News and Commentary from the Scottish Information Commissioner

News & Commentary from the Scottish Information Commissioner
May / June 2009

 

This month I provide an overview of the broadening scope of the work of my office, and summarise the priorities set out in my recently published Operation Plan for 2009/10.  I also highlight key decisions which demonstrate the use of FOI by the voluntary sector, and give a brief update on the University of Strathclyde's study to examine FOI use within the sector.

Kevin Dunion

Commissioner's Commentary

Improving practice

The Scottish public's enthusiastic uptake of the FOI right has meant that, since 2005, my resources have primarily been concentrated on the investigation of individual appeals. 2009, however, has seen the focus of my work widen. As FOI has bedded in I have increasingly been able to maintain a dual focus, continuing to investigate appeals, while also working proactively with authorities to ensure that good practice is followed when FOI requests are first received.

This proactive work is undertaken through practice assessments, as set out in my 2008 Enforcement Strategy. These assessments involve my staff working collaboratively with individual public authorities in order to review, assess and, where relevant, improve FOI practices. While it is widely recognised that Scottish public authorities have on the whole responded positively to the challenges of FOI, there have inevitably been times where practices have fallen short of the legislative requirements. My aim in undertaking assessments is to work closely with individual authorities where problems may have arisen, assisting them to develop practical solutions so that problems can be quickly resolved. The assessment programme forms a key part of a range of good practice resources for authorities, which also includes detailed guidance briefings and an advice and support service.

I plan to complete 17 assessments by the end of this financial year, with participating authorities drawn from a cross section of public bodies. A wide range of factors have informed the selection of authorities, including evidence gathered from previous FOI investigations, responses provided to a survey questionnaire, comments received by my office from members of the public, or, in some cases, a more generalised concern that I have not yet examined the response to FOI by a particular body or sector.

The first two practice assessment reports were published on my website this month, and a further two assessment visits have now been completed, with reports due for publication shortly. I am pleased to report that the assessments carried out to date have been a positive and collaborative experience, with the authorities in question embracing the experience as an opportunity to identify and address problems and improve FOI procedure. The underlying principle of my enforcement strategy is to support Scottish public authorities in developing a culture of willing compliance with regard to FOI, and it is reassuring to note that, on the basis of experience to date, the assessment programme is helping us take strong steps towards that goal.

Further details, along with reports from completed assessments, can be found on my website at .

 

Practice Assessment Table

3 Further assessments for 2009/10 are to be confirmed.

 

Planning ahead

I am pleased to announce that my Operational Plan for 2009/10 has now been published, and is available to download from my website. The Operational Plan sets out in detail the activities which my team will undertake in the coming year to continue to progress towards the achievement of the objectives identified in my Strategic Plan 2008-2012.

This year's plan builds on the successes achieved in the first year of the strategic plan and, in particular, the efficiencies in investigations which eradicated the backlog and reduced the time taken to close cases. Our new Operational Plan sets further ambitious enforcement targets which will improve even upon that performance.

In addition, we are also working with public authorities to improve the quality of FOI publication schemes, and are continuing to develop a programme of FOI activity for public authority professionals and others through the Centre for Freedom of Information, in Dundee (see News in Brief below for more information).

Alongside this, our operational management systems are undergoing a thorough review to ensure that we are resilient, efficient and effective. At a time of change we will share our experience and cooperate with others to make the most of our resources.

Kevin Dunion's Signature

Kevin Dunion
Scottish Information Commissioner

 

 

At a glance - March and April 2009

 New applications received:  73
 Enquiries responded to:  321

 Cases closed:

 40
 Decisions issued:  32
 
Key decisions issued
Files flying out of a cabinet

Disclosure of police informant payments ordered

The Commissioner was asked to investigate the refusal by six police forces to release details of the payments made to confidential informants. The applicant, a journalist, sought annual totals from each force, along with general reasons for payment.

In Decision 037/2009, the Commissioner found that, for smaller force areas, an extraordinary payment would be difficult to mask - even in an annual total - with the possibility that it could be linked (rightly or wrongly) with specific police activity. He considered that this could then allow inferences to be drawn about informant activity. As a result, he accepted that the information requested in relation to smaller forces was exempt from disclosure, under the FOI Act's 'law enforcement' exemption. He also concluded, however, that equivalent information in relation to the two larger forces ? Lothian and Borders and Strathclyde Police ? could be released, for the reason that the scale of each force's activity (and corresponding payments) was large enough to ensure that any extraordinary payments could be masked effectively in the annual total.


Third Sector FOI use

Two recent cases demonstrate the effective use of FOI by campaign and voluntary organisations in Scotland. These cases are particularly noteworthy as the Commissioner has spoken previously of his concern that the FOI right may be being underused by the third sector.

In Decision 050/2009, the Commissioner ruled on a request by the disability charity Ecas for information on the City of Edinburgh Council's decision to reduce funding to the Edinburgh Disability Equality Forum. Ecas wanted the information to consider whether the Council had demonstrated due regard to disability equality in making its funding decisions. While the Commissioner found that the Council had acted in accordance with FOI in withholding a small amount of information in three of the disputed documents, he also found that the remainder of those documents, along with five others, should be released in full. The ruling requires the Council to release a range of information, including meeting notes, a briefing to councillors, internal email correspondence, and a report prepared for the Council's budget group.

In a separate case, considered in Decision 038/2009, the angling conservation group Fish Legal sought information from the Scottish Environment Protection Agency about specific pollution incidents. This case was considered by the Commissioner under the Environmental Information (Scotland) Regulations 2004 (the EIRs), which sit alongside the FOI Act and govern access to environmental information. While the Commissioner found that some information, including witness statements from third parties, had been correctly withheld under the EIRs, he also found that statements made by SEPA employees in relation to the incidents should be disclosed. In coming to this decision the Commissioner considered that, while the release of third-party witness statements may deter other witnesses from coming forward in future, there would be no equivalent inhibitive effect from the release of employee statements. The Commissioner also took into account the fact that legal proceedings in relation to the pollution incidents had concluded.

Information on FOI resources for the voluntary sector can be found at  .


Personal data decisions

There have been a number of recent decisions concerning personal data, all of which reflect the outcome of the UK's first FOI appeal to be considered by the House of Lords ? the Scottish Information Commissioner's ruling in the case of Mr Michael Collie and the Common Services Agency of the NHS.

The recent decisions issued take full account of the House of Lords' judgement, and will be of interest to any practitioners dealing with requests for personal information under the FOI Act. Recent cases include:

Decision 027/2009 - Highland News Group and Highlands & Islands Enterprise

Decision 028/2009 - Robert Pillans and East Lothian Council

Decision 030/2009 - Ms C Alexander and Ayrshire & Arran NHS Board

Decision 032/2009 - Paul Bradley and West Lothian Council

The Commissioner's guidance on dealing with requests for personal information has also been updated in light of the House of Lords decision ? this is available from www.itspublicknowledge.info/briefings.

 
News in brief
Pile of Newspapers

Reflected glory?

Friday 5 June saw the Commissioner place Scotland's FOI experience in an international context at the Dundee Centre for Freedom of Information, addressing the topic  ''Reflected glory?' how does Scotland stand in the world of Freedom of Information?'  The event also featured reflection from Natasa Pirc Musar, the visiting Slovenian Information Commissioner, and was followed by a discussion chaired by Rosalind McInnes, Principal Solicitor, BBC Scotland. An update from the event will be included in the next edition of Inform, while a full seminar report will be available from the Centre for Freedom of Information's website shortly.

For further information on this and future Centre for Freedom of Information events, visit the Centre for Freedom of Information. Speeches from previous events are also available to download at the site.


Research Survey launched

Regular readers will be aware of the Commissioner's collaborative study with the University of Strathclyde to explore the use of FOI by civil society organisations. We are pleased to report that the University of Strathclyde's research questionnaire has now been launched, and we would ask any representatives of voluntary sector organisations, campaign groups, community activists or other civil society organisations to take a few minutes to complete it.

The survey contains a small number of questions relating to the respondents own experience - or lack of experience - requesting and receiving information from public bodies. The survey should take around five minutes to complete, and a report will be published by the University of Strathclyde in the autumn.  The survey report will also help the Commissioner in his ongoing development of resources for the voluntary sector.

The survey is available at: http://tinyurl.com/strathclyde-survey


Committee Reports

On 21 May the first report of the Scottish Parliament's Review of Scottish Parliamentary Corporate Body (SPCB) Supported Bodies Committee was published. Having considered the status of individual bodies supported by the SPCB, the Committee recommends that the Scottish Information Commissioner should remain as a separate, stand-alone body.

The full report can be viewed online at www.scottish.parliament.uk.


Meetings and Events

The Commissioner has a number of meeting and engagements in his diary for June and July. Highlights include:

  • 1 June - Visit from Shri Jagadananda, the State Information Commissioner from the Indian state of Orissa
  • 5 June (AM) - FOI reference group event ? focusing on environmental information
  • 5 June (PM) - Centre for FOI seminar (see above)
  • 10 June - Presentation at Association of Chief Police Officers Conference, Southampton
  • 11 June - Presentation at FOI Live Conference, London
  • 9 July - Meeting with Jim Martin, newly-appointed Scottish Public Services Ombudsman


Publication Scheme Approvals

The Commissioner's staff are assessing publication schemes for local government, joint boards, police authorities and further and higher education institutions. In the approval process, the Commissioner's team have been focusing on ensuring that the range of information available under schemes is as wide as possible, while also ensuring that any charges for information, or restrictions placed on access, are reasonable and appropriate.

A number of schemes have been approved and are now in place, with the remainder, including all 32 local authority schemes, expected to be in place by 1 July 2009.

 
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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