News and Commentary from the Scottish Information Commissioner

News and Commentary from the Scottish Information Commissioner March /April 2009

 
In this month?s Inform I announce the launch of my 2008 Annual Report; draw attention to the decision by Scotland?s Chief Constables to publish proactively their expenses; flag up the availability of both an updated briefing on the personal information exemption and new FOI resources for the voluntary sector; and highlight the forthcoming seminars at the Centre for FOI.
Kevin Dunion

Commissioner's Commentary

 

This edition of Inform follows the launch of my 2008 Annual Report. At its launch I called upon the leaders of the Scottish public sector to push the boundaries of openness. I believe there is a need for public trust to be restored and a new model of leadership to be developed in Scotland where all our public leaders expect to be held to account. It is my view that public trust is greatest when people can see for themselves that public officials are doing a good job.

 

The annual report reviews the performance of my office during 2008 and sets out the strategic direction for my second, and final, term of office. Since 2005, as Commissioner, I have dealt with almost 2,000 freedom of information (FOI) applications. Of these applications, over 750 have required me to issue formal decisions. I am also pleased to report that at the end of 2008, the average age of cases closed during the year was 6.7 months (this compares with 10 months a year earlier). Additionally, only 10% of cases were over 12 months old at the end of 2008, compared with 29% at the end of 2006.

 

Looking forward, I want to ensure that public authorities get compliance with FOI right first time, and I will continue to press for safeguards to the public?s right to information. I therefore intend to devote more resources to assessing whether public authorities are generally meeting their obligations. Are they recognising requests for information and dealing with them properly under the Act? Are they informing people of their right of appeal to me? Towards this aim, my office is working with individual public authorities to help them improve their compliance, because good practice is the foundation of positive cultural change. For example, during 2009, 10 public authorities will be assessed for compliance with the Act.

 

In ensuring the public?s right to information, as Commissioner, I shall continue to pursue dialogue with the Scottish Government on designating new bodies under the Act. My desire to see the scope of the Act extended is a matter of public record, and I have recently recommended to the Scottish Government that it should designate housing associations, leisure trusts and contractors delivering high-value public service contracts.

 

In my 2007 Annual Report I introduced tables of information giving, by public authority and sector, the number of applications I had received and the cases I had closed with decision. This information was well-received and my 2008 annual report again provides public authority tables for 2005-2008. The report also contains case studies ? some of which have already featured in previous editions of Inform ? illustrating how people have used FOI, and by applying to me, have obtained information on a range of concerns.

  • In 2008, I dealt with 550 applications and closed 174 cases with decision, 127 cases were closed without investigation, 121 were withdrawn or settled. A greater proportion of cases under investigation are being settled or withdrawn, (39% during 2008 compared to 32% in 2007) as staff work with applicants and authorities to broker mutually satisfactory outcomes. 
  • The number of cases under investigation fell from 183 at the end of 2007, to 128 at the end of 2008. 
  • Public awareness of FOI increased again to an all time high of 78%.

 Copies of the report can be downloaded from my website here.

 
Publication of Police Expenses
here

I welcome the decision by Scotland?s Chief Constables to publish proactively their expenses at a time when the subject of trust in government and public officials is rarely out of the news. The Association of Chief Police Officers in Scotland (ACPOS) has developed a ?model publication scheme?, which includes detailed expenses for Chief Constables and Assistant Chief Constables.

Public authorities are required to produce a publication scheme, and such schemes specify the information which the authority publishes. A model publication scheme is a common scheme which is adopted, without modification, by a group of similar public authorities. The new schemes will go live by June 2009. This decision by ACPOS is a positive example of public sector leaders recognising the public interest in this kind of information. I believe that we need to see more such examples ? and not just in relation to expenses.

The model scheme is available on my website 

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At a glance - January and February 2009
 New applications received  75
 Enquiries responded to:  275
 Cases closed:  38

 Decisions issued:

 26
 
Key decisions issued
Your Right to Know Cover - No Text

Decision 006/2009 John Cannon and Glasgow City Council

Glasgow City Council employed agency staff within one of its Social Work sections. Mr Cannon was unhappy with this arrangement rather than offering overtime to current employees. Under the Council?s whistleblowing policy, he reported the matter to the Council?s auditors. Mr Cannon understood that he would receive a copy of the audit report, and was disappointed when, instead, he received a summary of the outcome of the investigation. He made an information request to the Council for the papers relating to the outcome of the audit. The Council withheld the documents under a variety of exemptions. The Council focused on the harm which could be caused to the agency providers if their financial information was disclosed to a commercial rival, and claimed the information was exempt under section 33 (Commercial interests and the economy).

On investigation I found that most of the information related to the process of carrying out the audit and reporting the findings.. I found that most of the information in the documents withheld would not prejudice the commercial interests of the Council or its service providers and ordered this information to be disclosed. The Council also claimed that the information contained personal data which was exempt from disclosure, but did not specify which information it considered to be personal data. I found that the personal data in the documents fell into three separate categories: (1) individuals employed by the agencies or Council to work in the hostels; (2) Council employees whose names or job titles appeared on documents submitted to the auditor, but who were not involved in the audit investigation; and (3) Council officials and agency staff involved with Mr Cannon?s whistleblowing complaint and/or actively involved in the subsequent audit investigation. I decided that it would be unfair to disclose the personal data of groups (1) and (2) since they were not directly connected with the audit investigation or the decision to employ agency staff. For the most part, I decided there were genuine reasons why disclosure of the third group should take place: for example, to improve understanding of the process used in the audit investigation and show the extent of the enquiries undertaken. Such disclosure would also show who was involved and whether Mr Cannon?s concerns were treated seriously.

Decision 010/2009 Paul Martin MSP and the Scottish Ministers

Mr Martin had asked the Ministers for documentation relating to the Scottish Government?s commitment to providing an additional 1,000 police officers. The Ministers responded by advising Mr Martin that the information was considered exempt from disclosure in terms of sections 29(1)(a) and (b) (Formulation of Scottish Administration policy etc) and 30(b)(i) (Prejudice to effective conduct of public affairs) of FOISA. In this case I ordered some of the information that had been withheld to be disclosed. I ordered the disclosure of information that was already substantially in the public domain or where the documents provided largely factual information about the process by which policy would be developed. However, for some of the withheld information I came to the conclusion that disclosure so soon after creation would be likely to significantly harm the candour with which such drafts were prepared in future.

Decision 014/2009 Dunbritton Housing Association etc and the Chief Constable of Strathclyde Police

In this case, three housing associations made requests to Strathclyde Police for the numbers of registered sex offenders (RSOs) living in certain postcode areas, requesting information to the level of the fourth digit of the postcodes. These housing associations believed that poorer communities are carrying an unacceptable and disproportionate burden of housing provision for RSOs and therefore wished to know the number of RSOs in these areas in order to prove that this was the case. The associations made it clear that they wanted statistical information only, not the identity of any of the individuals. Strathclyde Police refused to disclose this information on the basis of a number of exemptions.

My decision focused on the exemption in section 38(1)(b), which relates to personal information. The first matter I had to consider was whether the disclosure of the information could identify individual RSOs. Having studied the information withheld, I found that it could. I took account of how the Office for National Statistics (ONS) deals with requests for sensitive personal data and found that the geographical and population size of the postcode sectors in this case were substantially smaller than the size deemed ?safe? by the ONS. I also took account of comments made by Lord Hope in the Collie case and the requirements of recital 26 to EU Directive 95/46/EC, which require me to consider all the means likely to be used to identify individuals. Having taken into account information already in the public domain ? and information which was likely to be in the public domain ? I decided that the information was personal data.

I then considered whether there were any conditions in schedule 3 to the Data Protection Act 1998 that would permit the data to be disclosed and found that there were no such conditions. Accordingly, I found that Strathclyde Police had acted in accordance with Part 1 of the Freedom of Information (Scotland) Act 2002 in withholding the information requested.


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
Pile of Newspapers

New personal information briefing available

I am pleased to report the publication on my website of an updated briefing on the personal information exemption (provided by section 38 of the Freedom of Information (Scotland) Act 2002). This completes the full set of Commissioner?s guidance on the exemptions. My website now contains twenty briefings, each designed to assist public authorities and others wishing to understand the legislation and how it has been interpreted in my decisions.

Commentators have acknowledged as complex the relationship between freedom of information (which is founded on openness) and data protection (which is based on the privacy of personal data).The briefing on personal data encompasses the House of Lords decision in the Collie case (which related to childhood leukaemia statistics in Dumfries and Galloway). It takes account of the guidance from the Information Commissioner?s Office (ICO), which is responsible for the Data Protection Act. My decisions, and those of the ICO and the Information Tribunal, are also included. I trust that users will find the flowchart for dealing with requests for personal information, contained within the briefing, helpful.

The briefing is available here.


New FOI resources for the voluntary sector

Following from my concern that FOI rights may be underused by the voluntary sector, I have launched on my website new resources to support the voluntary sector in using FOI. These resources include a web-portal with advice and guidance on how to make use of the FOI 'right to information', an enquiry service providing one-to-one support, advice on framing information requests to public authorities, and examples of the wide range of information that can be requested. The new web-portal features helpful examples of past use of FOI laws by voluntary organisations, which illustrate how FOI can be of real benefit to that sector.

Click  to access these resources.


Forthcoming engagements

On 15 -17 April 2009 I shall attend the Joint University Council/Public Administration Committee (JUC/PAC) FOI Research Workshop at the Durham Business School of Durham University. This workshop will include academic papers and discussion, and I will present a paper on the FOI experience in Scotland and, in particular, consider the specific impact of freedom of information laws on the local government sector in Scotland.

The annual FOI Live Conference will take place on 11 June 2009. FOI Live is a UK conference organised by the Constitution Unit of University College London (UCL), the Ministry of Justice and the Information Commissioner?s Office (ICO). This year I shall speak on Lessons from Scotland for Practitioners.

Logo for the Centre for Freedom of Information

Event Update

By the time of publication of this edition of Inform, the second seminar of the Centre for Freedom of Information in Scotland will have taken place on Friday 27 March 2009 at the University of Dundee. Professor Alan Page, Dean of the Law School of the University of Dundee, and Co-Director of the Centre, will give a lecture entitled Freedom of information in the devolved Scotland.

Following the lecture there will be a discussion chaired by the eminent Law Lord, Rt. Hon. Lord Rodger of Earlsferry, former Lord President of the Court of Session and now Lord Ordinary of Appeal in the House of Lords, the final appeal court on points of law for the United Kingdom for civil cases. I shall deliver the final lecture in this first set of seminars on 5 June 2009 when I examine how Scotland stands in the world of FOI.

More about these seminars will feature in future issues of Inform. The Centre is a collaborative project between the University of Dundee and the Scottish Information Commissioner and participation in the seminars is free of charge. The website for the Centre is www.centrefoi.org.uk

   
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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