News and Commentary from the Scottish Information Commissioner

Inform - News & commentary from the Scottish Information Commissioner

Mar/Apr 2008

 

In this edition I announce the launch of my 2007 Annual Report, highlight the publication of the first in an ongoing series of updated FOI briefings, report from an international conference on developing FOI rights, and flag up the availability of revised publication scheme guidance for Scottish public authorities.

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Annual Report launch

This edition of Inform coincides with the launch of my 2007 Annual Report, which provides a comprehensive snapshot of the development of FOI in Scotland to date.  Rather than focus solely on the experiences of the last year, my 2007 report explores the progress of FOI since the Act received Royal Assent in 2002 - while also looking forward to the potential challenges facing Scotland's FOI regime in 2008 and beyond.

A key feature of the report is the range of data it provides including, for the first time, statistics on the performance of individual public authorities under FOI.  Through this data, readers have both an 'at-a-glance' guide to the performance of each of the 135+ public authorities that have been the subject of FOI appeals since 2005, and an overview of the outcome of the 1,574 applications made to me.  I anticipate that the data in the report will enable it to be used as a year-round resource by stakeholders, providing a vital yardstick by which Scotland's developing response to FOI can be measured.

The report also explores the impact that FOI has had on the people and institutions of Scotland.  Research conducted during 2007 revealed that 89% of Scottish public authorities felt that they had become more open as a direct result of the FOI Act.  This is a view which was broadly shared by the Scottish public, with 64% believing that authorities are becoming more open and accountable.  Our research also reveals that approximately one in ten had made a written request to a public authority and, of those, a heartening 86% received some or all of the information they sought.

The report provides several examples of the types of information that have been released to the public as a result of such requests.  These range from information on local planning matters to an entire NHS PFI contract.  The examples listed in my report will, of course, represent only the tip of the iceberg as far as Scotland's FOI activity is concerned, comprising only those requests which are deemed sensitive enough to merit an appeal to my office, and not reflecting the day-to-day FOI communications that regularly serve to strengthen the relationship between individuals and public authorities.

Looking to the future, I conclude the report by setting out my view on the challenges still facing Scotland: helping public authorities to improve performance; ensuring that the FOI agenda continues to be driven forward; promoting awareness within all sectors of society; and ensuring that changes in the way public services are provided do not result in an erosion of newly-minted FOI rights.  Only by addressing these challenges can we continue to work towards the goal of creating a truly open Scotland.

 

Copies of the report can be downloaded by clicking here. 

Hard copies can be requested from my Office - details below.

 

Scottish experience contributes to international FOI recommendations

photo of Carter Centre

In February I participated in an international conference organised by the Carter Center in the USA.  Chaired by former US President Jimmy Carter, delegates from 40 nations worked on an "Atlanta Declaration" setting out the principles and key actions for implementing and enhancing access to information worldwide.  Conference speakers included Judge Diego Garcia-Sayan of the Inter-American Court of Human Rights, who provided a detailed insight into a landmark decision by the Court that the right to information is a human right.  There was particular interest in ensuring that FOI laws provide for an independent appellate process, such as a Commissioner.  As a result, I was asked to take the stage for the Carter Conversations, in which I set out the experience in Scotland and fielded questions from the 450-strong audience.

The Carter Centre is both a building and an NGO.  The building is an attractive purpose-built facility set low amongst trees and gardens 15 minutes from Atlanta city centre.  As well as housing the Presidential Library and Museum, it also has offices and conference space for the staff and volunteers who work on a variety of human rights programmes, including support for the establishment of FOI laws around the world.

http://www.cartercenter.org/homepage.html
 
Key decisions issued
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Decision 023/2008 - Paul Drury and Glasgow City Council

Mr Drury asked the Council to provide him with details of the transport and hotel costs associated with Glasgow's bid to stage the 2014 Commonwealth Games.

The Council refused Mr Drury's request, arguing that the release would harm both the effective conduct of public affairs (section 30 of the FOI Act) and the economic interests of the whole or part of the UK (section 33(2)(a)).

This case was the first in which I have been required to consider the section 33(2)(a) exemption in a decision.  The Council argued that releasing the information sought by Mr Drury prior to the Commonwealth Games Federation's decision on where to stage the 2014 games may have had a detrimental effect on Glasgow's bid.  The Council argued that, should this contribute towards a decision by the Federation not to stage the games in Glasgow, it would harm the economic interests of both Glasgow and Scotland as a whole.

I was not, however, persuaded that the disclosure of the information would have a harmful effect on Glasgow's chances of winning the bid, and did not accept that disclosure would have the economic impact foreseen by the Council.  I also did not find that disclosure would harm the effective conduct of public affairs.

I therefore ordered the Council to release the information to Mr Drury.


Decision 002/2008- Ms Diana Cairns and the City of Edinburgh Council

My decision in relation to this application represents another first - in this case the first time that I have ordered the release of legal advice in circumstances where I have concluded that legal professional privilege has been waived.

The FOI Act contains an exemption under which authorities can withhold information where a claim to confidentiality of communications could be maintained in legal proceedings.  This exemption will commonly cover the communications between a solicitor and their client, which will normally be subject to legal professional privilege.

In this case, however, I found that the substance of the information requested by Ms Cairns - legal advice in relation to a proposed development on Portobello Park and Golf Course - had been disclosed to a significant extent by the Council in publicly accessible committee minutes.  As a result, I concluded that this public disclosure had the effect of waiving the Council's right to legal professional privilege in relation to that information.

On this basis, I found that the relevant exemption could not be applied, and required that the legal advice be released to Ms Cairns.


Decision 030/2008 - Mark Nixon and Glasgow City Council

Under the FOI Act information can be withheld by a public authority where it is due to be published within 12 weeks of the request.  The Council applied this exemption in response to Mr Nixon's request for information on the Council's pay and benefits review.

For the exemption to be appropriately applied, however, an authority must demonstrate that the information was held with a view to being published within 12 weeks of the request at the time the request was made, and that it is reasonable for it to withhold the information until that time.

In this case, while it was clear that the Council intended to publish some information at some point in the future, I was not satisfied that the information was held with a view to being published within 12 weeks of the information request.  I therefore found that the Council had failed in its obligations under the FOI Act by not providing the relevant information in response to Mr Nixon's request.


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 - January and February 2008
New applications received: 45
Enquiries responded to: 220
Cases closed: 81
Decisions issued: 41
 
News in brief
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Commissioner reappointed

On Thursday 24 January, the Scottish Parliament backed, by assent, a motion by Mike Pringle MSP on behalf of the SPCB for my nomination to HM The Queen for reappointment to a second, final, term.

I am pleased that this reappointment will allow me to continue my work to promote and enforce Scotland's FOI legislation until 2012.In my first five years in post I have relished the challenge of interpreting FOI, and look forward to building on what has been achieved so far.  Over the coming years I also intend to continue my work to ensure that Scotland's growing international reputation as a progressive FOI regime can be further developed and enhanced.


Court of Session rules on Enterprise Act case

The Court of Session has ruled that Part 9 of the Enterprise Act 2002 constitutes a prohibition on the disclosure of information under the FOI Act.

The ruling follows an appeal by Dumfries and Galloway Council against decision 210/2006, in which I found that Part 9 of the Enterprise Act did not constitute a prohibition under on disclosure.  The Court of Session's ruling quashes this decision and, as a result, I have subsequently issued a revised decision on my website.

The full text of the Court's ruling can be viewed at: www.scotcourts.gov.uk/opinions/App.


Publication Scheme Guidance available

The FOI Act requires that each Scottish public authority has a publication scheme in place that sets out the information it proactively makes available.  New guidance for public authorities on the preparation of publication schemes is now available from my website.

Each of Scotland's public authorities is required to submit a revised and updated publication scheme on a rolling programme of approval, the first wave of which will run from 2008-2012.


New briefings available

The first of an ongoing series of updated briefings on the handling of requests under the FOI legislation has been added to my website.  The new briefing relates to section 14 of the FOI Act, which allows authorities to refuse information requests where a request is either vexatious or repeated.  Further updated briefings will be added to the website during 2008, with a new briefing on prejudice to the effective conduct of public affairs and an updated commercial interests briefing due for publication shortly.

The full range of available briefings can be accessed at: www.itspublicknowledge.info/briefings.

 
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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