News and Commentary from the Scottish Information Commissioner

Inform
Scottish Information Commissioner
July 2007

 
Commissioner's Welcome

Welcome to Inform, a new bi-monthly compendium of news and commentary from my office. Over the coming months Inform will provide regular updates on my work promoting and enforcing Scotland's freedom of information (FOI) legislation, including overviews of significant recent decisions, details of forthcoming events and activities, and updates on developments affecting Scotland's FOI community.

In this edition, I announce the launch of my new website, re-designed and re-developed to ensure that accessing information about FOI matters is easier than ever before. I also discuss below a recent decision which sets out in detail my views on the Freedom of Information (Scotland) Act 2002 (FOISA) exemption which covers information whose release may prejudice the effective conduct of public affairs. Also featured is a key decision on the application of FOISA's confidentiality exemption, which will have implications on the consideration of confidentiality clauses in contracts between suppliers and Scottish public authorities.

I hope you find this edition of Inform to be helpful and informative. Any comments or feedback would be welcomed at the address listed at the end of this newsletter.

Kevin Dunion
Scottish Information Commissioner

 
New Website

With nearly 116,000 hits so far this year alone my website is, without doubt, the single most important medium through which information about my work is communicated to the outside world.

I have stressed that the challenges set by the new freedom of information regime require a move from a culture of secrecy to one of openness. My role is not just about enforcing the law, but ensuring members of the public feel confident about their rights - and encouraging public authorities to go beyond compliance to become more open in all their dealings. The redesigned site has a particularly important role to play here. It will actively support this process, by helping all users of the Act - in whatever capacity - make the most of what it has to offer.

Some key features and benefits of the new site include:

  • signposting on the front page, to help members of the public and public authorities get to the parts of the site most relevant to them;
  • a 3-Step Guide to help individuals make information requests;
  • a response date calculator which indicates when a response will be due from a public authority;
  • improved facilities for searching my past decisions;
  • an expanded resource section for public authorities.

The new site went live on Thursday 5th July, and I would warmly welcome any feedback you may have. You'll find my full contact details listed at the end of this newsletter.

 

 
Website Quick Links

Regular users of my website may like to bookmark the following 'Quick Links', which will take you to straight to some of the most popular sections of the site.  Users should note that bookmarks or favourites from the previous site which have been stored may no longer work.

The Quick Links are as follows:

Frequently Asked Questions:                         www.itspublicknowledge.info/FAQs

Database of the Commissioner's Decisions:  www.itspublicknowledge.info/Decisions

News Releases:                                             www.itspublicknowledge.info/NewsReleases

The text of FOISA and the EIRs:                    www.itspublicknowledge.info/TheLaw

Your Rights, including the 3-Step Guide:      www.itspublicknowledge.info/YourRights

Commissioner's Diary of Events:                   www.itspublicknowledge.info/Diary

Exemptions Briefings:                                   www.itspublicknowledge.info/Briefings

 
Key Decisions Issued
Image of filing Cabinet with documents flying out of it

Decision 089/2007 Mr James Cannell and Historic Scotland

Advice to a minister concerning a listed building appeal

Mr Cannell asked Historic Scotland, a Scottish Executive agency, for a copy of advice given to a minister about a listed building appeal. Historic Scotland refused to disclose the information, arguing that its release would harm the effective conduct of public affairs.

It was argued that the public interest in non-disclosure was served by providing a secure environment in which officials can communicate frankly with ministers, and that the release of such advice was likely to deter officials from giving frank advice in future.

However, I did not accept the argument that all internal communications which express an opinion should be exempt, nor did I accept that there should automatically be a presumption of harm when considering the release of internal communications containing advice to ministers.

My view was that the main consideration in assessing this exemption was not whether the information constitutes advice, but rather whether the release of that specific information would deter officials from giving frank advice in future.

In this particular case I concluded that the release of the information would not substantially inhibit the provision of advice in future cases, and I therefore required Historic Scotland to release the information.

View the full text of Decision 089/2007



Decision 095/2007 Mr John B. Macintosh and Renfrewshire Council

Dispute over fees notice under the Environmental Information (Scotland) Regulations 2004

Mr Mackintosh requested copies of all information that Renfrewshire Council held on the Royal Ordnance Factory in Bishopton for 2004. The Council considered the information to be 'environmental' in nature, and, as a result, processed the request under the Environmental Information (Scotland) Regulations 2004 (the EIRs), which separately govern access to such information.

The Council issued a fees notice under the EIRs informing Mr Mackintosh that a fee had to be paid for the release of the information. Mr Mackintosh disputed this notice, and applied to me for a decision on whether it was valid.

The EIRs state that any such fee charged should be 'reasonable'. I took the view that if a public authority relies on the principles of the freedom of information charging regime (i.e. the first ?100 is not chargeable to the applicant) to calculate a fees notice under the EIRs, then the charges set are likely to be reasonable. In this case I found that the fees notice issued by the Council was not reasonable and therefore required the Council to reassess it.

I also found that the Council had breached the EIRs by not publishing a schedule of the fees it would charge for dealing with requests for environmental information.

View the full text of Decision 095/2007


Decision 079/2007 Kathleen Nutt and the Keeper of the Records of Scotland

File on Jock Stein and honours

Ms Nutt requested a file concerning the consideration of whether the late Jock Stein should have been awarded an honour. The Keeper responded by advising that the file was exempt from disclosure under the Freedom of Information (Scotland) Act 2002 (FOISA) exemption which deals with honours.

On investigation, I accepted that the information withheld did fall within the scope of the relevant exemption. Information withheld under this exemption would not normally be available for public consultation until 60 years from the last date on the file.

The key issue in determining the case however was the application of the public interest test. Given the vital place that football has in Scotland's popular culture, I accepted that there was a public interest in information that casts light on the decision not to award a knighthood Jock Stein, who was manager of the Scotland football team. Set against this, however, was the public interest in withholding the information - including the prospect of distress to Mr Stein's family.

Having reviewed the information, I was not persuaded that, in the specific circumstances of this case, the public interest in withholding the information outweighed that favouring disclosure.

The Keeper has now released the information to Ms Nutt.

View the full text of Decision 079/2007


Decision 088/2007 Mr Alan Keith, Chairman of the Association of Dumfries and Galloway Accommodation Providers and VisitScotland

Contracts between VisitScotland and visitscotland.com (eTourism Ltd)

Mr Keith requested copies of contracts between VisitScotland and eTourism Ltd. VisitScotland refused to disclose all but five of the contracts, claiming the information fell within a contractual confidentiality clause, and was therefore exempt from release. The FOISA confidentiality exemption allows information to be withheld in circumstances where it has been obtained from a third party, and its release would constitute an actionable breach of confidence.

After investigation, I decided that information in the contract did not constitute information provided by a third party to VisitScotland, and that the confidentiality exemption therefore did not apply.

I took the view that, when information contained within contracts is the product of negotiations between parties, it cannot normally be said that the concluded contract is information which has been obtained from another person. My decision follows a similar case heard by the Information Tribunal, which deals with appeals under UK FOI laws.

This decision has implications beyond this particular case ? essentially, a confidentiality clause in a contract with a public authority will not automatically exempt it from disclosure under FOISA. Only contents that can be demonstrated to have been provided by a third party can be subject to the confidentiality exemption.

View the full text of Decision 088/2007


 

Unless otherwise stated, the decisions listed above 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 receipt of the decision.

The full text of all decisions issued under Scotland's FOI legislation can be viewed on our new decisions database at www.itspublicknowledge.info/Decisions.

 

News in Brief
Pile of Newspapers

Office Update - May & June 2007

During May-June 2007 I received 74 new applications under FOISA and the EIRs.  In this period, I also closed 111 cases and issued 29 Decisions. 

My staff also responded to 214 enquiries on FOI matters from a variety of sources, from members of the public to representatives from public authorities, the media, and voluntary organisations.

 


Workshop with John Smith Fellows

Members of my team briefed the next generation of leaders from the former Soviet republics on the Scottish freedom of information regime. The group were participating in the John Smith Fellowship, established in memory of the late John Smith to provide promising young people with a new perspective on democratic practice and good governance. The session included a lively discussion, comparing FOI legislation and practices in Scotland and the group's respective countries.


Commissioner Addresses Cross Party Group

I was invited to address the Scottish Parliament's Cross Party Group on Malawi, on 27th June. At the session, I updated group members on recent developments in that country, specifically Malawi's Access to Information Bill. The proposed legislation in Malawi is progressive - there has been wide ranging consultation, and there are strong indications of cross party support. The Bill covers FOI, data protection and whistleblowing in the same piece of legislation.


A Culture of Openness: FOI moving into a new era

On Thursday 25th October, Holyrood Magazine holds its fifth Freedom of Information Conference, supported by my Office. The conference will examine how we foster a more open society, where access to information is 'business as usual'. Public authorities have responded well to the Act ? how can they progress from compliance to effect a true change in their culture? The conference will also look at issues around extending coverage of the Act. Book the date in your dairy now.


Court of Session Update

At a hearing on 3 July 2007, the Court of Session dismissed an appeal by the applicant against Decision 046/2006 Mr James Bell and Central Scotland Fire Board. The Court found that grounds of the appeal were not competent, on the basis that they did not raise any relevant point of law.

A separate appeal by the applicant against Decision 017/2007 Mr John Rush and Fife Council has also been sisted.

 

 
Contact Us
Photograph 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 new website, or on Inform itself.  Contact us at:

Scottish Information Commissioner, Kinburn Castle, Doubledykes Road, St Andrews, KY16 9DS

Telephone:    01334 464610

Email:            enquiries@itspublicknowledge.info

Fax:               01334 464611

 

 
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