News and Commentary from the Scottish Information Commissioner

News & Commentary from the Scottish Information Commissioner
July / August 2009

 
In this edition of Inform I compare the actions of Westminster MPs following the order to release expense details with that of their counterparts at Holyrood.  I also provide an update on recent international visitors to my office, and announce the date of the 7th Annual FOI Conference.
Kevin Dunion

Commissioner's Commentary

The recent blaze of headlines around MP expenses presents a timely opportunity to reflect on Scotland's own track record in this area. Indeed, as far as the Scottish Parliament is concerned, these last few months have been notable for the comparative lack of similar stories relating to MSP expenditure.

This is in part due to the fact that, in Scotland, the impact of FOI for Parliamentarians was faced up to early. In October 2005, when FOI was in its infancy, I ordered the disclosure of an MSP's travel expenses in response to a FOI request. While this disclosure certainly had repercussions for Holyrood, the response by Scottish Parliamentarians to my decision was markedly different to that of their Westminster counterparts.

In Westminster, MPs repeatedly sought to overturn the Information Commissioner's order to disclose, unsuccessfully appealing to both the Information Tribunal and the High Court. Alongside these formal appeals, the House of Commons also fought a rearguard action, twice attempting to retrospectively remove itself from the scope of FOI altogether, and, in 2008, approving a Statutory Instrument which took a range of information, including residential addresses, regular travel arrangements, and the identify of those providing goods or services at an MP's residence, outwith the scope of the legislation.

In contrast, the Scottish response to my order to disclose was to release expense information for all MSPs, not just that of the particular MSP who was the subject of the original request.

The result of this action is that, since the end of 2005, the Scottish electorate has had access to a sophisticated online database detailing MSP expenditure. As well as allowing the total expense claims of individual MSPs to be viewed, this database also allows for comparisons to be made between particular MSPs, or types of expenditure. While the Scottish Parliament does not publish individual receipts, nor details of MSP addresses or travel arrangements, such information can nevertheless still be requested in Scotland under FOI - something which the Statutory Instrument mentioned above now prevents in Westminster.

Following the launch of the database, Holyrood also quickly recognised the public dissatisfaction that MSPs were able to claim mortgage interest costs on second homes which they could later sell at a profit, and brought this practice to an end. Since October 2008, MSPs can no longer enter into new mortgage arrangements, and can claim only for leased property or overnight accommodation costs.

The Scottish Parliament's actions in response to the requirement to disclose provide solid evidence of the new transparency which the FOI Act was intended to usher in. It is vitally important, however, that we do not become complacent if we are to safeguard Scotland's reputation for having an open and progressive FOI regime.

The ongoing shockwaves caused by the Westminster revelations have seen variable reactions. The Westminster Government is proposing only a modest extension of FOI to cover academy schools, the Association of Chief Police Officers, and a couple of other bodies.  Set against that it intends to take the retrograde step of introducing new absolute exemptions for Cabinet papers and communications with the Royal Household.  Meanwhile, David Cameron has announced that, if elected, the Conservatives would introduce a 'right to data' to sit alongside FOI, allowing full datasets, in addition to individual documents, to be accessed by the public. This move follows steps being taken by the US Government to publish most government data and statistics online, readily accessible from one place, at www.data.gov.

The Scottish Government has already begun to consider enhancing FOI, issuing a discussion paper last year on extending the scope of the legislation to cover a wider range of bodies. This provides the prospect of third parties providing essential public services in exchange for public money - such as housing associations, leisure trusts and those running private prisons ? being brought within the scope of Scotland's FOI legislation. Such moves would bring Scotland closer to the international standard set by a range of countries - from Poland to France, Iceland to Peru - where FOI legislation ensures that key private organisations providing public services are covered. Such action would also ensure that FOI continues to provide accountability on where and how public money is spent within the changing public sector landscape.

Consultation closed in January 2009, so I await the Government's conclusions with great anticipation.

Kevin Dunion's Signature

Kevin Dunion
Scottish Information Commissioner

 
At a glance - May and June 2009
 New applications received:  68
 Enquiries responded to:  284
 Cases closed - Decision Notice:  29
 Cases otherwise closed:  34
 
Key decisions issued
Files flying out of a cabinet

Duty to advise and assist

Scotland's FOI Act places a duty on public authorities to provide advice and assistance to those making information requests. This could take many forms, from describing the types of information held that may be of interest, to helping a person make their request where they are otherwise unable to do so. In a recent case - Decision 074/2009 - the Commissioner found that Culture and Sport Glasgow fell short of its duty to advise and assist, and required it to take further action.

The requester wanted copies of all correspondence involving the Chief Executive of Culture and Sport Glasgow over a given time period. This information was refused on cost grounds, which dissatisfied the requester, particularly as the estimated cost provided by the authority was higher than the cost estimate for an earlier request for this information with no time limitation.

Having considered the case, the Commissioner did find that the authority had correctly refused the request on cost grounds, in that it would exceed the upper FOI cost limit of ?600 to provide the information. However, he also found that Culture and Sport Glasgow should have done more to inform the requester of what could be provided within the upper cost limit, in line with the duty to advise and assist. The Commissioner found that it would have been appropriate to provide the requester with access to a file list of the Chief Executive's correspondence, to enable her to identify the particular files she was interested in. He also found that it should have provided details of the way in which records were held, to allow her to reduce the scope of her request. The Commissioner considered that these measures would be consistent with the Scottish Government's code of practice on FOI request handling, which provides guidance for authorities on fulfilling the duty to advise and assist.

The Scottish Government's code of practice can be viewed at .


Disclosing personal data

Many of the cases considered by the Commissioner involve requests for access to the personal data of third parties. The assessment of whether such information should be released frequently involves a balancing test, where the interests of the requester in accessing the information are weighed against those of the data subject in withholding it.

Two recent decisions shed light on some of the delicate considerations which are undertaken when assessing these matters.

In Decision 075/2009, the requester asked for the name of a councillor who had been consulted by a particular constituent in relation to a planning dispute. Both the requester and the constituent concerned were directly involved in the dispute. In considering this case, the Commissioner found that, while the requester did indeed have a legitimate interest in knowing the councillor's name, in that it could inform any complaint to the Standards Commission, the constituent's right to privacy outweighed this interest. In coming to this decision, the Commissioner considered that the name of the councillor should also be considered to be the personal data of the constituent, because release of the councillor's name would confirm that the constituent had consulted the councillor about a particular matter at a particular time. He therefore concluded that disclosure of the councillor's name would entail an unacceptable intrusion into the private life of the constituent.

Decision 060/2009 concerned a request to the Scottish Qualifications Agency (SQA) for information about the people responsible for carrying out particular roles in the examination process. This included their names, as well as details of the educational establishments they worked for.

The Commissioner recognised that the requester had a legitimate interest in scrutinising the Scottish examination process, and in assessing the extent to which the roles in question were undertaken by a small group of individuals. In considering the interests of the data subjects, the Commissioner drew a distinction between junior and senior appointees.

With regard to junior appointees, the Commissioner found that there would be no expectation that this information would become publicly available, and that their interests in non-disclosure outweighed those in release (although he also found that anonymised statistical information about their roles could be disclosed). As for the senior appointees, the Commissioner noted that, as their names had already - and appropriately - been released to the requester, it would be relatively straightforward to go on to identify their educational establishment from material available in the public domain. He therefore found that the interests of the data subjects in withholding this information did not outweigh those of the requester, and required the release of this information.


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

Overseas Commissioners' visit

In June the Commissioner's Office was visited by two of his overseas counterparts, Shri Jagadananda, the Commissioner from the Indian state of Orissa on 1 June, and Natasa Pirc Musar, the Slovenian Commissioner on June 4. At both of these meetings, the Commissioners discussed FOI enforcement issues, and explored the similarities and differences between their respective regimes. These discussions revealed some interesting differences, with Mr Jagadananda reflecting on his power to impose fines on individual public authority employees where they have been found to have delayed the release of information, and Ms Musar explaining that she has the power to enter public authority premises at her discretion (i.e. without first having to obtain a warrant).

Ms Musar also spoke about her experiences as Slovenian Commissioner at a Centre for FOI event at the University of Dundee on 5 June. A report from this event will be available from www.centrefoi.org.uk shortly.

In September 2009, the Commissioner will also be hosting a visit from Jennifer Dilbert, the first Information Commissioner for the Cayman Islands, whose FOI legislation was influenced by the Scottish Act.

Kevin Dunion and Natasa Pirc Musar

Natasa Pirc Musar with Kevin Dunion
at the Centre for FOI, 5 June 2009


FOI Research Study published

Paul Mutch from the Commissioner's office spoke in June at the launch of 'Homes for Life?', a report by the disability charity Inclusion Scotland, which used FOI to collate and publish information on housing provisions for people with disabilities across Scotland. The report highlights areas of good practice among authorities, while also flagging up many areas where the charity considers that improvements can be made - in terms of both the services provided to disabled people, and the information held.

A copy of the report has been sent to all local authorities. It can also be viewed online here.

The Commissioner's own guide for the voluntary sector on making effective use of FOI is available .


Centre for FOI ? Autumn Seminar Series

The programme for the Centre for FOI's Autumn seminar series for 2009 will be published shortly. This series of seminars will explore the interaction between FOI and other legislation, while also exploring the practical experience of accessing information. The Centre for FOI is a joint venture between the Scottish Information Commissioner and the Law School at the University of Dundee.

Details of the full series will be available at www.centrefoi.org.uk shortly. Alternatively, you can sign up to the Commissioner's newsletter for further information here.


Diary Date ? 2009 FOI Conference

The 7th annual FOI conference, hosted by Holyrood Communications and supported by the Commissioner, will take place on Tuesday 8 December 2009 in Edinburgh. Both the Commissioner and Bruce Crawford MSP, Minister for Parliamentary Business (with responsibility for FOI) have been confirmed to speak at the event. The conference will consider the latest emerging themes in FOI. Further speaker and venue details will be confirmed shortly.

For further information, or to book a place, visit http://foi.holyrood.com/.


EIR Reference Group

On 5 June the Commissioner met with a group of experts from environmental, public policy and legal backgrounds to explore issues around the interpretation of the Environmental Information (Scotland) Regulations 2004 (the EIRs). The EIRs sit alongside the FOI Act and separately provide a right of access to environmental information.

The reference group discussed the definition of 'environmental information', and explored the types of bodies from outside the public sector that should be considered to fall within the scope of the EIRs.

The outcome of these discussions will inform the preparation of updated guidance on the EIRs.

 
Contact us
Photo 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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