News and Commentary from the Scottish Information Commissioner

News & Commentary from the Scottish Information Commissioner

January/February 2010 

 
In this edition of Inform, I reflect on 5 years of FOI, and look forward to the next 5 years.  I update readers on our new guidance following a recent Court of Session ruling, and report on the events my Office is holding to celebrate the 5th anniversary of FOI in Scotland.
Head and shoulder Image of Kevin Dunion

On 1 January, it was 5 years to the day since Scotland's FOI Act came into force, and every individual gained a new right to information from Scotland's public authorities.  The new law represented the first steps in a fundamental change of culture in Scotland's public sector from the 'need' to know to a universal 'right' to know.  'Universal' because, importantly, FOI rights are not the exclusive preserve of lawyers, journalists or campaigners ? they can be used by anybody, regardless of who or where they are, or why they are seeking information.

Five years on, we can celebrate real success.  Scotland has become more open, with public authorities disclosing more information than ever before.  We have seen headlines around high profile releases such as politicians' expenses and surgical mortality rates ? with Scotland leading the way in the UK in making this kind of information routinely available.  Beyond the headlines, however, people are using their FOI right to access information which is important to them.  Whether they are campaigners working for change, MSPs helping their constituents use their rights, or simply ordinary families looking for answers, FOI is benefiting the lives of individuals as well as improving society as a whole.

Of course, not every request will be dealt with to the requester's satisfaction, and a critical element of Scotland's FOI regime is the right to appeal to an independently appointed Commissioner who can investigate impartially and make legally enforceable decisions.  I can ? and do ? order public authorities to disclose information that they have sought to withhold.  More than half of my rulings have overturned an authority's decision in some way.

As we celebrate the success of the first 5 years, we should also be mindful that this is just the beginning.  There are many areas where we could ? indeed must - do better.

A new research study by The University of Strathclyde[1] examined the use of the Act by the voluntary sector, and found that many authorities may be failing to advise requesters of their rights of appeal ? despite this being a statutory requirement of the Act.  The same study showed that almost half of voluntary sector respondents feared that requesting information from public authorities might harm working or funding relationships.  Our annual public awareness survey, published in November, showed that while awareness of FOI rights remains high, understanding of those rights has dropped over the past year.  And changes in how public services are delivered, e.g. when services are out-sourced to private organisations and charitable trusts, have led to an erosion of rights to information.  Which is why I have welcomed the announcement by Scottish Ministers that they will consult on extending the Act to cover new bodies including leisure and recreational trusts, PPP/PFI contracts, the Association of Chief Police Officers in Scotland, private prisons and The Glasgow Housing Association.

There is, in short, more work to be done to ensure that Scotland's FOI regime fully lives up to its potential, and that rights are safeguarded.  Nevertheless, when reflecting on the first 5 years of FOI, we can all be proud of what Scotland's FOI regime has achieved, and I'd like to thank all those who have worked hard to bring these achievements to pass.

Kevin Dunion's Signature

Kevin Dunion, Scottish Information Commissioner

[1] The University of Strathclyde's research report, 'Volunteering Information? The use of Freedom of Information laws by the third sector in Scotland' is available to download

 
New guidance on validity of requests
Image of legal books and advocate's wig

I have issued important new guidance on 27 January 2010, explaining the practical effects for public authorities and applicants of the Opinion of the Court of Session in Glasgow City Council v Scottish Information Commissioner.  In it, I advise on the interpretation of information requests, alongside the duty to advise and assist applicants.

The FOI Act provides a right of access to information, not documents.  However, requests for documents are not automatically invalid.  As long as it is reasonably clear that it is information contained in the documents that the applicant wants, an authority should respond - requesting a document is a commonplace way to describe information.  If the request is not reasonably clear, the public authority should contact the applicant to seek clarification.

The Opinion also considered requests made on behalf of other people.  There is nothing to stop someone making a request on behalf of another person ? but such requests must name the third party (the 'true applicant').  If a request is made on behalf of an unnamed person, the authority should provide reasonable advice and assistance, explaining what should be done to make a valid request.

If an authority rejects a request as being 'invalid', it must advise the applicant of the right to request a review and, if still dissatisfied, to make an application to me.

I urge all authorities to review their procedures in the light of this guidance.  In the event that an authority has determined any requests invalid on either of the above grounds following the Court of Session Opinion, it should review those requests and satisfy itself that it has complied with its responsibilities under the legislation, including advice about the right to request a review.

View Information or documents.

 
At a glance - November and December 2009
 New applications received:  60
 Enquiries responded to:  200
 Cases closed - Decision Notice:  31
 Cases otherwise closed:  50
 
Key decisions issued
Image of filing Cabinet with documents flying out of it

Decision 122/2009: Alex Neil MSP and South Lanarkshire Council

This is the second decision issued by the Commissioner which looks at whether financial models should be disclosed; in this case, the model related to the Council's PPP schools project. In the first decision involving financial models*, the Commissioner found that the age of the model and the fact that so much had changed regarding PPP practice since the model was used, that disclosure would not prejudice substantially the contractor's commercial interests. However, this case was slightly different. The model was much newer (two years old when the request was made) and the Commissioner came to the conclusion that it continued to have commercial significance and was exempt from disclosure.

*Decision 104/2009: UNISON Scotland and the Scottish Prison Service


Decision 126/2009: Teresa Cleere-Martin and Glasgow City Council

This involved a request by Mrs Cleere-Martin for the minutes of the Young People's Sexual Health Steering Group. The Council provided her with redacted versions of the minutes, but withheld the names of some of the individuals who were identified in the minutes and who had not consented to their names being disclosed. This was on the basis that the names were personal data, and that disclosure would breach the data protection principles contained in the Data Protection Act 1998. However, the Commissioner could not agree that the names were by themselves personal data. While he agreed that individuals could be identified, there was nothing in the minutes about them beyond their casual connection with particular meetings held on particular dates. By itself, the information said nothing about their involvement in the meetings. The Commissioner therefore ordered the names to be disclosed. However, he agreed that the Council had been correct to withhold other information which was personal data and which clearly associated the individuals with specific aspects of work of the Steering Group.


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.

The full text of all decisions issued under Scotland's FOI legislation can be viewed on the Commissioner's website.

 
News in brief
Pile of Newspapers

'Reflecting on FOI' ? A roundtable discussion

On 14 January the Commissioner, in partnership with the Journal of the Law Society of Scotland, met with a small group of practitioners, legal experts, and academics to reflect on the past, present and future of FOI in Scotland, as part of the 5th anniversary celebrations.  The lively and frank discussion covered a wide range of topics, from the interaction between FOI and data protection legislation, to the potential challenges and opportunities facing Scotland's FOI regime in future.  Details of the discussion will feature in the March edition of the Journal.


Annual Report 2009

The Commissioner will publish his sixth Annual Report in early March 2010 - and it will be a report with a difference, as the Commissioner introduces an entirely fresh approach.  As before readers will be offered views, facts and figures on FOI in Scotland ? but this year the report will take the form of a mini-website, allowing users to interact with the content, and access news about FOI in new ways.  An easily digestible report summary and a downloadable version of the report will also be available, for those who prefer to view a printed version.  Details of how to access the report will feature in the next edition of Inform.


Parliamentary reception ? 4 February 2010

Michael Matheson MSP, is hosting a reception at the Scottish Parliament, on 4 February 2010, to celebrate FOI's 5th anniversary in Scotland.  Over 200 guests from all walks of Scottish life will be joined by the Minister for Parliamentary Business Bruce Crawford and the Commissioner, to reflect on FOI's success in Scotland to date and look forward together to the next 5 years.


Centre for FOI ? Forthcoming seminars

The Centre for FOI is a joint venture between Dundee Law School, University of Dundee and the Scottish Information Commissioner.  Its successful seminar series continues with an event on Thursday 11 February 2010, entitled 'Freedom of Information and Commercial Interests'.  Keynote speakers will be: Fiona Killen (Partner) and Audrey Cameron (Associate), Anderson Strathern LLP, who will talk about FOI and public procurement; and Professor Allyson Pollock, University of Edinburgh, who will talk about Information in public health research.


Commissioner welcomes consultation on designation

On 8 December, the Minister for Parliamentary Business, Bruce Crawford, announced the Government's intention to formally consult on the designation of new bodies under section 5 of the FOI Act.  The planned consultation will cover: leisure and recreational trusts; PPP/PFI contractors involved in projects to deliver hospitals, schools and trunk roads; The Glasgow Housing Association; the Association of Chief Police Officers in Scotland (ACPOS); and private prisons.  The Commissioner welcomes the Minister's announcement and looks forward to actively contributing to the consultation.  The Commissioner's submission to the Government's discussion on designation, in early 2009, is available on his website.

 
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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