News and Commentary from the Scottish Information Commissioner

Inform - News and Commentary from the Scottish Information Commissioner

November/December 2007

 

Welcome to the last edition of Inform for 2007.  The last few months have been a busy time, with the fifth annual Holyrood FOI Conference a great success, new research findings throwing light on how FOI legislation is working in Scotland today, and some key decisions which reflect my current thinking in critical areas.

Kevin Dunion

Commissioner's Commentary

The fifth Annual Holyrood FOI Conference, 'A culture of openness: Freedom of Information moving into a new era', which was held in October, gave me the chance to reflect on my first five years in office.  I was able to report over 1,500 applications, resulting in over 550 decisions and the ordered release of much information into the public domain which may never have seen the light of day without FOISA ? surgical mortality rates, sex offenders statistics, and a major PFI contract to name but a few.  I was able to congratulate public authorities for the determination they have shown in making Scotland's new FOI legislation a success, and encourage them to move beyond compliance to a new culture of openness.

I was also delighted to hear Bruce Crawford, the Minister with responsibility for FOI, reaffirm the commitment of the Scottish Government to this new culture in Scotland.  I took the opportunity at the conference to highlight the need to protect the FOI rights of people, where they are at risk of being lost when public services are operated by private or charitable bodies.  For example, when council houses are transferred to a housing authority, tenants lose their FOI rights at a stroke.  And PFI contracts, representing millions of pounds of public money and running into thousands of pages, can be difficult for taxpayers to access.

There may be measures that could be considered to ensure that public rights are protected.  For example, new leisure trusts can be set up as wholly owned public companies, which preserves FOI rights (as has happened with Glasgow City Council, to their credit).  Public/private partnerships can ensure PFI contracts clearly identify commercially sensitive information, for example by putting it into a separate schedule.

I believe it is also important to review which bodies are covered by freedom of information laws, and take steps to ensure that information rights 'follow the money' where large sums of public spending are concerned.  The Ministry of Justice has just recently commenced a public consultation, looking at extending the FOI Act in England and Wales to cover private organisations where they are delivering services of a public nature, and I will watch this with interest.

Read Holyrood's conference report here.

Research findings make positive reading

September saw the publication of research by the University of St Andrews and Caledonian Business School 'The Freedom of Information (Scotland) Act 2002: New Modes of Information Management in Scottish Public Sector Bodies'.  I commissioned this research to provide an independent insight into how public authorities were responding to FOI laws two years after full implementation.  The study found solid evidence of public authorities working hard to meet their obligations and that there had been organisational change within many to support compliance with the legislation: 89% of authorities reported that their organisations were now more transparent as a direct result of the legislation.  74% felt that their records management has improved as a consequence of the Act.

However the study also identified less positive experiences, particularly around the challenge of meeting the 20 working day response timescales and perceived 'abuses' of the Act, particularly by some journalists.  There was also some evidence of authorities developing practices to 'manage' the release of sensitive information.

In October, we also published the latest in our annual series of public awareness surveys.  74% of respondents were aware of FOISA ? the highest proportion yet.  The general public clearly feel that authorities are embracing FOI ? 69% felt that more information was available than ever before, and 69% felt Scottish bodies were more open and accountable than their UK counterparts.  However, I remain concerned that awareness may be lower amongst those groups who may well have most cause to use FOI rights ? such as young people, the elderly and those with disabilities.  We need to ensure that all groups in society are fully aware of their rights.

As a result of FOISA, public authorities are becoming more open and accountable.

Graph showing that 63% of the population believe FOI is making authorities more open

Read the full Public Awareness Research Report 2007.

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

 

Decision 174/2007 Mr Raphael-Beldowski and the Chief Constable of Tayside Police

Since the Act came into force in 2005 I have considered around 40 cases where the applicant has sought access to information gathered as part of a police investigation.  This is the first time that I have concluded that such information should be released. FOISA exempts information where it has been held for the purpose of a police investigation ? but authorities are required to consider the public interest in release before deciding whether the information should be withheld.  Information should be withheld only if the public interest in non-disclosure outweighs that in release.

When considering cases of this type in the past, I have overwhelmingly concluded that the balance of the public interest favours non-disclosure, frequently because the release of such sensitive information may prejudice an ongoing investigation, or may inhibit witnesses from participating in future investigations.  The specific circumstances of this case led me to conclude that, in this case, public interest considerations favoured release.  A crucial factor was the effect of the passage of time - the case in question dates from 1912 - and no living person could stand trial for the murder.  In addition few, if any, witnesses to the crime would still be living, and Tayside Police indicated, not surprisingly, that it is highly unlikely that the case will be reopened.  I therefore required that the information be released to Mr Raphael-Beldowski.


Decision 165/2007 Mr S and the City of Edinburgh Council

Mr S's application also represented another first ? the first time that I have accepted the Human Rights Act to be a prohibition on disclosure.  Mr S had requested copies of his late mother's social work file from the Council.  On investigation, I found that information in the file was exempt under section 26(a) ie release would breach Article 8 of the European Convention on Human Rights; and that release of much of the information in the file was exempt under section 36(2) ie disclosure would constitute an actionable breach of confidence.  Consequently, I upheld the Council's decision to withhold the information from Mr S.


Decision 190/2007 Ms May Docherty and Lothian NHS Board

Following consideration of Ms Docherty's case, I required NHS Lothian to disclose its full contract with Consort Healthcare for the provision of building, maintenance and support services for the new Royal Infirmary of Edinburgh.  This decision demonstrated the importance of authorities presenting a well-argued case for non-disclosure.

NHS Lothian had sought to withhold the information on the grounds that the entire contract fell within the scope of a confidentiality clause.  Throughout the course of a lengthy investigation, however, NHS Lothian comprehensively failed to make an appropriate case for the application of FOISA's confidentiality exemption, despite the serving of two formal information notices which expressly sought such submissions.  Worryingly, NHS Lothian also failed to identify over 5,000 pages of the contract which fell within the scope of Ms Docherty's request until the closing stages of the investigation.

As a consequence of NHS Lothian's failure to present an appropriate case for the application of any FOISA exemption, I had no alternative but to require the release of the entire contract.

 

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 the link below:

 Scottish Information Commissioner decisions

 

At a glance - Case Statistics for September and October 2007
New Applications received:

 73

 Enquiries responded to:

 193

 Cases closed:

 95

 Decisions issued:

 52

 
News in Brief
PileOfNewspapers

UK and Scottish Commissioners Meet

I met with Richard Thomas, the Information Commissioner, last month.   Among the issues discussed was the new guidance issued by the ICO on the definition of personal data and how that affects applications being considered in Scotland.  Discussions also took place on procedures for dealing with applications for environmental information, and what powers the Commissioners had to issue decisions where requests for environmental information had wrongly been dealt with under freedom of information legislation.


Commissioner addresses International Conference

I travelled to New Zealand last month, to address the fifth International Conference of Information Commissioners.  Addressing 150 delegates including Commissioners and Ombudsmen from countries across the globe, I reflected on how to design an effective oversight body, sharing Scotland's experiences and my personal insight.  Other speakers included the UK and Irish Information Commissioners, and the Speaker of the New Zealand House of Representatives.


Visit from Friends of the Earth

On 12 November, the Head of Legal for Friends of the Earth came to my offices to address staff and guests.  Phil Michaels has been an active 'right to know' campaigner for five years.  He talked about what constitutes environmental information, and which private bodies he thinks are covered by the Environmental Information Regulations (Scotland) 2004.  He reflected on how the Information Commissioners ? both sides of the border ? have responded to the legislation.


MSPs and Staff ? a reminder

I will be visiting the Scottish Parliament on 16 January at 5.15pm, to speak at a joint event with the Scottish Parliament Corporate Body.  This event aims to help MSPs learn about their obligations under FOISA, but also to see it as a tool which can help them support their constituents.  An invitation will be sent to MSPs shortly.

 
Public Bodies Discuss Research
Photograph of speaker and audience at Research Conference 2007

I sponsored a seminar in November to discuss the findings of our recent research into the information management practices of public authorities in more depth, with 27 representatives of public sector organisations across Scotland.  The event identified many more examples of both good practice and areas for improvement.  A report of the event has been provided to participants and can be accessed on my website here.  The research and seminar findings will inform further work next year and beyond.

 
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 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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