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