Commissioner makes basic errors in law and fails to act fairly

Commissioner makes basic errors in law and fails to act fairly

Published 29 October 2009

The Scottish Information Commissioner and his team appear to have made some fundamental errors in law in interpreting some of the most basic aspects of the Freedom of Information(Scotland) Act 2002 (FOISA).

In a recent decision against the Scottish Information Commissioner, the Court of Session has clarified the meaning of the term "information" under FOISA and has defined who is an "applicant" under the legislation.

The Court held that the Commissioner had failed to comply with his duty to act fairly in reaching his decision and that, in the Glasgow City Council case, his decision was irrational.

Background
MacRoberts requested from Glasgow and Dundee City Councils copies of statutory notices (copies of all notices served under various building and planning legislation since 17 February 2005) i.e. documents rather than the information contained within those documents.

Access to information
FOISA provides access to "information recorded in any form" and a distinction can be made between the information itself and the record in which it is contained, for example a document. FOISA provides a right of access to information, but this does not mean that an applicant has a right of access to the documentation in which the information is contained.

The Court took the view that where a request does not detail fully the information requested, but instead refers to the document within which the information can be found, as was the case in this instance, it is reasonable to take the view that it is the information and not the document itself which is relevant and should be provided.

The applicant
The Court also considered the fact that MacRoberts was acting as an agent on behalf of Millar & Bryce, a private search company. It was held that the Scottish Information Commissioner had not taken this into account when coming to his decision.

Under FOISA, information will be exempt from disclosure if it can reasonably be obtained by the applicant other than by a request under the legislation (e.g. under a publication scheme). By ignoring MacRoberts’ status as an agent, the Commissioner failed to have regard to the fact that Millar & Bryce as a private search company could otherwise obtain all the information it requires from Property Enquiry Certificates and from searching public records. The Court held that certain provisions of FOISA make it necessary for the principal and not the agent to be regarded as the applicant.

The judge, Lord Reed, concluded that:

1. The requests were invalid in that they were not requests for "information" within the meaning of the Act.

2. The requests were in addition invalid in that they did not disclose the name of the applicant, namely the second respondents.

3. The Commissioner erred in reaching his decisions on the basis that copies of statutory notices constituted "information" within the meaning of the Act.

4. The Commissioner erred in reaching his decision in the Glasgow case on the basis that a preference expressed by the applicant in terms of section 11 was relevant to the application of section 25.

5. We question whether, in any event, a request for copies of specified documents falls within the scope of section 11, but we do not require to express a concluded opinion on the point.

6. The Commissioner further erred, in relation to section 25, in failing to proceed on the basis that information which is made available in accordance with an authority's publication scheme, any payment required being specified in, or determined in accordance with, the scheme, is deemed to be reasonably obtainable.

7. The Commissioner further erred, in relation to section 25(1), in failing to take into consideration the nature and characteristics of the applicant.

8. The Commissioner failed to comply with his duty to act fairly in reaching his decisions, in relation to section 33(1)(b), in both the Glasgow case and the Dundee case.

9. The Commissioner's decision in the Glasgow case was, in addition, irrational in that it dealt with the contentions in respect of section 12 and section 25 on inconsistent bases.

Reports suggest that the Scottish Information Commissioner is considering an appeal to the Supreme Court.

• Opinion of the Court of Session (Court of Session website, 30 September 2009)
  
• Court of Session narrows the scope of Freedom of Information in Scotland (Dundas & Wilson website, 8 October 2009)
  
• Court of Session rules no right to request copies of documents under FOI(S)A (FOIA blog, 8 October 2009)
  

Ruling on Freedom of Information Act redefines the debate

Ruling on Freedom of Information Act redefines the debate

The Freedom of Information (Scotland) Act is an important piece of legislation, affording the public a means to access data held by public authorities.

The Court of Session recently granted an appeal that has important implications.

It found in favour of Glasgow and Dundee city councils, but its significance is not restricted to local authorities.

Health boards, the Crofters Commission and indeed the Scottish Parliament, for instance, can all receive freedom of information (FOI) requests.

The case was the result of FOI requests made to the councils from solicitors acting for a private firm, whose business involves providing land and buildings information for a fee.

This information includes any securities over a property and, crucially, information relating to local authority notices – planning permissions, building controls and the like.

Even in a credit-crunched economy, searches related to property transactions are a tidy earner. Scottish councils often charge a fee for information, but the private firm wished to short-circuit the system by obtaining all relevant data held by the councils.

In turn, it could then sell on a package of information to third parties.

Despite various representations by the local authorities, the Scottish Information Commissioner ordered disclosure. The councils then successfully appealed.

Key issues included the court distinguishing "information" from "records", since the solicitors acting for the firm had requested specific copies of statutory notices.

The court ruled that the commissioner had been wrong not to allow public authorities the chance to provide the information contained in the statutory notices in a form other than a copy. The act is about free access to information, not free access to documents in a specified form.

A Scottish public authority must, so far as practicable, provide information in a format that the applicant would prefer, but where this is impractical and the information can be provided in another format, there is no need to comply with the expressed preference.

The court also clarified that information does not include unrecorded information. Only information that already exists can be sought.

Another issue was whether the information sought by the applicant could be obtained other than by a specific FOI request. There is an exception in the legislation that stipulates there may be no need to disclose information already made available, whether or not a fee is involved. In this case, the already existing schemes meant the information sought fell within the exception and could be obtained elsewhere.

There is much in the opinion of the court to keep in mind. Careful consideration must be given to any request before anything is divulged. In fact, public authorities should not be afraid of asking for more detail, or of rejecting an application that goes beyond the act's terms. The act does contain a 20-day deadline for compliance, but this should not hurry an authority into unnecessary disclosures.

The same advice applies to anyone working in tandem with the public sector, such as contractors or a project company in a public-private partnership arrangement.

While the act is a useful tool to access information, it is not a blunt instrument, and this judgment makes clear it should not be treated as such.

From a public authority's perspective, an incomplete understanding of the act could lead to inappropriate disclosure that could cause embarrassment or even a degree of self-incrimination.

Some regard this decision as damaging to the public's right to information, but the key lessons to take from the decision are to make appropriate FOI requests in an appropriate manner.

• Malcolm Combe is a solicitor with Tods Murray LLP.

Ruling on Freedom of Information Act redefines the debate (The Scotsman, 12 November 2009)

NSW Office of the Board of Studies needs a lesson in FoI

NSW Office of the Board of Studies needs a lesson in FoI

For a standout example of what is wrong with freedom of information in New South Wales you cannot go past the Ombudsman's new report into the Office of the Board of Studies.

Over 120 pages the deputy Ombudsman, Chris Wheeler, has shredded the office over its handling of freedom-of-information applications made by former students seeking details of the standardised marking system that determines the marks 67,000 students are awarded each year in the higher school certificate exams.

Wheeler was called in by students in 2007 to resolve a dispute that goes back to 2001, when a new HSC was introduced and several students tried to find out their actual, or raw, marks. His starting point reflects the fundamental reason we have freedom-of-information laws: a belief that open access to information is the best way to ensure systems work as intended...

The Ombudsman described the office's behaviour as "adversarial, defensive, combative, obfuscatory, technical, legalistic, unco-operative as well as being in breach of the law."

People, not laws, block freedom of information (Sydney Morning Herald, 4 October, 2009)

The lengths some people will go to prevent disclosure

The lengths some people will go to prevent disclosure

Freedom Communications Inc., parent of The Orange County Register, is throwing up roadblocks in its bankruptcy case by designating more

than 1 million documents as confidential, including a Dodgers baseball game schedule and poetry, said the unsecured creditors committee in a court filing in Delaware today.

“The gamesmanship has to stop if these Chapter 11 cases are to proceed in an orderly fashion for the benefits of all constituents,” the creditors said in their motion, noting Freedom Comm Inc even designated blank sheets of paper as confidential.

Freedom Communications tries to keep bankruptcy documents secret (Orange County Business News, 2 October, 2009)

Owned by the public, hidden from the public

Owned by the public, hidden from the public

A bid to force publication of a review by the BBC of its Middle East coverage has been rejected in the High Court.

London lawyer Steven Sugar wanted the Balen report, which was drawn up in 2004, to be revealed under the Freedom of Information Act.

But Mr Justice Irwin ruled that, as the material was held "for the purposes of journalism, art or literature", the corporation had no duty to disclose it.

He also ruled the BBC did not have to disclose information about expenditure.

The judgement followed requests for budget details of the BBC's news and sport coverage as well as programmes including EastEnders and Top Gear.

BBC report to stay confidential (BBC News, 2 October 2009)

See also: BBC wins legal battle over report on Middle East coverage (The Guardian, 2 October 2009)

The rising cost of data

The rising cost of data

From 1 October 2009 large companies that collect or process personal data must pay £500 to register with the Information Commissioner's Office.

The heavily increased annual charge applies to firms with a turnover of more than £25.9m and 250 or more employees. Public sector organisations with 250 or more staff must also pay.

Smaller outfits will still be charged £35 per year, which previously applied to all data controllers.

The new two-tiered charging structure was waved through by the government in July and its estimated will affect about four per cent of data contollers. Failure to register is a criminal offence punishable by an unlimited fine.

The Information Commissioner asked for an increase to cover what it said was the true administrative cost of regulating large firms. Fees hadn't been increased since the Data Protection Act came into force in 2000.

Data watchdog jacks up charges (The Register, 1 October 2009)

FoI in the USA: salary and food inspection databases

FoI in the USA: salary and food inspection databases

The State (South Carolina) has compiled state and local salary details of 5,600 local and nearly 20,000 statewide positions. Local salaries included are for Kershaw, Lexington and Richland county government, most municipalities in those counties and school districts. More than half the data in the local agencies database has been updated in the last two weeks and new data is coming in daily.

This information is available via Freedom of Information Act submissions, as state law requires base salaries be made available upon request for certain classes of state employees making $50,000 or more annually. More information about how they obtain and why they share this information is available on their salary search pages.

Their restaurant inspection database contains thousands of Dept. of Health and Environmental Control inspection results for eateries in Kershaw, Lexington and Richland counties. The data can be searched by county, restaurant name, address (find results from all restaurants with "Harbison" in the street name, for example), city, ZIP code or inspection type or result.

Data updates: State, local salary, food inspections (The State, 30 September 2009)

ICO expands

ICO expands

The Information Commissioner’s Office (ICO) is expanding its head office on Water Lane, Wilmslow. Building work is now underway following planning permission to extend Wycliffe House.

The ICO is the national independent body that champions information rights, regulates data protection and freedom of information, and employs some 300 staff in Wilmslow. The organisation handles over 100,000 calls from the public every year, investigates around 25,000 individual data protection cases, and determines over 3,000 complaints under the Freedom of Information Act.

Simon Entwisle, Chief Operating Officer at the ICO, said: “Wilmslow is a great location for us and I am delighted that we are staying in the town. Our work on information rights - protecting people’s privacy and promoting access to official information - has never been more important. The decision to stay put is good news for jobs in Wilmslow and other businesses in the area.”

The building work will enable the ICO to accommodate all Wilmslow based staff in one building, enhance the existing office space and provide scope for further expansion. It will provide an additional 10,000 square feet of modern, environmentally friendly accommodation over three floors. The work will be managed by Jones Contracts and is due to be completed by summer 2010.

The decision to extend on the existing Water Lane campus in central Wilmslow follows a review of property requirements. Accommodation in other areas was considered, but the organisation has decided that Wilmslow provides better value for money and is a more convenient location for the majority of staff.

The ICO is currently based on two sites in Wilmslow (Wycliffe House, Water Lane and Town House, Alderley Road). The ICO also has small offices in London, Belfast, Cardiff and Edinburgh.

Information Commissioner’s Office grows in size (Publictechnology.net, 30 September 2009)

Surf's up

Surf's up

It is due to be the jewel in the crown of a multi-million pound project to rebrand a less than glamorous part of the Dorset coast.

A hi-tech artificial reef - the first of its kind in Europe - to bring a new surf culture and clientele to Boscombe in Bournemouth.

But questions over the surf reef's performance and safety were still being raised recently, e-mails seen by BBC News reveal.

Work was previously delayed on the reef between November and April due to bad weather, pushing the cost to £3m - nearly double the original price.

Recent e-mail correspondence between Bournemouth Borough Council and developer ASR, obtained under Freedom of Information laws, shows concerns over gaps in the artificial reef.

Surf reef safety questions raised (BBC News, 28 September 2009)

The sun ain't gonna shine anymore

The sun ain't gonna shine anymore

Doctors' leaders have strongly criticised a local authority which has taken more than £83,000 from operating sunbeds in the past five years.

After a Freedom of Information request, the British Medical Association (BMA) found that Wrexham generated the money.

After BMA Wales criticism, the Vale of Glamorgan council recently agreed to remove its leisure centre sunbeds.

Wrexham council said it would also be removing sunbeds by April 2010, and has already reduced their numbers to five.

The BMA said it was "deeply shocked" after obtaining the £83,632 income figures relating to sunbed use at Wrexham council leisure facilities.

Doctors criticise council sunbeds (BBC News, 28 September 2009)

Extra curricular activities

Extra curricular activities

Almost 150 teachers in England have been sacked or disciplined for sexual misconduct in the last two years, new figures revealed.

Some 49 of the 56 teachers who lost their jobs were reported to the police, according to a Freedom of Information request made by More4 News.

A further 92 faced disciplinary action.

Sexual misconduct could include a number of offences such as sexual assault, sex with a pupil, or showing students pornographic material.

A breakdown of the figures, provided by 100 local authorities in England, show that 52 teachers were disciplined in 2007/08, and 40 were disciplined in 2008/09.

In addition, 31 teachers were sacked for sexual misconduct in 2007/08, with 25 losing their jobs in 2008/09.

The police were informed in 26 cases in 2007/08, and in 23 cases in 2008/09.

The figures mainly relate to teacher and pupil behaviour More4 said, although some cases of teacher and teacher behaviour are included due to the way the data was collected.

Sexual misconduct figures revealed (Press Assciation, 26 September 2009)

Sick tax

Sick tax

NHS hospitals raked in more than £110 million in car parking charges last year, research by the Liberal Democrats revealed.

The figures, disclosed in a Freedom of Information request, showed visitors were hit with £84 million in parking fees while NHS staff were charged £28 million.

Addenbrooke's Hospital in Cambridge made the most out of any hospital, taking £2.8 million in parking charges.

Peter Wilcock, Liberal Democrat candidate for Saffron Walden, Cambs, said the parking charges were "effectively a tax on the sick".

Hospitals make millions in parking (Press Association, 25 September 2009)

The mole and the MPs' expenses

The mole and the MPs' expenses

The mole who leaked details of MPs' expenses says he was partly motivated by anger at inadequate equipment for UK troops, the Daily Telegraph reported.

It says staff sorting through MPs' receipts were guarded by servicemen on leave moonlighting to earn extra money.

The mole said their stories "helped tip the balance" in the decision to leak details - the Telegraph has confirmed it paid £110,000 for the information.

The MoD says its top priority is to get the "best equipment" for troops.

The claims are made in a book being published by the Daily Telegraph on Friday about the expenses scandal.

Expense mole 'angry at Army kit' (BBC News, 25 September 2009)

Questions over child abuse sentences

Questions over child abuse sentences

A quarter of child abusers avoid court action and are issued with police cautions instead, it emerged today.

Figures provided by 33 police forces show 8,043 people who committed sexual and physical abuse offences against children were charged in the year to April, while 2,764 were given a caution.

The statistics include 20 who raped girls under 16 and eight who attacked young boys.

The shocking figures were provided to The Sun by the 33 forces in a response to a Freedom of Information request.

The data also shows three in five of those who admit child neglect or cruelty avoided court action.

With police charging 1,019 adults while 1,568 were cautioned.

In London, where Baby P was tortured and killed, almost a third of abusers avoided court action.

Quarter of child abusers escape court action and get police cautions instead (Daily Mail, 23 September 2009)

Questionable practices in police reporting of rape

Questionable practices in police reporting of rape

Some UK police forces fail to record more than four in 10 rape claims on official crime records, it has been reported.

Figures obtained by the BBC, using Freedom of Information legislation, found wide regional variations.

In Northumbria, 172 of a total of 382 reports of rape (45%) did not make it into official Home Office figures.

The BBC said rules state that only allegations verified as false - reported to the wrong force or recorded in error - can be removed.

Police in Durham said only five of 130 cases had been "no-crimed", yet the BBC said figures showed a further 83 cases were never officially recorded in the first place.

Forces in Humberside, Gloucestershire and Northamptonshire recorded at least 90% of cases for investigation.

The figures also showed hundreds of complaints lodged in the year to March 2008 never went forward to a full investigation.

The Association of Chief Police Officers (Acpo) said significant advances had been made into investigating rapes, but admitted there was still much more to do.

'Missing' police rape cases queried (Press Association, 20 September 2009)