News and Commentary from the Scottish Information Commissioner

News & Commentary from the Scottish Information Commissioner
January / February 2009

 

In this month's Inform I set out my response to the Scottish Government's discussion paper on extending the FOI Act; summarise my evidence to the Scottish Parliamentary committee set up to review organisations supported by the Scottish Parliamentary Corporate Body (SPCB); share the most recent findings from our awareness tracking studies, and news of international visitors and the launch of the Centre for FOI.

Kevin Dunion

Commissioner's Commentary

Over the past few months I have welcomed the opportunity to participate in some thought-provoking debates on the extension of the FOI Act ? the subject of a discussion paper published by the Scottish Government in November, this issue was discussed in my last 'Inform', where I set out some of the issues which make this such a timely and critical debate.

In December 2008, I held a discussion on designation with organisations including the Scottish Council for Voluntary Organisations, Edinburgh Leisure, the Campaign for FOI in Scotland, Glasgow Housing Association and Audit Scotland.  This was the first in a series of 'reference group' meetings planned for my second term of office to inform my approach to strategic issues.  (A report will be available on my website shortly).  Extension of the Act was also a key theme of the sixth annual Holyrood FOI conference on 10 December.

These deliberations informed my response to the Government's paper, which I published on my website in January, and which sets out my position on the extension of the Act to housing associations, local authority trusts and contractors delivering public services.


Key points from my submission

  • It was the intent of Parliament that section 5 of the FOI Act (which gives Ministers the power to extend the Act to bodies where they appear to be exercising public functions) could and would be actively used.
  • What constitutes a 'public function' for the purposes of the Act is not legally defined, but is a matter of judgement for Ministers to make.
  • Loss or inequality of rights to information is a key factor when considering whether designation is appropriate.
  • Public opinion in Scotland favours extension of the Act[1].
  • All services which are integral to the delivery of a public service should be considered for designation e.g. hospital cleaning.
  • Existing regulators and contracting public authorities may not hold the information that the public wants to see.
  • The burden of coverage by the Act should not be overstated ? little detailed evidence currently exists.
  • Designation should be an ongoing process, not a one-off event.

In conclusion, I recommend the Act should be extended to cover:

  • contractors carrying out public functions, particularly contracts of high value and duration e.g. PPP/PFI contractors;
  • contractors who build, maintain and operate private prisons;
  • all registered social landlords ? with formal consultation giving individual RSLs the opportunity to argue against being included;
  • local authority trusts ? and particularly those delivering leisure and cultural services.

[1] Scottish Information Commissioner - Public Awareness Survey (5th Wave) - November 2008

Download my full submission to the Scottish Government here
 
Review of SPCB supported bodies
Scottish Parliament

Following the Scottish Government's announcement in November of changes to Scotland's scrutiny bodies, I welcome the establishment of the Parliamentary Committee to review SPCB supported bodies.  Clearly, it is right that commissioners and ombudsmen, like any public body, should be transparent and accountable.

I am pleased that, in its evidence, the SPCB has acknowledged that the specific characteristics of the Scottish Information Commissioner ? being quasi judicial, with the power to enforce decisions ? means it would be more appropriate to leave the functions of the post relatively untouched.

I too favour the retention of an independent Commissioner, over a Commission comprising several officeholders.  Where such officeholders are subject to the Commissioner's jurisdiction, the public's perception of the Commissioner's independence may suffer.  Current international practice is to have a single officeholder, which provides clarity of leadership and accountability.

The enquiry could resolve issues regarding the legal status of the Commissioner.  Currently, the officeholder has no legal identity separate from the individual themselves, raising concerns best illustrated by example ? the Commissioner's staff are employed by the person who is the officeholder, rather than the office itself ? an issue when s/he demits office.  I have invited the Committee to consider whether a 'body corporate', with Commissioner as sole member, would solve this anomaly.

In written evidence to the Committee (available on my website) I set out the substantial measures in place to ensure the highest standards of governance and accountability in my Office, and I support the suggestion by the SPCB that I discuss my three year strategic plan with them, and present my annual report to Parliament.  I am in favour of working collegiately with others, including engaging in 'shared services' where appropriate.  It is essential, however, to ensure that proposals for sharing services are consistent with the duties and obligations of the officeholder.  My role naturally demands very high levels of information security, and my systems must not be accessible, or vulnerable to access, by others.

In summary, while the arrangements in place for the Office of Scottish Information Commissioner are fundamentally sound, I am committed to working with the Committee to explore any ways in which they can be further refined.

The Scottish Information Commissioner gave evidence on 3 February.  Visit the Committee's website for a transcript of this and other evidence.

 
At a glance - November and December 2008
New applications received:

52

Cases closed:

45

Enquiries responded to:

210

Decisions issued:

27

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

Decision 146/2008 - Joyce and Alan Beasley and the Chief Constable of Strathclyde Police

Mr and Mrs Beasley sought a range of information concerning the investigation of a road accident, in which their son died, and the investigation of a related complaint they had made.  My decision here is in line with previous decisions I have issued in cases of this type - I found that information relating to the investigation of the accident was exempt because it was held for the purposes of investigations in order to ascertain whether a person should be prosecuted for an offence, and which may lead to a report to the procurator fiscal (section 34(1)(a)(i) and (b)). 

In this case, I found that the public interest in maintaining the exemption in relation to police reports outweighed disclosure ? in order to ensure fairness to those involved, and to ensure that due process could be followed. In particular, I noted that disclosure under the Act would not be exclusively to the parents, but to the general public, and that separate provision may exist outside the Act to allow the parents access to information about the investigation.  With respect to the police investigation of Mr and Mrs Beasley's complaint, I found that the Police had correctly applied exemptions on the grounds that release would prejudice substantially their functions, for the purposes of ascertaining whether a person has been responsible for conduct which is improper (section 35(1)(g) in conjunction with section 35(2)(b)).  Again, this is in line with my findings in other similar cases.

Decision 145/2008 - Mr Paul Martin MSP and the Scottish Ministers

Mr Martin had asked for copies of reports presented to Cabinet Ministers concerning the procurement costs associated with public sector and private prisons. Ministers withheld two Cabinet papers which had been considered in 2007.  I accepted that both reports were exempt, being concerned with the formulation or development of government policy (section 29(1)(a)).This exemption is subject to a public interest test ? and I generally accepted that the public interest in maintaining this exemption outweighed that in disclosure.  However, during the investigation, I identified some paragraphs (which were largely factual and central to Mr Martin's concerns) which I felt were in the public interest to disclose.  I invited Ministers to withdraw their application of exemptions to these paragraphs, advising that I was minded to accept that the remaining information had been correctly withheld.  Ministers accepted this position and disclosed the paragraphs identified, allowing the final decision to apply only to the information withheld.


Decision 161/2008 - Millar & Bryce Ltd and North Lanarkshire Council

In this case, Millar and Bryce asked for notices (requiring repairs to be made to a building in a state of serious disrepair) made under section 108 of the Housing (Scotland) Act 1987 (HSA).  This is the first case in which I have I considered the exemption in section 34(4) of the Act.  This exemption applies where information is held for the purposes of civil proceedings brought by or on behalf of a public authority, which have arisen from investigations which meet the conditions set out in section 34(1) or (3) of the Act.  These sections apply to a range of investigations relating to the instigation of criminal proceedings.

In coming to my decision I accepted that, if a person does not act in response to a notice served under section 108 of the HSA, the Council may repair the property itself and then seek to recover the costs through civil proceedings. However, I did not accept that the information recorded in the notices was held by the Council for the purposes of these civil proceedings.  Instead, it was obtained or recorded in order to instruct those in control of houses in serious disrepair to carry out specified repairs.  Only if the works are carried out by the Council and then demands for payment are not met, are civil proceedings likely to follow.  I concluded that the exemption did not apply, and I ordered disclosure.


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.

 
News in brief
Illustration of example of graph

Awareness research report now published

In December I published the fifth wave of my annual awareness tracking research, reporting that public awareness of the Act is up once again, at 78% (a 34% increase since 2004).  The study also found that:

  • at least two thirds of the Scottish population favour extending Scotland's FOI laws to cover bodies such as housing associations, leisure trusts, PPP/PFI projects and private prisons;
  • the number of people who believe that Scotland's public authorities are becoming more open decreased to 59% (from 64% in 2007); and
  • 67% of respondents felt FOI was useful to them ? up from 62% in 2007.

The research is published on my website.


New model publication schemes

In June 2009, current publication schemes for local government, police and educational institutions expire, and these authorities will shortly be submitting new schemes for approval.  Publication schemes are a key way in which authorities make information proactively available to the public, and are a vital component of FOI culture in Scotland.  This year, my Office has worked with these sectors to develop model publication schemes which capture best practice and collective expertise, and can be adopted by any authority within the sector.  Model schemes have been approved for local authorities, the police, fire boards, valuation joint boards, universities and FE colleges ? and we expect to approve schemes for assessors shortly.  Approved model schemes are available on my website.

 
International visitors
Image of Kevin Dunion shaking hands with a Chinese visitor

In December, I welcomed several international visitors to my Office to share experiences of FOI in our respective countries. 

Suzanne Legault, Assistant Information Commissioner for Canada, spoke with my staff about our respective legislatures and her experience of operating FOI in Canada.

We also welcomed a delegation from Guangzhou City in China, keen to learn lessons from the Scottish experience and share their knowledge with us.

Photo: Welcoming Hairu Wu, leading a delegation from the People's Government of Guangzhou City, China
 
Event update

Logo for Centre for Freedom of Information

The inaugural seminar of the Centre for FOI in Scotland took place on 29 January at the University of Dundee.  The Rt. Hon. Lord Wallace of Tankerness QC, who introduced the FOI Bill when he was Deputy First Minister, gave a keynote address to 57 delegates entitled 'Freedom of Information: Hope and Experience'

Further seminars are scheduled for 27 March and 28 May ? details of these, and Lord Wallace's speech, are available on the Centre website at www.centrefoi.org.uk.

We are also planning a seminar to discuss the findings of a recent research study into the volumes of information requests to health and higher and further education bodies.  The event will identify both positive practice and further actions to support these sectors in the future.  More to follow in future editions of Inform.

 
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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