Category Archives: Freedom of Information

Call for Views: Post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002

In January it was announced that the Scottish Parliament’s Public Audit and Post-Legislative Scrutiny Committee would undertake formal post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002. The Committee is now seeking views on the Freedom of Information (Scotland) Act 2002 and is inviting submissions to reach it by 5pm on Friday 10th May 2019. The call for views asks the following five questions:

  1. In your view, what effects has the Freedom of Information (Scotland) Act 2002 (FOISA) had, both positive and negative?
  2. Have the policy intentions of FOISA been met and are they being delivered? If not, please give reasons for your response.
  3. Are there any issues in relation to the implementation of and practice in relation to FOISA? If so, how should they be addressed?
  4. Could the legislation be strengthened or otherwise improved in any way? Please specify why and in what way.
  5. Are there any other issues you would like to raise in connection with the operation of FOISA?

It is not necessary to answer all five questions and the Committee is also inviting other information relevant to the remit.

Once the Committee has received the written evidence, it will consider it all and will thereafter decide who it wishes to take oral evidence from. It is expected that the oral evidence sessions will take place towards the end of the year.

Alistair Sloan

We are able to provide advice and assistance in connection with a range of Freedom of Information matters, including appeals against decisions of both the Scottish and UK Information Commissioners.  If you would like to do discuss a Freedom of Information, or any other Information Law, matter with us then you can contact Alistair Sloan on 0141 229 0880.  Alternatively, you can send him an E-mail.

Personal data and FOI: the conflict continues

The interaction between freedom of information and data protection laws is one which often results in conflict. On the one hand there is a legislative scheme that operates to promote transparency, while on the other there is a legislative scheme that operates to protect personal data. FOI law essentially provides that information should be released unless there is a good reason not to; while data protection law says that personal data should not be processed unless there is a good reason to. Both have their complexities and those brief explanations do not adequately encapsulate them.

The decision of the Upper Tribunal in Information Commissioner v Halpin [2019] UKUT 29 (AAC) is an example of where the First-Tier Tribunal got it badly wrong when dealing with the legitimate interests ground for processing under the Data Protection Act 1998. The Respondent in this appeal, Mr. Halpin, had requested information from Devon Partnership NHS Trust concerning the training that two named social workers had undergone in respect of the Care Act 2014. When deciding whether to release personal data under FOI law there is essentially a three staged test which must be satisfied before the personal data can be disclosed; this test was set out clearly by the Supreme Court in South Lanarkshire Council v Scottish Information Commissioner.

Firstly, is a legitimate interest or interests being pursued by the controller, third party or parties to whim the personal data is to be disclosed? Secondly, if a legitimate interest has been identified, is the processing (by way of disclosure under FOI law) necessary for the purposes of those interests? Finally, if there is a legitimate interest and the processing is necessary for that legitimate interest, then the processing cannot be unwarranted by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

The first ground of appeal for which permission was granted was in respect of the FTT’s treatment of the effect of disclosure of the information to the world at large; in particular that the FTT had not deal with this matter in substance. This is an issue that needs to be carefully considered: disclosure under FOI is not simply a disclosure to the individual requester; it is a disclosure to the whole world. This is an important factor in determining the necessity of the processing in pursuance of the legitimate interest concerned. It is also important in considering whether the processing (by releasing the information under FOI) is unwarranted.

Once the information is disclosed under FOI law it is disclosed in circumstances where the public authority loses control of the information concerned; there is no duty of confidentiality owed. Therefore, there is nothing that can be done in order to prevent further dissemination of the information.

Upper Tribunal Judge Markus QC states, at paragraph 20, that Mr Halpin’s lack of motivation to publicise the information is irrelevant to the question of assessing the potential impact of disclosure to the world at large. The motivation of the requester is only relevant to the first of the three stages of the test set out in South Lanarkshire Council v Scottish Information Commissioner (whether a legitimate interest exist); it is not relevant to the question of necessity or the final question of balancing the legitimate interests against the rights, freedoms and legitimate interests of the data subject.

Public authorities, and those advising them, should therefore ensure that, when considering the release of personal data in response to a FOI request, they do not become focused on the individual requester; it is essential to consider the wider world when undertaking this assessment. The motivations of the requester might well be wholly benign, but there are others whose motivation may not be so benign and will utilise the information for other purposes. Requesters should also bear this in mind; an individual requester might have a perfectly legitimate interest in the personal data and the necessity test might very well be met in their individual case; that is not enough. Due consideration has to be given to the wider impact of releasing information to the world; this is why consideration has to be given to whether the personal data can be obtained in another way as part of the necessity test (although, the existence of other means of obtaining personal data, other than by way of a FOI request, will not necessarily be determinative of the issue).

Alistair Sloan

We are able to provide advice and assistance to public authorities and requesters in connection with matters concerning Freedom of Information laws; if you would like advice and assistance in connection with these matters, or any other information law matter, please contact Alistair Sloan on 0141 299 0880 or by E-mail. You can also follow our dedicated Information Law Twitter account.

FOI in Scotland: Registered Social Landlords

Last week the Scottish Ministers laid The Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2019 (Draft) before the Scottish Parliament for the approval of the Parliament, as they are required to do in terms of the Freedom of Information (Scotland) Act 2002 (“FOISA”). This order is a long anticipated order to bring Registered Social Landlords (“RSLs”) within the scope of FOISA by designating them as Scottish public authorities. If approved (and there is nothing to suggest that the Order will not be approved by the Scottish Parliament), it will mean that RSLs (and their subsidiaries) will be designated as Scottish public authorities from 11 November 2019. Some had been hoping that they would have been designated from April this year, while others had been hoping that it would be April 2020. The Scottish Ministers appear to have split the difference and given RSLs a period of around 9 months to prepare for becoming Scottish public authorities.

RSLs have been, following a number of decisions of the Scottish Information Commissioner (which have never been appealed to the Court of Session), Scottish public authorities for the purposes of the Environmental Information (Scotland) Regulations 2004 for a number of years. There is, however, some debate about whether they remain so, following some changes to the regulatory landscape pertaining to RSLs. It has not yet, to my knowledge, been tested whether they still are Scottish public authorities for the purposes of the Environmental Information (Scotland) Regulations 2004. Whether the changes to the regulatory landscape of RSLs has had the effect of them no longer being Scottish public authorities, for the purposes of the Environmental Information (Scotland) Regulations 2004, is somewhat immaterial; designation as a Scottish public authority for the purposes of FOISA also means that they will be Scottish public authorities for the purposes of the Environmental Information (Scotland) Regulations 2004.

It should be noted that the draft order has been drafted in such a way so as to make RSLs Scottish public authorities for limited purposes only. They will be Scottish public authorities in respect of the following functions:

  1. providing housing accommodation and related services and includes anything done, or required to be done, in relation to:- (a) the prevention and alleviation of homelessness; (b) the management of housing accommodation (limited to the management of housing accommodation for which a registered social landlord has, under the Housing (Scotland) Act 2001, granted a Scottish secure tenancy as defined in section 11 or a short Scottish secure tenancy as defined in section 34 of that Act); (c) the provision and management of sites for gypsies and travellers, whatever their race or origin; and
  2. the supply of information to the Scottish Housing Regulator by a registered social landlord or a connected body in relation to its financial well-being and standards of governance.

A register of social landlords can be found on the website for the Scottish Housing Regulator.

Alistair Sloan

We are able to provide advice and assistance to public authorities and requesters in connection with matters concerning Freedom of Information laws; if you would like advice and assistance in connection with these matters, or any other information law matter, please contact Alistair Sloan on 0141 299 0880 or by E-mail. You can also follow our dedicated Information Law Twitter account.

Developing the Information Expressway

The Upper Tribunal has recently considered the meaning and scope of the exception in Regulation 12(4)(d) of the Environmental Information Regulations 2004 (“the EIRs”). This exception allows a public authority to withhold environmental information in response to a request where “the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data”.

Highways England Company Limited v Information Commissioner and Henry Manisty [2018] UKUT 432 (AAC) concerned a request made to Highways England by Mr Manisty in December 2016. Mr Manisty request related to the possible route of the Expressway between oxford and Cambridge being investigated by Highways England. His request was refused by Highways England and the Information Commissioner did not uphold Mr Manisty’s subsequent complaint to her office. Mr Manisty appealed to the First-Tier Tribunal who allowed his appeal, deciding that the exception in Regulation 12(4)(d) did not apply. Highways England sought, and was granted, permission to appeal to the Upper Tribunal.

Upper Tribunal Judge Jacobs reminds us that as the EIRs implement an EU Directive they must (for now) be interpreted in a way that accords with the normal principles that apply to EU law. Judge Jacobs reminds us that one of those principles is that the exceptions must be interpreted restrictively. Judge Jacobs points out that this is a separate consideration from the presumption in favour of disclosure enshrined within the EIRs; that presumption simply allocates the burden of proof while the restrictive approach defines the scope of the exception.

Judge Jacobs also addresses the Aarhus Convention and the Implementation Guide. The EU Directive, which the EIRs implements, implements the Aarhus Convention into EU law and so regard has to be had to the convention when interpreting the EIRs and the Directive. Judge Jacobs, in paragraph 19, reviews some of the relevant case law and concludes that the Implementation Guide “can be used to aid interpretation, but it is not binding and cannot override what the Convention provides.”

Judge Jacobs includes two helpful paragraphs setting out what the exception does not mean. When deciding the scope of the exception it is not permissible to take into account any adverse consequences that disclosure might have. This is relevant for the purposes of determining where the public interest lies and also, perhaps, deciding whether the exception is engaged. Judge Jacobs states that “[a]dverse consequences must not be made a threshold test for regulation 12(4)(d).” [para 21]

Judge Jacobs considers what “material” and “relates to” means within the exception. In respect of “material”, he considers that the word material “is not apt to describe something incorporeal, like a project, an exercise or a process.” The material in question may form part of a project or process etc.; however, the material in question must itself be in the course of completion. We are not necessarily concerned with whether the project is in the course of completion. [para 23] Judge Jacobs also holds that “[m]aterial includes information that is not held in documents and is not data: things like photographs, film, or audio recordings.” [para 24]

Having already looked at what the exception does not mean, Judge Jacob eventually gets around to deciding what the exception does mean. He notes, in paragraph 28, that the language in the exception is “deliberately imprecise.” That being said, Judge Jacobs, in paragraph 30, returns to the principle that the exception should be applied restrictively. The imprecise language does not mean the exception can be applied “so widely as to be incompatible with the restrictive approach required by EU law.” At the same time it cannot be applied so narrowly that its purpose is defeated. In paragraph 31 of the decision, Judge Jacobs, identifies yet another deliberately vague expression within the exception: ‘piece of work’. The judge identifies some factors that may be of some assistance in applying the exception. For example, if there has been a natural break in the public authority’s private thinking; or, perhaps, the public authority is at a stage where publicity around its progress so far is taking place. The continuing nature of the project, process or exercise might also be a relevant feature. However, public authorities shouldn’t get too excited: this is not, by any means, a checklist. Judge Jacobs makes it clear that each case will turn on its own circumstances.

Public authorities should also be aware that their own internal labels will not be determinative of matters; it is not possible to, in the words of Judge Jacobs “label [your] way out of [your] duty to disclose.” Labels such as “draft or preliminary thoughts may, or may not, reflect the reality.” [para 32]

Counsel for Highways England is recorded as having emphasised legal certainty and its importance. Judge Jacobs accepts that his decision will not produced legal certainty in the way that was possibly envisaged by Counsel for Highways England. Judge Jacobs notes that its application will not be easy; however, issues of judgement are involved and that limits what can be achieved.

In deciding that the First-Tier Tribunal had not erred in law, Judge Jacobs took the view that, when reading the First-Tier Tribunal’s reasoning as a whole; its approached accorded with his analysis of the operation of the exception. The First-Tier Tribunal “understood that it was exercising a judgment on whether the information requested could now properly be considered as independent from the continuing work on the Expressway.”

So, what have we learned? Judge Jacobs has certainly gone through the exception carefully and produced what he considers to be the best that can be achieved in terms of defining the scope of the exception in Regulation 12(4)(d). Its scope is narrow, but not so narrow as to defeat the policy intention of providing a space for public authorities to think in private; however, its imprecise nature should not be taken as giving public authorities cart blanche. Each and every case will turn on its own circumstances and a degree of judgement is involved in determining whether the exception will apply or not.

There are also some useful reminders (for now) about the need to utilise EU law principles when interpreting the EIRs. There is also a useful reminder, in paragraph 6, about the approach that the Upper Tribunal adopts when considering an appeal. It is unlike the First-Tier Tribunal; it is not conducting a re-hearing of the case. The Appellant has to show that the First-Tier Tribunal erred in law. We are also reminded that the nature of the language of the provision has to be taken into account when considering legal certainty; it is therefore not always possible to give a precise exposition of the scope of a provision – sometimes, it really does just come down to a matter of judgement.

Alistair Sloan

We are able to provide advice in connection with a wide range of information law matters, including Freedom of Information Act/Environmental Information Regulations appeals. If you would like advice and assistance on any of these matters then please contact Alistair Sloan on 0141 229 0880 or by E-mail. You can also follow our dedicated information law account on Twitter.

Openness by design: ICO’s draft access to information strategy

The Information Commissioner’s Office has published a draft access to information strategy [pdf] and is inviting comments on it. The document opens by explaining that over the next three years the ICO has the ambition to be “more proactive and increase the impact of” regulation in respect of the Freedom of Information Act 2000 (“FOIA”) and the Environmental Information Regulations 2004 (“EIRs”).

The document is intended to be read in conjunction with the ICO’s ‘Regulatory Action Policy’, which was consulted on last year (and covers all of the legislation that the Commissioner is tasked with enforcing, not just FOIA and the EIRs).

The draft strategy gives the impression that the ICO intends to become more proactive in its enforcement of FOIA and the EIRs – especially in relation to “systematic non-compliance”. This could mean that the ICO intends become more formal in its enforcement action. So we will need to wait and see how it pans out.

The other matter within the draft strategy that is worthy of note (although it really is worthwhile taking the time to read the whole document – it’s not a lengthy one) is the section which discusses the changes that have occurred since FOIA and the EIRs were enacted. In particular the draft strategy indicates that a report to Parliament will be published later this month “making recommendations for change in relation to outsourced public services and some other categories of public service provision that are not within the scope of the current legislation.” Quite what will happen with such a report, given that Parliament is pretty tied up with Brexit related matters, is unclear; however, it should be worth looking at – especially if you’re involved in the provision of public services under contract.

The ICO is inviting comments on the draft strategy document until 8th March 2019 and comments can be submitted via the ICO website.

Post-Legislative Scrutiny of the Freedom of Information (Scotland) Act 2002

For some time now the Scottish Parliament’s Public Audit and Post-Legislative Scrutiny Committee has been considering whether to undertake post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002. The Committee’s decision on whether to undertake post-legislative scrutiny of FOISA was delayed while they awaited the Scottish Information Commissioner concluding his intervention in respect of the Scottish Government.

Yesterday, after hearing again from the Scottish Information Commissioner and his Head of Enforcement, the Committee took a decision (in private), as recorded in the Minutes [pdf], to undertake post-legislative scrutiny of FOISA.

It is not yet clear how the Committee will undertake its post-legislative scrutiny or what the timetable will be; but what can now be said is that there will be formal post-legislative scrutiny of FOISA by a committee of the Scottish Parliament for the first time since FOISA was enacted in 2002. Much has changed since FOISA was enacted and while the Act generally performs fairly well, there are undoubtedly some areas which are ripe for improvement.

Once we know more about the details of the post-legislative scrutiny I will, of course, blog about it.

Alistair Sloan

We are able to provide advice and assistance in connection with a range of Freedom of Information matters, including appeals against decisions of both the Scottish and UK Information Commissioners.  If you would like to do discuss a Freedom of Information, or any other Information Law, matter with us then you can contact Alistair Sloan on 0141 229 0880.  Alternatively, you can send him an E-mail.

Scottish Vexatiousness

Paragraph numbers in this blog post relate to the Court of Session’s decision in Beggs v Scottish Information Commissioner [2018] CSIH 80; unless the context requires, or it is expressly stated, otherwise.

If you’re regularly involved in the making of or responding to freedom of information requests then you are likely to be familiar with the decision of the English and Welsh Court of Appeal in Dransfield and Another v The Information Commissioner and another which deals with the meaning and application of “vexatious” within section 14 of the Freedom of Information Act 2000 (“FOIA”). In keeping with many of the provisions of FOIA, there has been considerable litigation on section 14 within the First-Tier Tribunal; however, the decision in Dransfield is the leading authority on the approach that public authorities, the UK Information Commissioner and the First-Tier and Upper Tribunals should take when applying or considering the exemption in section 14(1) of FOIA.

As with many aspects of the Freedom of Information (Scotland) Act 2002, the equivalent provisions within FOISA (also section 14) have escaped any judicial consideration; that is, until today when the First Division,  Inner House of the Court of Session (Lord President Carloway and Lords Brodie and Drummond Young) advised its opinion in an appeal under section 56 of FOISA against a decision of the Scottish Information Commissioner which upheld the decision of the Scottish Prison Service that a request for information made to it was vexatious: Beggs v Scottish Information Commissioner [2018] CSIH 80.

As with most cases involving vexatious requests, there is a history to the matter; this is briefly set out in paragraphs 5-15 of the Court’s Opinion. I am therefore not going to set it out here. There were two grounds of appeal advanced on behalf of the Appellant before the Court and these are set out, in full, by the Court in paragraph 4 of its Opinion. The grounds can  be summarised as follows: (1) that the test set out by Arden LJ (as she then was) in Dransfield should apply and that it had been incorrectly applied by the Scottish Information Commissioner (“SIC”); and (2) that the SIC’s decision was irrational as it failed to take into account a number of factors. The court ultimately rejected both grounds of appeal and refused the Appeal.

The Court makes some “preliminary comment” about the English and Welsh Court of Appeal’s decision in Dransfield. It notes that the decision is “an English case concerning English legislation” (para 26). This is not a wholly accurate statement by the Court: Dransfield concerns section 14 of FOIA, which cannot properly be said to be English legislation. FOIA covers UK-wide public bodies (such as UK Government departments, the BBC, UCAS, the British Transport Police and other); it can be used by people living in Scotland. There is also no separate Norther Irish FOI law and FOIA applies to bodies such as departments of the Northern Irish Government and the Police Service of Northern Ireland. Furthermore, it is possible for appeals against the Upper Tribunal to be taken to the Court of Session and the UK Commissioner can, for example, under section 54, make certifications to the Court of Session.

It appears that what the Court meant by “English legislation” is that the decision in Dransfield was not binding upon the SIC as the SIC is concerned with the enforcement of FOISA – an Act of the Scottish Parliament – rather than FOIA – an Act of the UK Parliament. I may, of course, be entirely wrong and the Court of Session has fundamentally misunderstood FOIA and the distinction between FOIA and FOISA. However, this is not really a matter upon which anything of substance in Beggs can be said to turn. It appears that the Court has essentially adopted the reasoning of Arden LJ and supplemented it with some of its own.

Also by way of preliminary comment the Court notes that Arden LJ expressly declined to offer a definition of or test for “vexatious” or “vexatiousness” (para 26) and so it was incorrect to argue that Dransfield set out a “test” for vexatious requests. The court went on (also at para 26) to state that “[i]t would be remarkable if the word “vexatious” when found in section 14(1) of the English Act of 2000 meant something different from the same word when found in section 14(1) of the Scottish Act of 2002; the terms of the two subsections are essentially identical.”

However, the Court of Session found that there was much in the judgment of Arden LJ that they would agree with and quote paragraph 68 of the judgment of Arden LJ with approval. The Court of Session, perhaps importantly, appears to have approved of the view that Arden LJ took that the rights in FOIA were constitutional in nature (para 28). The court also held that when assessing whether a request is vexatious or not, it must be viewed objectively. In the decision under challenge, the SIC had concluded that when viewed objectively the information sought was of no value to the Appellant. The First Division held that had the SIC followed Dransfield (which she was not obliged to do so) then she would have correctly reached the same conclusion: that Mr Beggs’ request was vexatious (para 30).

In terms of the irrationality ground of appeal, this was dealt with more swiftly by the Court. Counsel for the Appellant had characterised the three matters which the Appellant argued had been overlooked by the Court, were material.

The first matter was the Appellant’s express disavowal of any direct and personal attack. The Appellant had expressly disavowed in his request that there was any such attack. However, the Solicitor Advocate for the SIC argued that the contents of a letter sent to one of the SIC’s officers revealed the Appellant’s purpose; the Appellant’s purpose was “not to obtain information as such” (para 33) rather it was with a view to pursuing complaints about their conduct.” (also at para 33).

The court held that “the presence of a malicious motive may point to a request being vexatious the absence of a malicious motive does not point to a request not being vexatious” (para 33). In essence, while the Court appears to have been sceptical of the Appellant’s express disavowal of personal attack it seems that even if it had not been sceptical, the disavowal may not have assisted the Appellant anyway. The Court again expressed the objective nature of assessing whether a request is vexatious and agreed with the SIC that a request may be harassing even if that is not what is intended by the requester.

The second consideration referred to the past conduct of the authority; these requests appear to have been the result of the Scottish Prison Service putting forward inaccurate information in earlier proceedings before the Court of Session. The Court approved of the view of Arden LJ in respect of vengeful motives – such a motive might itself be an indicator that a request is vexatious. The court’s position here is fairly broad, but it does not appear to close off legitimate use of FOISA to uncover evidence of wrongdoing within a Scottish public authority. However, it is fairly clear that if a requester is using

The third consideration related to the importance of the information requested; the court concluded that the information was objectively of no value and this was therefore not a material consideration.

Comment
This is the first time that the vexatious requests provision in FOISA has been considered by the Scottish courts and will now be the leading case in applying section 14(1) of FOISA. The decision essentially approves of the approach set out by the English and Welsh Court of Appeal in Dransfield. It is important to remember that a request must be considered objectively. There is no express test for vexatious requests either under FOIA or FOISA, but it will be important for Scottish public authorities to keep in mind the constitutional nature of the rights in FOISA. With this in mind, the threshold for applying the provision in section 14(1) of FOISA is a high one.

The Court of Session considers that, when Arden LJ used the phrase “no reasonable foundation for thinking that the information sought would be of value”, it appears that Arden LJ was trying to encapsulate an idea of “gross disproportion as between much trouble inevitably caused and little benefit possibly gained.” How much traction this comment of the Court of Session will have in terms of the application of section 14 of FOIA (given that the Court of Session’s judgments in FOISA cases are of only persuasive authority to the Tribunals and English and Welsh Courts) remains to be seen. Of course, should Beggs seek permission (and be granted permission) to appeal to the Supreme Court we may get a definitive view from(the now)  Lady Arden on whether the Court of Session has correctly interpreted what she meant when sitting in the English and Welsh Court of Appeal.

For the time being, whether or not the Court of Session was right in what it said, this is now (subject to any appeal) the law as it applies in Scotland vis-à-vis FOISA. When considering whether a requester has a reasonable foundation for thinking that the information sought would be of value, it is necessary to look (objectively) at what value there is in the information (a mere assertion by the Applicant that it is of value will not itself be sufficient) and balance that against the inevitable burden that answering the request will place on the authority: they are inversely proportional to one another.

From the perspective of requesters, it is likely to be of little assistance to include express statements in requests that the request is not a personal attack on the authority or a member of its staff and even if you have no intent to cause harassment your request might well have that effect. Your request will be considered objectively in light of its facts and circumstances (and comments made in later correspondence may well be seen as tending to show the opposite).

The decision in Beggs is not likely to have much, if any, impact upon the way in which the vexatious requests provisions in FOISA operate in practice. The Court has essentially approved of the approach to the identical provisions under FOIA. In the absence of any previous authority from the Scottish courts in respect of section 14, the SIC and Scottish public authorities have historically found Dransfield to be persuasive and used it as a basis for understanding what section 14 means.

In short, to decide whether a request is vexatious it is necessary to consider the request objectively on its own facts and circumstances. There is no formula or checklist that can be followed which will give you a definitive answer.

Alistair Sloan

If you would like advice or assistance in respect of a Freedom of Information matter or a data protection/privacy issue then contact Alistair Sloan on 0141 229 0880 or you can send him an E-mail.

Environmental Information request appeals and prohibitive costs: new Court of Session rules

The Court of Session has made new rules with a view to preventing court actions relating to the environment from being “prohibitively expensive”. The new court rules introduced orders which will be known as “prohibitive expenses orders”. These new rules are of relevance to readers of this blog as they will apply to appeals against decisions of the Scottish Information Commissioner to the Court of Session where the decision being appealed relates to a request for environmental information under the Environmental Information (Scotland) Regulations 2004 (EIRs).

The EIRs give effect in Scotland (in relation to environmental information held by Scottish public authorities – environmental information held by UK public authorities is covered by the Environmental Information Regulations 2004) to Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information. [pdf] This European Directive in turn gives effect to the UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters [pdf] (‘the Aarhus Convention’). Article 9 of the Aarhus Convention requires that individuals have access to justice in respect of environmental matters and that this should not be “prohibitively expensive”.

With some of the background to these new rules (briefly) explained, what exactly do these new rules mean? In short, they mean that anyone who brings an appeal to the Court of Session against a decision of the Scottish Information Commissioner in respect of a request for environmental information (whether or not the requester knew at the time of making their request that the request was a request for environmental information or not – knowing exactly what is environmental information under the EIRs can be very difficult) can make a motion to the court to have their liability in expenses limited should they ultimately be unsuccesful in their appeal.

A person bringing an appeal to the Court of Session against a relevant decision of the Scottish Information Commissioner will be required to make a motion for a prohibitive expenses order as soon as is reasonably practicable after becoming aware that the appeal is defended. In essence, an appellant will need to make a motion relatively quickly after Answers to the Note of Appeal are intimated to them and any unreasonable delay in doing so is likely going to have an impact upon whether the court makes an order.

The new rules provide that proceedings are to be considered prohibitively expensive if the costs and expenses likely to be incurred by the applicant are likely to exceed the financial means of the party or where are objectively unreasonable having regard to six factors set out in the rules; including whether the applicant has reasonable prospects of success; the complexity of the relevant law and procedure; and whether the case is frivolous.

Where the court is satisfied that the proceedings are prohibitively expensive, it must make a prohibitive expenses order (in otherwords, if the test is met then the court has no discretion over whether an order is made or not). The order will limit the appellant’s expenses to the respondent to £5,000 (or such other sum as may be justified) and will limit the respondent’s expenses to the appellant to £30,000 (or such other sum as may be justified). It therefore seems as though it will be possible for a requester who intervenes in an appeal brought by the scottish public authority to apply to have their liability capped in line with the £5,000 figure rather than the £30,000. It also seems as though the court will have the discretion to cap the laibility at a lower or higher figure than £5,000 or £30,000.

It remains to be seen just how these new rules will operate in practice, but this is a good step forward. Appeals to the Inner House of the Court of Session are expensive and an unsuccessful appellant could face an expenses bill of many tens of thousands of pounds (in addition to their own legal fees). These new rules do not affect the availability of legal aid (or the rules that apply to expenses where an unsuccessful appellant is in receipt of legal aid). However, these rules will help people who are financially ineligible for legal aid, but are still financially unable to risk losing an appeal. Furthermore, legal aid can be difficult to obtain and therefore this provides a potential route for a person whose application for legal aid has been refused (although, it remains to be seen whether the timeframe for making a motion for a “prohibitive expenses order” is flexible enough to deal with situations where someone has applied for, but ultimately been refused, legal aid). It also remains to be seen how the court will deal with an application for a prohibitive expenses order where legal aid has been refused on the basis of the merits of the appeal rather than on financial eligibility (the tests do, at first blush, appear to be different with perhaps a lower threshold applying to the question of merits in a motion for a prohibitive expenses order as opposed to an application for legal aid).

These new rules might see an increase in EIR appeals to the Court of Session (indeed, we might see an appeal be brought – none have ever been brought, at least so far as I’m aware, in the almost 14 years that people have been able to request environmental information in Scotland). People who are unable to financially risk losing an appeal will now be able to know what their liability in expenses will be in advance of expenses mounting up. This could have financial implications for the Scottish Information Commissioner if his office starts to see an increase in litigation and also for Scottish public authorities who may ultimately decide to become involved in appeals brought by requesters against decisions of the Commissioner.

Alistair Sloan

If you would like advice or assistance in respect of requests for environmental information or any other information law matter, you can contact Alistair Sloan on 0141 229 0880 or by E-mail.

Update 28/11/2018 – The Scottish Information Commissioner’s office has advised that there was one appeal brought against one of their decisions relating to a request for environemntal information. The appeal was brought by a public authority and was abandoned by the public authority.

Scottish Information Commissioner’s 2017/18 Annual Report

Friday 28 September 2018 was International right to Know Day, a day designed to highlight the public’s right to know and to campaign for FOI laws. Scotland has had Freedom of Information laws in place since January 2005 and a similar statutory regime entered into force on the same date for information held by UK public bodies. The Scottish Information Commissioner used International right to Know Day to launch his office’s annual report [pdf].

In 2017/2018 the Commissioner’s office received a total of 507 appeals, up from 425 in 2016/2017 (but not the highest number received in any one year). Of the appeals that were received the vast majority (75%) were classed by the commissioner’s office as coming directly from individuals with the media accounting for 11% and commercial/private enterprises accounting for 3%.

In terms of which public authorities have their responses appealed to the Commissioner; local authorities still make up the largest percentage (although there was a fairly significant decrease in the percentage share of appeals from the previous year). Local authorities are followed the Scottish Government and its agencies and the police.

30% of the appeals made to the Scottish Information Commissioner were deemed to be invalid appeals; that is to say they were appeals that the Commissioner’s office could not investigate. The annual report reveals that among the most common reasons why an appeal was not valid are that the applicant had not made a request for review to the Scottish public authority (an appeal can only be made to the Scottish Commissioner after the Scottish public authority has reviewed its initial decision or failed to carry out a review of its initial decision that has been requested) and that the timescales for making FOI appeals within the Act had not been met. Requesters should remember that they should make requests for review within 40 working days of the date that the authority issued its response or the date that it should have responded where no response has been received. Furthermore, it should be remembered that appeals to the Commissioner should normally be made within 6 months of the date on which the authority responded to the review request or, where no response has been recieved to a request for an internal review, within 6 months of the date that the authority should have responded to the internal review.

Failure to respond appeals, that is an appeal which concerns a failure by an authority to respond to a request and/or request for review, continue to be a problem. In 2017/18 19% of the appeals handled by the Commissioner concerned a failure to respond; this is down slightly from the 20% it was in 2016/17, but is up from the 16% figure in 2015/16. These are fairly clear-cut appeals as an authority has either responded within the statutory timeframe not and they should be appeals that authorities can avoid fairly easily. No authority can be perfect 100% of the time and there will be cases where the inflexibility of the 20 working-day rule, in particular cases where the public interest is finely balanced or where third party consultation is required, will mean that breaches will occur; however, staying in contact with the requester can help to avoid these appeals even where the authority is technically in breach of the law.

Of the decisions made by the Commissioner in response to appeals under section 47 of the Freedom of Information (Scotland) Act 2002, 65% resulted in a decision which was wholly or partially in favour of the requester.

Some interesting enforcement matters from within the report which are worthy of mention include:

  • Highland Council was issued with an Information Notice when it delayed in providing information to the Commissioner’s Office which was required in order to enable the Commissioner to investigate an appeal made to him by a requester.
  • The Commissioner also highlights that his office considered referring East Dunbartonshire Council to the Court of Session for failing to comply with one of his decisions (but in the end, it would appear that, such a step ultimately proved unnecessary).
  • The Commissioner refers to his high profile level 3 intervention in respect of the Scottish Government’s performance and culture in respect of FOI, which is still ongoing.
  • A less profile level 3 intervention by the Commissioner was the ongoing intervention in Police Scotland, which is now in the monitoring phase after an action plan was agreed between Police Scotland and the Commissioner. There were concerns about searching for and locating information to respond to information requests as well as concerns around record-keeping.
  • Two independent schools (which had become subject to FOI following the last extension of the Act by the Scottish Ministers) were subject to level 4 interventions where they had failed to adopt publication schemes as required by section 23 of the Freedom of Information (Scotland) Act 2002.

The Commissioner’s report makes reference to three Court of Session cases in respect of decisions that it had made, one of which Inksters were instructed in by one of the parties. The number of appeals against decisions of the Scottish Information Commissioner remain particularly low (both appeals taken by requesters and Scottish public authorities); whether this is because the Commissioner’s office is doing a good job in terms of interpreting the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004, or whether it has more to do with the significant costs to be faced by requesters and Scottish Public Authorities who decide to take an appeal to Scotland’s highest civil court is a matter which is very much open for debate.

There is lots of other useful information with the Commissioner’s annual report, but at the risk of this blog post becoming too unwieldy I shall leave it there.

Alistair Sloan

Whether you are a requester or a public authority we can provide you with advice and assistance on Freedom of Information matters. Contact Alistair Sloan on 0141 229 0880 or you can send him an E-mail. You can also follow our dedicated twitter account on information law matters.

 

Personal Data and FOI: to anonymise or not to anonymise

I recently wrote a blog post covering the release of third party personal data under freedom of information laws in both Scotland and the rest of the UK. Requests which seek the release of third party personal data, or where information within the scope of a FOI request constitutes the personal data of a third party, are the most common examples of where freedom of information and data protection overlap; however, they are not the only examples.

On Friday of last week, the Herald contained a piece covering calls which had been made to anonymise FOI requests which are sent to government advisers. These calls follow on from some high profile disagreements between the Scottish Government and journalists. The allegations levelled against the Scottish Government is that ministers and their advisers are having undue influence over what information is and is not released under the Freedom of Information (Scotland) Act 2002; in particular where the request comes from a journalist. The Scottish Information Commissioner is currently carrying out an “intervention” which is looking at this matter alongside one which has a wider remit in relation to the Scottish Government’s handling of FOI requests. It is understood that the Commissioner’s Office will report its findings of these interventions in the next month or so.

These wider issues are not, however, the focus of this blog post. Rather, the focus of this blog post relates to the call to anonymise FOI requests in this way and whether this is a practice that public authorities ought to be following in any event.

The General Data Protection Regulation and the Data protection Act 2018 now govern how organisations, such as public authorities, process personal data. Reducing the data protection framework down to its most basic requirement, data controllers should not be processing the personal data of a data subject unless they have a lawful basis to do so.

When a public authority circulates a request for information, or a proposed response to a request for information, that is not stripped of the personal data of the requester then that would amount to the processing of personal data of which the requester is the data subject. What is the lawful basis of processing in Article 6 of the GDPR which enables the public authority to process the requester’s personal data in that way?  Clearly there is a need for the requester’s personal data to be processed in order to enable the response to be issued to the requester and there will no doubt be some central record which records who has made FOI requests, what the request was for and what the outcome of the request was – if only to enable the authority to respond to an internal review, appeal to the Commissioner or appeal to the tribunal/courts.

The Authority cannot possibly have the consent of the data subject to process their personal data by circulating it around the authority. Consent cannot be inferred in the way that would be necessary in order to rely upon consent. There’s no contract with the data subject which would require the processing of their personal data in this way.

Answering a FOI request is a legal obligation on behalf of the public authority, but is it necessary to provide the name of the requester to the department(s) who need to search for the information or to an official or adviser who is having in put into the response? Probably not, especially when set against the ‘applicant blind’ way in which FOI requests are supposed to be dealt with. Is it necessary in order to protect the vital interests of the data subject or of another natural person? I’d have thought it unlikely. Again, it’s unlikely to be necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. Finally, it’s unlikely that it would be necessary for the purposes of the legitimate interests pursued by the controller or by a third party.

In short, it’s unlikely that it is necessary for those searching for the information or considering the proposed response to know who the requester is. There are, of course, situations where a different course might be required. For example, if considering refusing the request on the grounds that it is vexatious under section 14 of the Freedom of Information (Scotland) Act 2002 or section 14 of the Freedom of Information Act 2000; it will often be necessary to speak with other areas of the organisation, especially persons responsible for handling complaints. In such circumstances it would be necessary for those being consulted to know the identity of the requester, otherwise the evidence required in order to justify reliance upon the vexatious provisions could not be gathered.

In normal circumstances, public authorities should probably be removing personal data such as a requester’s name, place of work and job title (where included) from a request before sending it out to those who need to perform searches for information or those who, in accordance with the authority’s internal procedures, need to approve responses before they’re issued. Only where the identity of the requester is directly relevant to the response, such as where consideration is being given to refusing the request on the grounds that it is vexatious, should the identity of the requester be disclosed otherwise it may amount to a breach of data protection law.

It may be relevant at this juncture to look, briefly, at the applicant blind requirement of freedom of information law. The applicant blind requirement is not specifically provided for within the relevant legislation; however, it has been understood for some considerable time that requests ought to be dealt with in a way that means that they are applicant blind.  The applicant blind requirement is often largely over-stated.  There are clearly situations where the applicant’s identity will be relevant; for example is it a request for that person’s own personal data or is it a vexatious/repeated request or are you aware of any disability which may mean that you need to make reasonable adjustments in terms of the Equality Act 2010?  If public authorities applied the applicant blind requirement absolutely and slavishly, it would cause difficulties in those situations and also in others.

The purpose of the applicant blind test is to ensure that, other than where the exemption necessitates it, the requester’s identity does not form part of the decision in whether to apply an exemption or in the application of the public interest balancing test. Anonymising FOI requests when they go out to the wider organisation or to selected individuals for comment/approval assists to ensure that the applicant blind aspect of the FOI regime is also complied with.

Alistair Sloan

If you require advice and assistance in connection with a freedom of information or data protection matter then contact Alistair Sloan on 0141 229 0880. Alternatively you can send Alistair and E-mail.