potentially result in a substantially different outcome for the requester, given the different tests and considerations that each piece of legislation requires.

The EIRs have their basis in European legislation, and have existed in one form or another since 1992. As well as the wider scope and the different tests that are in place, the EIRs differ from FOI in other ways. Requests under the EIRs can, for example, be made verbally as well as in writing, and there is no upper fee limit for authorities when providing a response.

Graph showing public awareness of FOI at 73%

Graph showing 1371 FOI applications

The relationship between EIRs and the FOI Act is complex, and continues to be explored, tested and defined through my investigations. As noted above, the proportion of applications to me under the EIRs has been comparatively small, with the result that, at the time of writing, I have issued only 18 decisions which consider the EIRs (compared to 558 considering the FOI Act). Nevertheless, among these 18 decisions there are several which help to crystallise how requests for environmental information should be processed. Overleaf, I discuss perhaps the most important EIR decision issued so far, which sets out in detail the approach that authorities should take when dealing with requests for environmental information. The procedural learning points emerging from this decision have been developed into a flowchart for authorities, which will shortly be available from my website at www.itspublicknowledge.info.

Further guidance on the handling of requests for environmental information will continue to emerge from my Office during 2008. We are currently updating our briefings on FOI exemptions to incorporate relevant guidance on the EIR exceptions, while further key decisions are expected soon. The outcomes of these decisions will further explore and resolve the apparent tensions that exist between the FOI and EIR regimes.


Kevin Dunion's Signature

Kevin Dunion
Scottish Information Commissioner

 
Key decisions issued
Image of filing Cabinet with documents flying out of it

Decision 218/2007
Professor A D Hawkins and Transport Scotland

Professor Hawkins requested information relating to the development of the Aberdeen Western Peripheral Route from Transport Scotland. While some information was provided, other documents were withheld under the FOI Act, on the grounds that release would harm the effective conduct of public affairs. The FOI exemptions relating to ministerial communications and the development of government policy were also applied by Transport Scotland during the course of my investigation.

Transport Scotland argued that, as it considered the majority of the information was "non-environmental" and there would be no detriment to Professor Hawkins, it was appropriate to process the request under the FOI Act alone. Transport Scotland added that this decision was supported by the fact that Professor Hawkins mentioned the FOI Act in his request.

On consideration of the information withheld, however, I determined that the definition of what constitutes environmental information had been viewed too narrowly. I found the requested information was environmental, and that there was therefore a requirement to process it in accordance with the EIRs. I also found that the fact that the requester mentioned the FOI Act had no bearing on how the case should be dealt with. I went on to set out my view on how requests for environmental information should be processed by authorities.

In summary, I concluded that (written) requests for environmental information must be processed under both the EIRs and FOI. While consideration under the EIRs will be the appropriate route for environmental information, the FOI Act nevertheless requires that all written requests for information (environmental or otherwise) must first be processed in accordance with FOI, and there is no automatic "up-front" exemption for environmental information. In most circumstances, however, the authority processing the request will simply have to apply the exemption under section 39(2) of the FOI Act, which explicitly exempts information which falls within the scope of the EIRs. The authority should then continue to process the request in accordance with the EIRs, with the release of the information being dependent on the consideration of the EIR exceptions.

In this case, as the Ministers had not applied the exemption under section 39(2), I considered the case in terms of both the EIR exception and the other FOI exemptions cited. While I found that relevant exemptions/exceptions did indeed apply, I went on to conclude that, in the circumstances of this case, it was nevertheless in the public interest for the information to be disclosed. I therefore required the Scottish Ministers to release the withheld information.


Decision 209/2007
Mr Adam Ingram MSP and the Scottish Parliamentary Corporate Body

This case involved a request for information on the decision by the Presiding Officer not to proceed with the Civil Appeals (Scotland) Bill. The scope of the request covered the legal advice received by the Presiding Officer, and took in a request for the name of the person who supplied that legal advice.

The SPCB had refused the request on the grounds that the requested information constituted confidential legal advice, and that its disclosure would also substantially inhibit the free and frank provision of advice. On investigation I found that the SPCB had correctly withheld the actual content of legal advice on the grounds that it fell within the scope of the FOI Act's confidentiality exemption.

I did, however, require the SPCB to provide Mr Ingram with the identity of the person who had provided the advice. I found that, unlike the content of the legal advice, this information was not legally privileged, and its disclosure would also not breach the data protection legislation.


Decision 202/2007
Sunwick Farms Ltd and the Scottish Ministers

The Sunwick Farms decision highlights the problems and delays that arise when a public authority fails to appropriately meet the 20 working day timescale for responding to requests. In this case the Ministers took almost 90 working days to respond to Sunwick Farms' initial request, and over four months to respond to the subsequent request for review. In both instances, the Ministers only provided a response following the intervention of my Office.

As a result, substantial delays arose in relation to this case and Sunwick Farms were forced to make three separate applications to my Office. Such circumstances are clearly not acceptable in terms of the FOI Act.


The full text of all decisions issued under Scotland's FOI legislation can be viewed on my website at:  www.itspublicknowledge.info/decisions 

Unless otherwise stated, the decisions listed may be appealed by either party to the Court of Session on a point of law.  Any such appeal must be made within 42 days of the date of intimation on the decision.

 
At a glance - November and December 2007
 New applications received:

 62

 Enquiries responded to:  210
 Cases closed:  86
 Decisions issued:  29
 
News in brief
Pile of Newspapers
2007 Annual Report

 

March will see the launch of my 2007 Annual Report, in which I will not only provide a comprehensive update on my activity during 2007, but will also provide a retrospective overview of the progress of FOI in Scotland since the implementation of the Act in 2005. 

 

The report also includes a comprehensive compendium of data giving an up-to-date picture of FOI in Scotland today, which I hope users will keep for reference.  The report will be laid before Parliament in early March.

 


International Conference of Information Commissioners

 

The Scottish experience of FOI was a key feature of the recent International Conference of Information Commissioners. Delegates were particularly keen to know about the consequence of including Parliament in the Scottish FOI Act, as many countries exclude their legislatures. At the Conference the speaker of the New Zealand Parliament said she believed that excluding their Parliament from FOI  was an ?oversight? which should be remedied and subsequently the Government has announced that the longstanding New Zealand FOI Act will be reviewed.

 

The New Zealand Herald carried an extensive feature article about my role and FOI in Scotland.

 


Exemptions Briefings

 

This year will see the updating of my briefings on the FOI exemptions, which will also incorporate guidance on the EIR exceptions.  The new briefings will include more practical detail and guidance, along with references to particular decisions where relevant precedents have been set.  I plan to refresh all existing briefings in 2008, while also introducing new guidance on related topics.  The updated briefings will be made available on the existing briefings site at www.itspublicknowledge.info/briefings

 


MSP Event

On 16 January 2008, I addressed an FOI event at the Scottish Parliament which was attended by 25 guests, primarily consisting of MSPs and their staff. The seminar, which was organised jointly between my Office and the Scottish Parliament's Corporate Body and sponsored by Tricia Marwick MSP, provided MSPs with more information on their FOI rights, setting out how those rights might best be used to advise and support constituents. Claire Turnbull, FOI Specialist at the Scottish Parliament, provided the group with an overview of FOI request handling within the parliament.

The event was supported by exhibition by my staff which ran from Tuesday 15 to Thursday 17 January. Over the three days, between 50 to 60 MSPs and staff stopped by the stand to pick up more information and discuss FOI-related concerns and queries.

 

MSP Seminar Photo 1

Kevin Dunion, Tricia Marwick MSP,
and Claire Turnbull
take questions
from MSPs and staff

 

 
Contact us
Photograph of Commissioner's staff
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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