News and Commentary from the Scottish Information Commissioner

News and Commentary from the Scottish Information Commissioner

September / October 2010

 

In this issue we report on a recent event exploring the experiences of those who have used FOI, announce a consultation on proposals to revise the approach to the proactive publication of information by authorities, and reveal details of important forthcoming events in the FOI calendar.

Kevin Dunion

There is a view that is occasionally voiced - most recently by former Prime Minister Tony Blair in his newly-published memoirs - that suggests freedom of information (FOI) is predominantly used by journalists, and that the public have failed to make use of the right to information in any significant way. This is not, however, a view which chimes with my own experience. Indeed, since FOI came into force in 2005, it is not journalists but members of the public who have consistently accounted for the highest proportion of appeals to my office, with 73% of appeals received in 2009 coming from this group, compared to only 13% from the media.

The use of FOI by individuals, community organisations and campaigners was a key feature of my recent public event at the Scottish Parliament's Festival of Politics. This event brought together a range of people who have actively used Scotland's FOI laws and who have achieved significant successes as a result. Participants included Michelle Stewart of the C Diff Justice Group, Bill Scott from the disabled persons' organisation Inclusion Scotland and Sandy Longmuir, founder of the Scottish Rural Schools Network. Each discussed how FOI has enabled them to access important information which would almost certainly have been inaccessible prior to 2005 - information which has gone on to play a pivotal role in their wider campaigning activity.

Quote from Bill Scott, Inclusion Scotland 'FOI opened up facts and figures that we couldn't have got any other way'

For Michelle, the information released through FOI helped to raise the profile of her campaign, and helped to make the case for a public inquiry into the 18 deaths at the Vale of Leven Hospital in 2007/8. For Bill, FOI was used to gather previously inaccessible data about the quality of housing for people with disabilities - data which subsequently lead to the development of new government guidance for local authorities.

Sandy, meanwhile, spoke about how FOI has helped parents mount successful campaigns against rural school closures, allowing access to information which has demonstrated that the case for closure was often flawed. Sandy also explained how information released through FOI has helped his group successfully campaign for a change in the law.

Each of the speakers spoke passionately about the impact that FOI has had for them, and their belief that, without it, the outcomes would almost certainly have been very different. It is extremely important that testimonies such as these are heard if the impact of FOI is to be properly considered. With this in mind, I am very happy to report that recordings of this event are available to download from my website.

While it is certainly the case that it is journalists' use of FOI that will commonly grab the headlines - and that requests made by journalists may frequently be those that require the most careful consideration by authorities, or seek access to the information which authorities may prefer not to see disclosed - we must remember that these represent only one part of Scotland's true FOI picture. And while I recognise that, in the eyes of officials and politicians, the use of FOI by journalists appears only to generate negative headlines, it is also the case that it leads to many reports which are in the public interest - on issues such as healthcare, crime and public expenditure.

It is important to remind ourselves that the right to information is being actively used by a range of people across Scotland, empowering individuals and helping to bring about change for communities. FOI may be uncomfortable for those - like Mr Blair - who have only ever experienced it from inside government, but it is an extremely important right for those outside of power.

You can listen to recordings of all the presentations from 'Freedom of Information - what difference has it made?' on my website at: www.itspublicknowledge.info/FestivalOfPolitics


A fresh approach to publication schemes

On 7 September, I launched a formal consultation on proposals to revise the approach to FOI publication schemes in Scotland. Under FOI, of course, every Scottish public authority is obliged to produce a publication scheme - the document that sets out the types of information that the authority commits to routinely publish.

This new consultation seeks views on my plans to build on best practice in publication scheme delivery, through the development of one single model scheme to be used by all Scottish public authorities. In doing so, I aim to encourage authorities to publish more information, while also simplifying schemes for the public. The revised approach will also allow me to shift my own resources away from approving individual authority schemes - a time-consuming and laborious process for all parties involved - to instead focus on actively assessing whether authorities are fulfilling their obligations and publishing information for the public in accordance with the scheme.

I am seeking as wide a range of views as possible on these new proposals - will they bring efficiencies for public authorities? Will they improve public access to public authority information?

I would urge all Inform readers to take the time to review the consultation paper and share your own views on these important proposals.

The publication scheme proposals are available at: www.itspublicknowledge.info/PSConsultation

 

 
At a Glance - July and August 2010
 New applications received:

 77

 Enquiries responded to:

 279

 Cases closed - Decision Notice:

 42

 Cases otherwise closed:

 39

 
Key decisions issued
Files flying out of a cabinet

1000th Decision

Freedom of information in Scotland reached an important landmark in July, when the Commissioner published his 1000th decision under the legislation. The case in question - detailed in Decision 129/2010 Mr Tom Gordon and the Scottish Ministers - concerned a request for information about the costs and administrative arrangements for the first five meetings of the Council of Economic Advisors, the group of economists and industry figures that advises the Scottish Government on economic affairs.

In his decision, the Commissioner found that the Ministers had failed to put forward an appropriate justification for not disclosing information, while also failing to confirm to him that officials had appropriately searched for all relevant information. As a result, he ordered the release of the information, while also requiring the Ministers to undertake further searches for relevant information.

The 1000th decision underlines the importance of authorities presenting clear and well-reasoned arguments for the non-disclosure of information - where this is not provided, the Commissioner will, as in this case, require disclosure.


When is a request vexatious?

Under FOI, public authorities can refuse requests that are 'vexatious'. The Commissioner's general approach is that a request is vexatious where it would impose a significant burden on the public authority and:

  • it does not have a serious purpose or value; and/or
  • it is designed to cause disruption or annoyance to the public authority; and/or
  • it has the effect of harassing the public authority; and/or
  • it would otherwise, in the opinion of a reasonable person, be considered to be manifestly unreasonable or disproportionate.

Two recent cases highlight some of the considerations when assessing whether a request is vexatious.

In Decision 123/2010 Eriskay Pony Mother Studbook Society and the Scottish Ministers the Commissioner accepted that a request from the Society was vexatious. Although that request alone would not cause a significant burden on the Ministers, the Commissioner recognised that it was made in the context of a prolonged series of correspondence and information requests on the same issue. The Commissioner accepted that, in this context, the request imposed a significant burden. He also found that the request appeared to serve no purpose other than to extend the dialogue on a matter on which the Ministers had taken significant, though unsuccessful, steps to resolve. In this context, he found that (whether intended or otherwise) the effect of the request was to harass the Ministers.

In Decision 108/2010 Mr Mark Irvine and South Lanarkshire Council Mr Irvine requested a range of information regarding the Council's job evaluation scheme. The Council maintained that, had the requests been made by another person, it would not have been considered as 'vexatious'. However, it argued that Mr Irvine was involved in a campaign against it concerning equal pay claims. The Council contended that Mr Irvine was using the FOI legislation to 'vex' it in relation to these claims, rather than to obtain information. Having carefully considered these arguments, the Commissioner concluded that the Council had wrongly asserted that his request was vexatious. He did not accept that the request would impose a significant burden, nor that any of the other considerations listed above applied in this particular case.

Readers may be interested in a forthcoming Centre for FOI seminar 'Dealing with vexatious requests', which is planned for 17 November. More details will be available at www.centrefoi.org.uk shortly.

 

 
News in brief
Pile of Newspapers

New developments in FOI
The Centre for FOI's Autumn Seminar Series will launch on Thursday 21 October with a seminar exploring 'New Developments in FOI'. Speakers at the Dundee seminar will include:

  • Zoe Woods, Head of FOI Unit, Scottish Government, on the current policy priorities of the Scottish Government;
  • William Malcolm, Solicitor, Pinsent Masons, on key learning points for Scottish public authorities from selected FOI appeal rulings;
  • Daradjeet Jagpal, Solicitor, Harper Macleod, on the tests to establish whether a body is covered by the Environmental Information (Scotland) Regulations.

For further information on this and other forthcoming centre events, visit www.centrefoi.org.uk.


Annual FOI Conference
This year's Holyrood FOI conference will take place on Wednesday 15 December in Edinburgh. A particular focus of this year's conference will be the impact of public sector budget cuts on the delivery of FOI. Confirmed speakers for the conference so far include:

  • Bruce Crawford MSP, Minister for Parliamentary Business, The Scottish Government
  • Lord Tom McNally, Minister of State for Justice, UK Government
  • Kevin Dunion, Scottish Information Commissioner
  • Emily O'Reilly, the Irish Ombudsman and Information Commissioner.

There will also be a number of practical CPD-related workshops again this year. For more information visit http://foi.holyrood.com.


Publication Scheme updated
The Commissioner has revised and updated his own publication scheme. The revised scheme makes our published information easier to access, and includes new 'guides to information' under each class.

It is available online at www.itspublicknowledge.info/home/SICPublicationScheme.


Revised briefings
We are currently revising all of the exemptions briefings. Briefings are being revised to reflect changes in practice and important decisions which have been issued. The new briefings will be published shortly.


Website updates
The Commissioner's decisions database is also being revamped to introduce greater flexibility for users. New features will include the ability to search the actual content of decisions (as opposed to just the top-level descriptions), and to view summaries of the decisions on the search results screen. These enhancements should go live shortly.

In addition, focus groups are being planned with public authorities and the public to explore how the site can be improved and evolved to meet users' needs. If you are interested in contributing, please contact Sue Gray on sgray@itspublicknowledge.info, or telephone 01334 464610.


FOI extension
Finally, a brief reminder that the Scottish Government is consulting on the extension of FOI to cover a number of additional bodies. The consultation period ends on 2 November 2010, and we would urge all those interested to respond.

Further information is available from: www.scotland.gov.uk/About/FOI/Coverage

 

 
Contact us
Group photo of Commissioner's staff in 2010 standing on staircase.
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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