News and Commentary from the Scottish Information Commissioner

News & Commentary from the Scottish Information Commissioner

July/August 2010

 
In this edition of Inform, I reflect on the role of FOI in the current economic climate, and brief readers on the investigations process.  I share the date of the forthcoming Holyrood Annual FOI Conference 2010, and invite readers to help us improve Inform by completing a short survey (see news section below).
Head and shoulder Image of Kevin Dunion

There is little doubt we live in challenging times, as governments both north and south of the border look to cut public spending and realise far-reaching efficiencies in the public sector.  In this cold economic climate, rather than diminishing in significance, FOI may become even more important as the public seeks to understand difficult decisions in the public sector which impact on their lives.

FOI is not going to go away.  The UK coalition government has indicated it intends to widen the scope of FOIA[1], beyond that planned by the previous administration.  In Scotland, the Scottish Government is consulting over the summer on expanding the scope of FOISA[2] to cover leisure trusts, Glasgow Housing Association, the Association of Chief Police Officers in Scotland (ACPOS), and PPP/PFI contracts including private prisons and prisoner escort services.

In June, I addressed a conference entitled 'How can public authorities meet their FOI obligations economically, efficiently and effectively?'   This goes straight to the heart of the matter - the real task for authorities in current times is to embrace FOI, giving people the information they want, while minimising the impact on their resources.

My message to public authorities is clear.  Get it right first time.  Not only does this get information to people when it is still possible for them to contribute to decision making, but it also avoids the need for reviews or lengthy investigations - which can be costly.

When considering appeals to me, I will be increasingly expecting authorities to get their arguments for withholding information right first time, relying on the quality of those submissions in reaching my decisions.

A presumption of disclosure can also greatly increase efficiency and save costs.  FOISA exemptions and EIR exceptions are there for a reason, of course, and should be applied where they are genuinely needed.  But authorities should be asking themselves if they really need to expend considerable time deliberating which exemptions may or may not apply, when the simplest route may be to simply disclose.

Good records management supports more efficient and effective handing of FOI requests - although records management is a prerequisite of good governance, not just FOI compliance.  Recent research suggests that good record management enables authorities to provide better quality responses, more efficiently[3].  I also encourage public authorities to drive forward proactive publication of information - the UK Government's open data agenda, which is seeing volumes of government data being proactively published for the first time, is a positive example.

Public authorities are not alone in their efforts to improve the efficiency and effectiveness of their FOI practice.  This year, I have established a dedicated Assessment Team, comprising two of my investigations staff, who conduct practice assessments.  They work with authorities to prepare for assessment visits, conduct the assessments, and support authorities to implement practice improvements.  Many authorities who have been assessed have commented positively on the experience.  There is solid evidence of authorities, such as Northern Constabulary and Grampian Health Board, significantly improving performance, and many others have agreed to adopt recommendations for improvement made by my assessors.  The assessors have also identified good practice in handling FOI requests and these are detailed in the assessments which are available on the  pages of my website.


[1] Freedom of Information Act 2000

[2] Freedom of Information (Scotland) Act 2002

[3] Dr Elizabeth Shepherd, University College London 'Reducing the administrative burden of compliance: the importance of good records management'

 
What's in an investigation?
Sheets of paper printed with question marks

How long does an FOI investigation take?  A simple enough question, but not one with a simple answer.  Some investigations can take just weeks - a few have taken years.

I am required to report to Parliament what proportion of my cases are closed within 4 months - in 2009, this figure was 60%.  In 2009/10 I set a target for the average length of investigations[4] to be 6 months - we achieved 5.1 months.  I am committed to reducing this to 5 months by March 2011.  By way of comparison, the average age of cases closed in 2007 was 10 months.  By the end of 2009, only 1% of cases had been under investigation for over 12 months, compared to 10% in 2008, 12% in 2007 and 29% in 2006.

Clearly these are encouraging statistics - but they do not tell the whole story.  Why do some cases take years and others a matter of months?  The answer lies in the fact that no two investigations are the same.

An investigation typically comprises a number of stages (see box).  Some, such as recent Nirex and McKie decisions, involve the scrutiny of enormous volumes of information, to which a range of exemptions have been applied.  Fortunately, cases as complex as these are increasingly unusual.  Others involve consideration of complex legal issues, breaking new ground in interpreting the law.  As a rule, greater volumes of information and greater complexity lead to longer investigations - I am committed to ensuring decisions are based on sound reasoning and appropriate evidence.

Table showing stages of an investigation

Other factors can delay matters - for example, if an authority is suspected of a criminal offence under s65 of FOISA (altering records with intent to prevent disclosure), the Commissioner's investigation may be suspended to enable to police to investigate.  If a decision is appealed to the Court of Session, other similar investigations may have to be put on hold pending the outcome of the court case.  Again, these delays are rare, but where they do occur, it can be enormously frustrating for the applicant.

Of course, there is always more that can be done.  Applying weighting to cases to help manage caseloads, continually improving procedures, and setting ambitious targets are just some of the measures in place to help improve investigations performance.


[4] Defined as the time from validation to either informal resolution or decision being issued.

 
At a glance - May and June 2010
New applications received:  86
 Enquiries responded to:  286
 Cases closed - Decision Notice:  61
 Cases Otherwise closed  39
 
Key decisions issued
Files flying out of a cabinet

Decision 021/2005 - Mr Michael Collie and the Common Services Agency (CSA)

In the first ever appeal to the Commissioner in 2005, Mr Collie was refused childhood leukaemia statistics at census ward level for the Dumfries and Galloway area.  This case also became the first to be appealed to the House of Lords, in 2008.The critical issue was whether the statistics were the personal data of the children.  The CSA argued that the statistics could potentially identify children, even when steps were taken to disguise them.  The Commissioner, and then the Court of Session did not accept this, but the House of Lords allowed the CSA's appeal.  The case was remitted back to the Commissioner for further investigation, and this new decision replaces the earlier decision in the same case.  In the new decision, issued on 26 May 2010, the Commissioner has concluded that the statistics Mr Collie requested are sensitive personal data, and are exempt from release, but he has directed the CSA to provide Mr Collie with the statistics in a form which does not lead to identification i.e. aggregated for the whole of Dumfries and Galloway.

This long running case highlights the complex relationship between statistics and personal data.  Other cases have found that statistical information can be released under FOISA - highlighting the importance of considering each case on its merits.


Decision 094/2010 - Mr Rob Edwards and Scottish Ministers

First received in June 2006, this request was one of a number made by Rob Edwards, and concerned sites identified by Nirex for a potential nuclear waste disposal repository.  The request covered information contained in 1,182 separate documents, to which Ministers had applied a range of exemptions.  During the investigation the Commissioner worked with both parties to resolve as much of the case informally as possible e.g. removing duplicates and providing summaries of the withheld information, agreed with Ministers, to Rob Edwards to help him identify which files contained information which was of most interest to him.  This reduced the number of documents to 297.  Ministers also disclosed a significant volume of information to Mr Edwards during the investigation - in all more than 260 previously withheld documents were released during the investigation, and the decision focused on the remaining 30 documents.

The Commissioner found that these documents, which mainly consisted of legal advice and internal communications within the UK Government, were exempt under the EIRs.  They were supplied to Ministers by third parties who had no obligation to release them and had not consented to their release.  The Commissioner concluded their release would prejudice substantially the interest of the third parties.  Furthermore he concluded that the public interest favoured maintaining the exemptions.


Decision 109/2010 - Iain McKie and Mhairi McKie and Scottish Ministers

Following one of the Commissioner's most complex investigations to date, he ordered the release of previously-withheld information from 131 documents to the family of Shirley McKie.  The investigation involved information contained in over 630 individual documents, and the application by the Ministers of ten separate FOI exemptions.  The ruling required the Government to release all withheld information from 111 documents, and some withheld information from a further 20 documents. 

In ordering release, the Commissioner took the view that there is a significant public interest in knowing that Scotland has a fingerprint service which ensures that correct identifications are made, so that justice can be served.  He also found that Ministers had acted correctly in withholding information contained in a further 507 documents.  For the most part, he found that this information related to confidential legal advice supplied to the Scottish Ministers, which is subject to legal privilege.  The Commissioner found that there is a strong public interest in ensuring that individuals and organisations can communicate freely with their legal advisers and that the preservation of this privilege is fundamental to the administration of justice.  Had he found evidence in the information of wrong doing, or of unreasonable or reprehensible behaviour on the part of Ministers, the public interest outcome may well have been very different. 

However, finding no such evidence. he concluded that the balance of the public interest therefore lay in maintaining the confidentiality of these sensitive communications.

 
News in brief
PileOfNewspapers

Festival of Politics Event

On Saturday 21 August, the Commissioner will be joined by some of the individuals and organisations who have successfully used Scotland's freedom of information laws to explore the impact that FOI has had in Scotland.   The event, 'Freedom of Information ? What Difference Has It Made?' is part of the Scottish Parliament's 2010 Festival of Politics.

Those joining Kevin to discuss what has been achieved by FOI since 2005 will include:

  • Sandy Longmuir, who will explain how the Scottish Rural Schools Network has used FOI in its campaigns against rural school closures, even winning a change in the law;
  • Bill Scott, who will relate how the disabled people's organisation Inclusion Scotland used FOI to gather data about the quality of housing available for people with disabilities, leading to the development of new government guidance for authorities;
  • Michelle Stewart, who will discuss how the C Diff Justice Group used FOI to uncover information following the Clostridium Difficile outbreak at the Vale of Leven hospital in 2008, which claimed 18 lives.

The session will take place between 13:30 and 14:30 in Committee Room 3 of the Scottish Parliament, and is open to all.  A limited number of tickets, costing only ?1 each, are available by contacting Hub Tickets on 0131 473 2000, or by visiting www.hubtickets.co.uk.  We hope to see you there!

For more information on this and other Festival of Politics events, visit http://www.festivalofpolitics.org.uk/.


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Publication scheme consultation

The Commissioner is considering a radical new approach to developing publication schemes, and will be consulting on this over the summer and autumn.  Currently, public authorities can adopt a relevant sectoral model or develop their own scheme, and all schemes are assessed by the Commissioner individually. 

The new approach would see the development of one single model scheme, which all authorities would adopt.  This is similar to the approach taken by the ICO, but Scottish authorities would have to develop individual guides to their information under the scheme and notify the Commissioner they had done so.  The Commissioner would then focus resources on monitoring compliance.  If you want to know more about the forthcoming consultation, Contact the Scottish Information Commissioner.


Holyrood conference - save the date

The Holyrood Annual FOI Conference will take place on Wednesday 15 December.  This year's conference will explore, amongst other things, the role of FOI in the changing political and economic conditions in Scotland.  Confirmed speakers include the Scottish Information Commissioner, Minister for Parliamentary Business Bruce Crawford, Irish Information Commissioner Emily O'Reilly and Lord McNally, UK Minister of State for Justice.  As with last year, keynote addresses will be complemented with continuing personal development (CPD) -style workshops looking at practical issues.


First Practice Recommendation

The Commissioner issued his first Practice Recommendation on 6 July 2010, to Scottish Borders Council.  Under section 44(1) of FOISA, the Commissioner may issue a Practice Recommendation where a public authority does not conform to the various codes of practice issued under FOISA section 60, 61 and 62. 

This Practice Recommendation follows an assessment visit to the Council in February 2010, which found specific areas of failure to conform to the codes on matters of training, meeting deadlines, monitoring requests and content of refusal notices.  A Practice Recommendation cannot be directly enforced by the Commissioner, but failure to make the improvements suggested can lead to non-compliance with FOISA or the EIRs.  The Commissioner has asked the Council to provide him with a report within 3 months, with evidence to demonstrate improvement in areas identified in the Recommendation. A copy is available on the  pages on the Commissioner's website.

 
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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