News and Commentary from the Scottish Information Commissioner

News & Commentary from the Scottish Information Commissioner

November/December 2009

 

This edition is published in the run-up to the Annual FOI Conference - which will take place on 8 December in Edinburgh. I report on the work of my Office in raising awareness and understanding of the right to access environmental information from Scottish public authorities. I report on the most recent seminars at the Centre for FOI and the Court of Session decision in the case of Glasgow City Council and Dundee City Council v Scottish Information Commissioner.

Head and shoulder Image of Kevin Dunion

Commissioner's Commentary

I am going to use my commentary this month to highlight the work I have been doing to promote awareness and understanding of the Environmental Information (Scotland) Regulations 2004 (the EIRs). These regulations sit alongside Scotland's FOI Act and separately govern access to the environmental information held by Scottish public authorities. Unlike the legal framework for accessing other information from Scottish public authorities (through an Act of the Scottish Parliament), the EIRs derive ultimately from the Aarhus Convention, more technically known as the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. The Aarhus Convention recognises every person's right to a healthy environment and seeks to ensure that individuals, of present and of future generations, live in an environment adequate for their health and wellbeing.

The Aarhus Convention, signed by the UK in 1998,led to a new EC Directive on access to environmental information. Although we have had environmental regulations in the UK since 1992, these were replaced with new regulations in 2004, to reflect the provisions of the Aarhus Convention. The EIRs give rights of access to environmental information held by Scottish public authorities. They came into force on 1 January 2005, with the Freedom of Information (Scotland) Act 2002 (FOISA), and cover any information that is considered to be environmental information. It is fair to say that in the early days of freedom of information in Scotland, FOISA overshadowed the EIRs and most authorities dealt with requests under FOISA rather than the EIRs; certainly the vast majority of applications to me related to FOISA rather than the EIRs. In many cases I found that authorities had incorrectly applied FOISA where they should have applied the EIRs. Not only is it important to follow the correct legal framework, but there are critical differences in the provisions which become apparent when authorities refuse to release information. However, as we near the fifth anniversary of FOISA and the EIRs, we see more authorities referring to the EIRs when dealing with requests for information.

The right to access environmental information is to ensure 'that members of the public can understand what is happening in the environment around them? and that the public is able to participate in an informed manner'. The UN Secretary?General described the Convention as an ambitious venture in environmental democracy. The Aarhus Convention has three pillars which form the key principles behind the Convention ? the right to know, the right to participate and the right of access to justice.

Access to Information is the first pillar and forms the basis of the EIRs, and is a pre-cursor to the other pillars, as effective participation in decision making needs full, accurate and up-to-date information. A public that is well-informed has much to offer the decision-making process by contributing a wide range of opinions and views.

I am therefore delighted to announce the publication of my Guidance on the Environmental Information (Scotland) Regulations 2004. This Guidance is to assist Scottish public authorities in their handling of requests under the EIRs. It is important for authorities and the public to understand the difference between environmental information, which falls within the scope of the EIRs, personal data, which falls under the Data Protection Act 1998, and all other information in order to deal with requests appropriately. For this reason, my Guidance aims to provide an understanding of what constitutes environmental information and which bodies are covered by the EIRs. It explains how a public authority should handle a request for environmental information and there is a chapter on the exceptions ? i.e. the limited reasons when a public authority can withhold information, subject to the public interest test. The Guidance includes an Environmental Information Process Flowchart, created to help authorities decide how to deal with information requests, and concludes with a list of the key differences between FOISA and the EIRs. The Guidance is fully referenced to the decisions I have issued which interpret the EIRs. To assist online users of my website, there has been added the facility within the decisions data-base to search for decisions by specific environmental regulation.

I am most grateful for contributions to the Guidance from interested organisations and individuals. It was also informed by the excellent discussion at the recent Centre for Freedom of Information seminar on environmental information (see below). This Guidance has been a substantial piece of work by my Office and I hope it will benefit both public authorities and users of the EIRs.

This Guidance is available on my website at www.itspublicknowledge.info

 Kevin Dunion's Signature

Kevin Dunion, Scottish Information Commissioner

 
Annual FOI Conference

Annual FOI Conference

The 7th Annual FOI Conference, organised by Holyrood Conferences, will take place on 8 December 2009 at the Roxburghe Hotel, Edinburgh. This year, the plenary sessions will explore what's next for FOI in Scotland, and whether 'FOI for all' is a realistic aspiration. Keynote speakers include the Commissioner, Minister for Parliamentary Business Bruce Crawford MSP, and Lord Wallace of Tankerness, who introduced the FOI Bill when he was Deputy First Minister.

The conference will also be addressed by practitioners and legal professionals experienced in using FOI and campaigning for openness and transparency: these include BBC Scotland Health Correspondent Eleanor Bradford, Francis Irving from WhatDoTheyKnow.com and Fiona Killen, Partner at Anderson Strathern. In response to feedback from previous conferences, this year there will be a series of four masterclasses to provide practical tips for FOI practitioners and campaigners. The conference aims to have a wide appeal, but will be of interest to those who are FOI or DP practitioners, from a voluntary sector or campaign body interested in using their rights, policy-makers, members of the legal profession or academics.

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At a glance - September and October 2009
 New applications received:  75
 Enquiries responded to:  233
 Cases closed - decision notice:  29
 Cases otherwise closed:  18

 

 
Autumn seminar series at Centre for FOI

Logo for Centre for Freedom of Information

The autumn seminar series of the Centre for Freedom of Information continued on 22 October with a successful seminar on Access to Environmental Law. The keynote speaker was Dr ?ine Ryall, Senior Lecturer at the Faculty of Law of University College Cork. Dr Ryall delivered a paper which examined Access to Environmental Information in terms of International, European Community and Irish legislation. Colin Reid, Professor of Environmental Law at Dundee Law School, responded with a talk on the differences between FOISA and the Environmental Information (Scotland) Regulations 2004 (EIRs).

Following those presentations, the Commissioner shared a discussion platform with Dr Ryall, Emma Welsh (Glasgow City Council), Jennifer Ryles (Scottish Natural Heritage) and Guy Linley-Adams (Fish Legal, formerly the Anglers' Conservation Association). Emma and Jennifer regularly advise their respective authorities on responding to requests for environmental information, whilst Guy is a regular user of the EIRs, requesting information from regulators and statutory bodies about farmed fish escapes, control of disease and parasites on fish-farms, as well as the more 'traditional' pollution incidents in Scotland

The autumn seminar series concluded on 26 November 2009 with a seminar entitled Policing, the Public Interest and FOI. The keynote speaker at this event was David Goldberg, lecturer in law and former co-Convener of the Campaign for Freedom of Information. David spoke on FOI and Policing: the Scottish Experience. Responses were provided by Chief Inspector Donald Thomson (Association of Chief Police Officers in Scotland, ACPOS) who spoke about the police experience of FOI and Alastair Graham (Grampian Police) who discussed balancing the public interest. There followed a question and answer session involving the audience and a panel (of the three speakers, Kirsty McGowan of the Crown Office and Professor Fiona Raitt (University of Dundee).

The Centre for Freedom of Information was established in February 2009 as a joint venture between The School of Law, University of Dundee and the Scottish Information Commissioner. Its aim is to provide conceptual space to reflect on and discuss current FOI issues and practice. For further information about the Centre and future Freedom of Information events, visit Centre for Freedom of Information

Speeches from previous events are also available to download at this site.

 
News in brief

Court of Session decision

The Court of Session recently issued its Opinion in the case of Glasgow City Council and Dundee City Council v Scottish Information Commissioner. The Opinion addresses a number of issues which are important to the everyday running of freedom of information in Scotland. For example, the Opinion highlighted the importance of information requests being clearly stated so that the public authority understands what information the applicant wants ? a request which is not clear will not be valid. The Opinion also addressed the question of whether FOISA was 'applicant blind' and stressed that there were occasions where the identity of the applicant was crucial to how the request would be dealt with. This also meant that any request which did not name the 'true applicant' is also invalid.

However, what is very noticeable from the Opinion is the weight the Court of Session gives to the duty set out in FOISA to provide advice and assistance to people who either have made an information request or who want to make a request. This underlines that if requests are technically invalid, it's up to the public authority to advise the applicant what to do in order to make the request valid.

The Opinion also highlighted that FOISA provides a right to information, not to documents. So, although a request might be for a copy of a letter, there is no right to receive an actual copy of the letter, only the information contained in the letter. Of course, in many cases, public authorities will continue to supply copies of documents, because that will be the most straightforward thing to do.

The Commissioner will soon be publishing practice guidance for both applicants and public authorities to address the issues raised by the Court of Session.

Awareness research report now published

The seventh wave of the Commissioner's annual awareness tracking research, reports that public awareness of FOISA has remained high (at 76% - a 32% increase since the tracking research began in 2004). The 2009 study, by Progressive Scottish Opinion, provides interesting reading and emphasises that work still needs to be done to inform people of their rights to access information. Although awareness of FOISA remains high, there is a significant decrease in the understanding of it i.e. that it is a right to access general information from Scottish public authorities. We see other findings ? that men are twice as likely to have made an information request as women, that uncertainty over FOI rights is highest amongst over 65 year olds, and that overall awareness of FOISA is much lower among disabled people. This 2009 study reinforces the findings of the 2008 awareness research that the public remain committed to the  extension of FOI. As in 2008, the study finds at least two thirds of the Scottish population favour extending Scotland's FOI laws to cover bodies such as housing associations, leisure trusts, PPP/PFI projects and private prisons. The research is published on the Commissioner's website. 

Other News

Society for Scotland Specialist Accreditation in Freedom of Information and Data Protection has been approved by the Professional Practice Committee. This Committee is now seeking to appoint Members of an Accreditation Panel for this Specialism and is inviting an application from any party who wishes to be considered for appointment. Applicants who wish to be considered must be able to demonstrate expertise gained from practise or other involvement, whether or not as solicitors, in this Specialism. The deadline for the submission of applications is 16 December 2009. More information is available from the Law Society's website at Law Society for Scotland

The Commissioner has provided comments to the Scottish Government FOI Unit which has been reviewing and merging the section 60 and section 62 Codes of Practice (guidance to public authorities on the discharge of functions under FOISA and the EIRs). It is anticipated that the new single Code will be published for consultation shortly.

Three assessment reports have now been published on the Commissioner's website, four further reports will be published soon. A further seven assessments are planned before the end of the financial year.

Model schemes for health boards and community health practitioners are being developed by representative organisations for approval in May 2010.

 
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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