249 cases were closed with the issue of a formal decision in 2010. The tabs below explore the issues and experiences that arose during the consideration of some of these cases.
The Commissioner's caseload involved requests for information on a wide range of issues. Alongside this, there is an enormous range of possible variables of cases: the subject of the information requested; the format in which it was requested; the cost of providing the information; the wording of the request; the number of exemptions that have been cited where the public interest lies; etc. The more variables involved in a case, the more complex it is likely to be.
2010 saw a number of particularly complex cases reach their conclusion.
Assessing the public interest
Following one of the most extensive investigations to date, the Commissioner issued his decision on a case brought by the family of Shirley McKie, who were dissatisfied with the response to requests for information made to the Scottish Government. Ms McKie is a former police officer who, as a result of fingerprint evidence, was wrongly accused of perjury. A public inquiry into the case is ongoing at time of publication of this report.
The Commissioner's investigation into this case was particularly complex, involving information contained in over 630 individual documents, and the consideration of ten separate FOI exemptions that had been applied by the authority. Following his investigation, the Commissioner ordered the release of new information from 131 of the documents.
The case involved careful consideration of the public interest arguments around the release of the information. While the balance of the public interest favoured the release of some information, the Commissioner also found that it supported the non-disclosure of information in circumstances where the release may have harmed the administration of justice. The Commissioner noted, however, that, had he found evidence of wrongdoing by the authority, the public interest outcomes in this regard may well have been different.
The first appeal
The first appeal made to the Commissioner following the introduction of FOI in 2005 has also proved to be the most protracted. The Commissioner issued his first decision on the case - which involved a request for information on the incidence of childhood leukaemia in Dumfries and Galloway - in August 2005. This decision required the Common Services Agency for the Scottish Health Service (the CSA) to release statistical information in a format which disguised the identity of individual children.
The CSA appealed the case to the Court of Session, but the Court did not accept that the statistics could potentially identify individual children and so the Commissioner's decision was upheld. The CSA then made a further appeal to the House of Lords which, in its ruling, remitted the case back to the Commissioner for further investigation.
In his new decision, issued in May 2010, the Commissioner concluded that the statistics requested are sensitive personal data and are exempt from release. He directed the CSA, however, to provide Mr Collie with the statistics in a form that does not lead to identification i.e. aggregated for the whole of Dumfries and Galloway.
An ongoing release
In some complex cases, the gradual release of information to the requester may also be a feature. One 2010 decision saw this happen in relation to the largest volume of documents considered in a single application. The case, which concerned information held by the Scottish Government relating to sites identified for a potential nuclear waste disposal repository, involved over 1,100 individual documents and, as in the McKie case above, multiple exemptions had been applied.
During the investigation, the Commissioner's staff worked with the requester and the authority to resolve matters informally as far as possible. For example, the volume of documents was reduced by identifying duplicate information. The authority also agreed to the Commissioner sharing summaries of the withheld information with the applicant so he could identify the specific files which were of interest to him, thus further reducing the number of documents under active investigation to 297.
The authority subsequently agreed to the disclosure of a significant volume of this information – in all, 260 previously withheld documents were released during the investigation. At the end of this process, the Commissioner's decision focused on the remaining 30 documents. In the decision, the Commissioner upheld the authority's reliance on exceptions in the Environmental Information (Scotland) Regulations as grounds for withholding the final part of the information.
The media experience
Some authorities, and particularly central government and the police, report that a high proportion of their FOI requests are made by the media. From our own experience, it seems that only a small number of these go on to become applications to the Commissioner. The reasons for this are not known, though the time-pressured environment in which journalists work may well be a factor – the information may be relevant only to a current story.
However, FOI continues to be valuable to journalists, particularly where they need to unlock information to match with research they have already gathered.
Applications from the media represent only a small proportion of the Commissioner's overall caseload, but the FOI experience of the media can often be different to that of other applicants. Media applications, for example, are less likely to 'settle' than other groups – i.e. where the Commissioner's staff succeed in working with both parties to informally resolve a case. 25% of 2005-2010 media applications were resolved in this way, compared to 34% of all applications.
An application from a member of the media is also more likely to result in a decision either in favour of the applicant or partially upheld than an application from any other group. Over the period 2005 to 2010, 26% of media applications resulted in a decision in favour of the public authority, compared with 39% of all applications.
Decisions issued in 2010 where the Commissioner has required the release of some, or all, of the information requested to a requester from the media have included:
- Payments to a chauffeur company by the Water Industry Commission
- Board minutes of Transport Scotland
- Travel and accommodation costs for the Council of Economic Advisers
- Information on the Scottish Government's commitment to increasing the number of police officers
- The total amount of money that NHS Lothian was trying to recoup following wrongful payments to dentists
- Information about possible sites for the location of a nuclear waste repository
Many of the stories relating to this information have already been published; others may be yet to come.
The appeals to the Commissioner are, however, only a small snapshot of the media's use of FOI. Rarely is there a day that the Scottish press or broadcast news does not feature a story generated by a freedom of information request. Journalists have played a significant role in Scotland's FOI story, not just by using the freedom of information right themselves, but also by demonstrating to the public how they can go on to make use of FOI in their own lives.
Alongside the right to request information, the FOI Act contains provisions which allow authorities to refuse requests in certain circumstances. One of these allows authorities to refuse to respond to requests which are 'vexatious'.
The FOI Act makes clear that it is the request and not the requester which must be vexatious. It does not, however, provide a definition of the term.
To assist with this, the Commissioner published a briefing in 2008, which set out his approach to assessing whether a request is vexatious. For a request to be vexatious, it must generally meet a two-part test.
Firstly, it must be clear that the request would impose a significant burden on an authority. Secondly, it must be clear that one or more of the following apply:
- it does not have a serious purpose or value;
- it is designed to cause disruption or annoyance to the authority;
- it has the effect of harassing the public authority;
- it would (otherwise, in the opinion of a reasonable person) be considered to be manifestly unreasonable or disproportionate.
To date, the Commissioner has received relatively few applications in relation to this provision. This may be because Scottish public authorities have generally been reluctant to label requests as vexatious (e.g. no-one likes to tell someone that this is what they think of their request).
In 2010, however, and for the first time, there was a small but noticeable increase in decisions involving this provision. These decisions reflect and amplify the points made in the Commissioner's guidance:
Requests which have no purpose or value other than to reopen a matter which the authority has already taken adequate steps to resolve may be vexatious:
In Decision 123/2010, the Commissioner upheld the Scottish Ministers' refusal to deal with a request from the Eriskay Pony Mother Studbook Society for information about its dispute with a similar group. The Ministers had tried on multiple occasions to assist the two organisations to resolve their disagreement. The request was one of many repeated requests over time for similar information, and the Commissioner agreed, in this case, that the purpose of the request was vexatious.
The Commissioner applied the same reasoning in a decision involving the Accountant in Bankruptcy's refusal to respond to a request, the intention of which appeared to be solely to reopen an old dispute between the requester and the authority.
The impact of large volumes of requests imposes a significant burden:
In a case involving Scottish Water, the Commissioner found that it is possible for the volume and nature of requests to impose a significant burden on an authority, particularly where large numbers are received in rapid succession. In this case, the Commissioner concluded that responding to sixty separate requests received would involve the diversion of significant resources, at the expense of the authority's wider functions and responsibilities.
Authorities should exercise caution in construing the purpose of a request:
Authorities must be careful when applying the 'vexatious' provision, however, as inappropriate use will be overturned by the Commissioner. In Decision 108/2010 the Commissioner found against South Lanarkshire Council's determination that a group of requests made by a campaigner were vexatious.
The requester, Mark Irvine, is supporting equal pay claims against the Council, and requested a range of information about the Council's job evaluation scheme. The authority argued that, while Mr Irvine's requests might not appear to be vexatious at face value, the fact that the requests came from Mr Irvine and the context in which they were made (his equal pay activities and, in particular, his use of information about the Council on his blog) meant that they should be viewed as being designed to cause disruption or annoyance, rather than to access information. The Commissioner, however, concluded that there was insufficient evidence to draw this conclusion about the motivation of the request. He did not find that the request was vexatious on any of the other grounds argued by the Council, and required the authority to respond to the request under the terms of the FOI Act.
In addition to the FOI Act, the Commissioner is also responsible for enforcing the Environmental Information (Scotland) Regulations 2004 (the EIRs). The EIRs sit alongside FOI, but provide a separate right of access to the environmental information held by public authorities and other bodies.
An increasing proportion of applications in 2010 were made in relation to the EIRs, while 31 (12%) of the Commissioner's decisions also related to requests for environmental information.
A unique right
While EIR and FOI rights are broadly similar, there are also some key differences, of which all public authorities must be aware.
For example, while FOI requests can be refused where it would cost the authority more than £600 to respond, there is no equivalent upper limit for requests for environmental information. In addition, EIR requests can be made orally (i.e. not just in writing), and, when considering whether information should be withheld, public authorities are required to consider the public interest in a wider range of circumstances than under FOI.
It is evident from the Commissioner's experience in 2010, however, that many authorities fail to take appropriate account of the EIRs. Indeed, a number of 2010 decisions (e.g. Decision 137/2010, Decision 165/2010) concerned requests for information which authorities had failed to recognise as being 'environmental' in nature, while the Commissioner's ongoing assessments of public authority practice have also found deficiencies in this area.
The nature of requests
The subject matter of the requests considered by the Commissioner under the EIRs is broad, and illustrates the wide range of interests that requesters have in this area.
The decisions issued in 2010 considered a number of requests relating to large-scale infrastructure projects, including the Edinburgh Tram project, the new Forth Crossing, and the (now discontinued) project to build a Glasgow Airport Rail Link.
One a more local level, decisions considered information requests relating to drainage and sewerage in particular areas, the development of a wind farm, and escapes of farmed fish at a particular location.
The EIRs provide requesters with separate and distinct rights of access to the environmental information that is held by authorities, and it therefore essential that staff have a strong awareness of this right. This is the only way to effectively protect against future breaches of the EIRs, while also ensuring that the public's right to access important environmental information is appropriately respected.
For more information on the EIRs, visit www.itspublicknowledge.info/Law/EIRs/EIRs.asp
A significant proportion of the Commissioner's cases – 24% – are closed during the investigation, meaning that the Commissioner does not go on to issue a decision in relation to the case.
In some cases, an application will be closed because the requester chooses not to proceed with the case, and either withdraws or abandons it. This may, for example, happen if the public authority releases the information to the requester following the application to the Commissioner. There may also be cases where the Commissioner has issued decisions on a substantially similar matter in the past, and the Commissioner's staff are therefore able to discuss the likely outcome of the case with both parties, leading to either the release of the information by the authority, or the requester withdrawing their application.
Cases can also be 'settled' – that is, resolved through a more detailed negotiation between the authority and the requester, facilitated by the Commissioner's staff.
During the investigation of a case, the Commissioner's staff will assess whether settlement is both appropriate and achievable. Settlement will not be appropriate in every case, and a number of factors will be considered, including whether it is likely to lead to a faster resolution for the requester. Where settlement is possible, the outcome will often involve a compromise between the parties, although it will normally result in some sort of positive outcome for the requester. Often, this will be the provision of at least some of the requested information, but this will not be the case in every situation – sometimes a case may be settled through the provision of different information from that originally requested, or an authority might do something other than providing information to alleviate the requester's concerns.
In 2010, 109 cases were closed during the Commissioner's investigation, with 40% of these being formally 'settled'. Examples of 2010 cases closed during investigation include:
- a case where an authority had refused a request on the grounds of excessive cost (FOI allows requests which would cost the authority more than £600 to respond to, to be refused). During the investigation, the Commissioner's staff queried the high costs cited to respond to the request, following which the authority agreed to release the information;
- a case where an information request had been made to a local authority in relation to an ongoing complaint. The Commissioner's staff facilitated a meeting between the requester and the local authority. Following this meeting, relevant information was provided to the requester, who then withdrew the application;
- a case where an authority that had failed to acknowledge or respond to a request subsequently released all the information sought, following notification of the application to the Commissioner;
- a case where an authority had failed to appropriately respond to a request for information on senior staff expenses. The authority had provided some collated information, but this did not fulfil the terms of the request. The Commissioner's staff discussed this matter with the authority, notifying them that, in the particular circumstances, it was likely that the Commissioner's decision would require disclosure. The authority agreed to provide the information in full;