Category Archives: Freedom of Information

We don’t hold it…oh yes you do!

Dr Ian Graham v The Scottish Information Commissioner [2019] CSIH 57 is a rare decision of the Court of Session in an appeal against a decision of the Scottish Information Commissioner, the last one coming almost 12 months ago. The case was considered by the Second Division (with the bench comprising of the Lord Justice Clerk, Lord Malcolm and Lord Glennie) with Lord Glennie delivering the Opinion of the Court.

Before a Scottish public authority is required to release information, it actually has to hold it and information will not be held, according to the law, if it is held by the Scottish public authority on behalf of a third party. The question that was considered in the appeal by Dr Graham was on this fundamental point: whether the Scottish public authority held the information or not; and in particular whether information was held by a Council on behalf of a third party (in this case, the Returning Officer).

In January 2018, Dr Graham requested the following information from Aberdeenshire Council: (1) a list of the contracts called off by the council from the framework agreement, (2) invoice and order copies for each contract, (3) payment confirmation from the council of the invoices and (4) whether the council reclaimed the input VAT on the invoice. The framework agreement in question was for the provision of electoral services to the returning officer. In terms of the contract (and of importance for this appeal), the Council assumed obligations and liabilities under the contract and also had responsibilities and liabilities in respect of the procurement process.

Whilst the Council ultimately released information in relation to parts (3) and (4) of his request, initially the Council also claimed that it did not hold this information for the purposes of the Freedom of Information (Scotland) Act 2002 (“FIOSA”). The Council’s argument was that because a returning officer, although an official from within the council, was legally a separate entity from the rest of the council when acting in their capacity as returning officer, they only held the information on behalf of the returning officer and not in their own right. Dr Graham was dissatisfied with this and applied to the Scottish Information Commissioner for a decision on whether the Council had complied with its disclosure obligations under FOISA. The Commissioner upheld the Council’s decision, determining that the Council did not hold the information for the purposes of FOISA, but rather held it on behalf of the returning officer.

Counsel for the Appellant argued that the word ‘held’ was being submitted to too much scrutiny, as well as drawing attention to the spirit in which the FOISA had been made; that being to make information available to the public. Counsel contended that a liberal approach should be taken to the interpretation of this provision. Reference was made by the Appellant’s Counsel to University and Colleges Admission Service v Information Commissioner [2014] UKUT 0557 (AAC) and Common Services Agency v Scottish Information Commissioner 2008 SC (HL) 184. Counsel for the Appellant further drew upon University of Newcastle v Information Commissioner [2011] UKUT 185 (AAC) to demonstrate how a more common-sense approach was preferable. The broader interpretation of ‘held’ was further supported  by the decision of the Upper Tribunal in Department of Health v Information Commissioner where it was held that a ministerial diary was ‘held’ by a department purely as a historical record for reference purposes. With reference to the current case, he ultimately claimed that the differentiation between the council holding the information for itself or on behalf of the returning officer was immaterial and indeed that both conditions could be fulfilled simultaneously in the present circumstances; with the fine-tooth investigation of the council election laws amounting to little more than prevaricating.

The Court allowed Dr Graham’s appeal, emphasising that “that the relevant provisions of FOISA should, so far as possible, be interpreted in a manner consistent with the policy of the Act, namely the desirability of making information available to the public, all in the interests of promoting open, transparent and accountable government.” [15] The court also held “that the words and expressions used in the Act should, so far as possible, be given their ordinary and natural meaning” and that “[t]here should be no scope for the introduction of technicalities, unnecessary legal concepts calculated to over-complicate matters and, by so doing, to restrict the disclosure of relevant information.” [15].

The Court approved of and agreed with the reasoning given by the Upper Tribunal at paragraphs 21-22 of its decision in University of Newcastle. In essence, a Scottish public authority will hold information if it has more than a de minimis interest in the information. That is to say, it will only fall outside of the scope of FOISA if it has “no (or no material) interest of its own” in the information. [18] As a result of the Court’s decision, it reduced the Commissioner’s decision and remitted the matter back to him so that he could reconsider Dr. Graham’s application in light of its opinion.

The effect of this decision should be to widen the scope of information that is available to the public under FOISA. Scottish public authorities and the Commissioner will be required to take a more holistic approach in future to deciding whether information is only held by the Scottish public authority on behalf of a third party. A more practical approach requires to be taken than simply looking at whether the Scottish public authority and the third party are separate entities from one another; consideration must be given to the underlying factual matrix. The opinion of the Court also re-iterates previous comments by the courts that the Act should be interpreted in a way that isn’t too complex or technical.

Our Alistair Sloan acted for the successful appellant in this case, instructing John MacGregor, Advocate.

Danny Cummins (Trainee Solicitor)

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

Dealing with vexatious FOI Requests

The call for views by the Public Audit and Post-Legislative Scrutiny Committee of the Scottish Parliament (“the Committee”) in respect of its post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002 (“FOISA”) ended on 21 June 2019 (having been extended a couple of times). One of the issues that came up on a number of occasions in the Committee’s discussions and evidence sessions prior to formally deciding to undertake post-legislative scrutiny of FOISA was the issue of vexatious requests. This issue has come up again in a number of responses to the call for views provided by Scottish public authorities (but certainly not all those Scottish public authorities that submitted responses).

It does seem as though Scottish public authorities, generally, are fairly poor at utilising section 14 of FOISA, which provides that a Scottish public authority does not need to comply with a request for information where it is vexatious. The Scottish Information Commissioner has also expressed the view that authorities are not utilising the available provisions within FOISA to deal with vexatious requests, such as at an evidence session before the Committee on 10 January 2019 [pdf].

The response of by Glasgow City Council [pdf] provides an example of a single requester who has made around 100 FOI requests on a related topic. It strikes me that requests from this particular requester on this particular topic could very well fall within the ambit of section 14 (although, I make that comment with only that information which is available from Glasgow City Council in its response). While the law requires the request to be vexatious, rather than the requester themselves, it is permissible to look at the requester’s conduct towards, previous correspondence with and previous requests to the authority in determining whether a particular request that has come in is, in fact, vexatious. This is something that Scottish public authorities seem to struggle with and often seem look at a particular request in isolation and not necessarily consider the wider background and context.

The leading case on section 14 of FOISA, Beggs v Scottish Information Commissioner, was only decided at the end of 2018 and therefore prior to that there was no authoritative guidance on the application of section 14 of FOISA. However, the Scottish Information Commissioner and Scottish public authorities have looked to Dransfield v Information Commissioner to help with the application of section 14 of FOISA. In Beggs the Inner House of the Court of Session essentially approved of the decision of the Court of Appeal in Dransfield. The decision in Beggs is, subject to any appeal to the UK Supreme Court, binding authority on the operation of section 14 of FOISA. Scottish public authorities can therefore look to both the Judgment of the Court of Appeal in Dransfield and the opinion of Lord Brodie in Beggs for guidance on section 14 of FOISA and how to apply it in appropriate cases.

The Court of Appeal and the Inner House of the Court of Session have both stressed that the right of access to information is a constitutional one and so the bar for engaging section 14 is a high one. However, it is clear that the bar is not so high so as to be impossible to meet in practice.

Section 14 of FOISA allows Scottish public authorities to consider matters that would not normally be relevant to FOI requests, such as the identity of the requester and their motives. Scottish public authorities (and indeed, public authorities working under the Freedom of Information Act 2000) should remember that they can look at a requester’s motives; for example, a malicious motive can be an indicator that a request is vexatious (but is not necessarily evidence that the request is, in fact, vexatious): Beggs at paragraph 33. Equally, the absence of a malicious motivation is not necessarily evidence that the request is not vexatious.

A person’s previous dealings with an authority can be relevant as can their other FOI requests: if a person is showing signs of obsessive behaviour, then that could be an indicator that the request is vexatious. The authority needs to look at the request objectively, in the surrounding circumstances, and come to a judgement as to whether the request is vexatious. However, it will need to remember to have evidence to support its conclusion in case the requester makes an application to the Commissioner challenging the application of section 14 by the authority.

Perhaps there is concern within authorities about getting it wrong and having a section 14 refusal overturned by the Commissioner; however, we can only learn from doing and from our mistakes. There are 96 decision notices on the Scottish Information Commissioner’s website relating to section 14(1) of FOISA (the specific part of section 14 that deals with vexatious requests). This number does seem to be rather small given that wide opinion coming from Scottish public authorities over many years that vexatious requests are a particular problem. Over 50 of those decision notices find entirely in favour of the authority and a good number are classified as partially upheld (many of which appear to have included technical defaults by the authority). It is clear that where a Scottish public authority appropriately deploys section 14 in respect of vexatious requests, the Commissioner will uphold that decision.

It certainly does seem to be the case that Scottish public authorities are reticent to utilise section 14 of FOISA. Perhaps, it is because they do not fully understand the scope of section 14 or are unsure about its precise application – it can potentially be used in a wide variety of circumstances. Scottish public authorities could certainly be using section 14 much more frequently than what they are at present and they should seek to become much more confident in using section 14. Indeed, a majority of the examples that I have seen emanate from Scottish public authorities, which they put forward as examples of problems that they are facing which cannot be dealt with by the application of section 14; most probably could, in fact, have been dealt with by the application of section 14. The same level of reluctance is not obviously present in respect of those authorities subject to the Freedom of Information Act 2000.

Alistair Sloan

If you are a requester or a public authority who would like advice or assistance in regards to freedom of information law then contact our team on 0141 229 0880 or by E-mail. We are also able to assist with a range of other information law matters.

Cart before Horse

E.ON UK Plc v The Information Commissioner and Fish Legal [2019] UKUT 132 (AAC) is an appeal to the Upper Tribunal (Administrative Appeals Chamber) concerning an issue that doesn’t come up very often in information rights litigation: the Information Commissioner’s power to issue an Information Notice under section 51 of the Freedom of Information Act 2000 (“FOIA”).

The background to this appeal is a little convoluted, but of importance to understanding the issues and the decision of the Upper Tribunal. The solicitor of Fish Legal made a request for information to E.ON UK Plc seeking information from it. The information sought was environmental information and so the request fell to be dealt with under the Environmental Information Regulations 2004 (“EIRs”). E.ON UK Plc disputed that it was not a public authority and so did not issue a substantive response to the request. It became clear during the Commissioner’s involvement that the position of E.ON would be that, if it were a public authority, it did not hold the information.

As there was a dispute as to whether E.ON is a public authority, the Commissioner determined that she needed to resolve that issue first. If E.ON is not a public authority, then she had no jurisdiction to determine whether it held the information in question. After some exchange of correspondence between the Commissioner’s case officer and E.ON, an information notice was served on E.ON. The purpose of this Notice, we learn from the decision of the Upper Tribunal, was to assist the Commissioner in determining whether E.ON UK PLC is a public authority for the purposes of the EIRs.

E.ON appealed to the First-Tier Tribunal (Information Rights) against the information notice. It did so on two grounds: firstly, the decision to issue the information notice was unlawful because, as E.ON did not hold the requested information, it was pointless, disproportionate and academic. Secondly, the information requested in the notice was wholly or mainly in the public domain and so it was unlawful to issue an information notice to require E.ON to provide the information.

The First-Tier Tribunal heard argument and issued what it described as a decision on a preliminary issue, inviting written submissions from the parties as to how the remainder of the appeal should progress. E.ON appealed to the Upper Tribunal and its grounds of appeal are set out by the Upper Tribunal in paragraph 4 of its decision.

What is of most interest in this appeal was the position adopted by E.ON as to the Commissioner’s powers to determine whether the information was held or not. E.ON argued that the Commissioner could consider  whether a purported public authority held the information requested, before deciding whether it was reasonable and proportionate to issue an information notice seeking information to assist the Commissioner in deciding whether the purported authority is, in fact, a public authority. E.ON argued, essentially, that where a purported authority did not hold the information it was unlawful, disproportionate and unreasonable for the Commissioner to issue an Information Notice requiring a body to provide her with information to assist her in determining whether the purported authority was, in fact a public authority.

This argument was, ultimately, given short shrift by Upper Tribunal Judge Markus QC. The Upper Tribunal Judge considered that this “position would lead the Commissioner to a dead end” [47] as “[t]here is no statutory provision which could accommodate the outcome for which [Counsel for E.ON] contended, that being a decision by the Commissioner not to address the public authority question because there was no point in doing so.” [47] The outcome of the position advanced by E.ON before the Upper Tribunal would have simultaneously meant that the Commissioner could not have issued a decision notice under section 50 of FOIA that no information was held, because there was no decision that she had jurisdiction; she could not issue a decision on whether she had jurisdiction because it was pointless, and in any event she lacked the information she required to do so and she could not have refused a to make a decision under section 50 because none of the circumstances in section 50(2) of FOIA applied.

Upper Tribunal Markus QC remarks, paragraph 49 of her decision, that what the First-Tier Tribunal decided at paragraph 24 of its own decision was not that it was unable to decide any matter not determined by the Commissioner, but rather that the question whether the information requested by the applicant was held by the authority was irrelevant in an appeal against an information notice which was directed at establishing whether the Commissioner had jurisdiction. The question as to whether the information was held would be decided, if at all, if the Commissioner had jurisdiction to do so.

E.ON also tried to argue that the section 50 application by the applicant should be treated as being frivolous or vexatious by the Commissioner (thus giving her a reason under section 50(2) of FOIA to refuse to issue a decision notice). This, again, was also based upon E.ON’s position that it did not hold the information. E.ON seemed to be suggesting that it was frivolous or vexatious to press for the Commissioner to determine whether she had jurisdiction when the purported authority had demonstrated that it did not hold the information. The Upper Tribunal disagreed stating that “[t]here is nothing in this case which gets close to meeting the high standard set by vexatiousness” [61] (with reference to the principles set out in the Upper Tribunal and Court of Appeal in Dransfield v Information Commissioner and Devon CC).

What appears to have become lost in these appeal proceedings is that this is an appeal against an information notice and not an appeal against a decision notice. The Tribunal was not concerned with the substantive issue (whether or not E.ON had complied with its obligations under the EIRs, if it has any such obligation at all). E.ON, in this appeal, were getting ahead of themselves; or as the Commissioner reportedly put it “they were putting the cart before the horse”. The Commissioner had not made any decision on the issue (that would not stop the Tribunal considering it though if it were an appeal against a decision notice issued under section 50) as she had been unable to determine the preliminary issue of jurisdiction. The purpose of the Information Notice was to enable her to gather sufficient information to determine that issue.

The Commissioner simply does not, and this has been clear for some considerable time, have the power to determine a substantive issue (such as whether information is held) if she does not have jurisdiction. Where there is doubt about her jurisdiction, that matter has to be resolved by the Commissioner first. If the Commissioner is satisfied of her jurisdiction she will go on to consider the substantive issue (and the two matters will be dealt with in one decision notice dealing first with jurisdiction and then the substantive issue); if she determines that she has no jurisdiction she will issue a decision to that effect which can then be appealed in the normal way.

It remains to be seen whether the Commissioner’s Information Notice will survive; the First-Tier Tribunal has yet to consider all of the matters set out in the initial appeal by E.ON. Now that the Upper Tribunal has disposed of this appeal, the First-Tier Tribunal will now need to hear and determine the rest of the appeal.

Alistair Sloan

If you require advice and assistance with a Freedom of Information matter, or any other information law issue, contact our team on 0141 229 0880 or E-mail info@inksters.com.

Post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002

The Public Audit and Post-Legislative Scrutiny Committee of the Scottish Parliament is currently calling for views on the operation of the Freedom of Information (Scotland) Act 2002 (“FOISA”) as part of its post-legislative scrutiny of FOISA. I have submitted a response to the Committee, which addresses five issues in respect of FOISA (and also touches, where applicable, on the Environmental Information (Scotland) Regulations 2004 (“the Scottish EIRs”)). You can read my full submission here [pdf], but below is a summary of what I have discussed in my submission to the Committee.

The first thing that I have suggested is a possible change to the code of practice issued by the Scottish Ministers under section 60 of FOISA to deal with concerns raised about the processing of personal data in connection with FOI requests. I have covered this issue in more detail on this blog before. In my response I have suggested that this issue is probably best addressed through the code of practice rather than through a change to the wording of the Act.

I have also suggested that any concerns around a failure to make or keep records would not be an appropriate issue to address in the context of FOISA; however, it might be worthy of its own legislative project in the event that Parliament considered that this was an issue. This arises out of concerns expressed that FOISA has resulted in records not being made or kept so as to avoid the need to disclose them. I argue that it is inappropriate to bring this into FOISA; as FOISA has a different focus. FOISA is about giving a right of access to information that exists at the time it is requested and not about what information should be kept by Scottish public authorities. Furthermore, to introduce potentially detailed and technical rules around the making and keeping of records into FOISA could over-complicate FOISA.

I have also suggested that section 48 of FOISA be repealed; or, at least, amended. There is no equivalent provision within the UK Act and there doesn’t seem to be any issues under that legislative scheme that would suggest an outright ban on the Scottish Information Commissioner being able to look these requests is appropriate. Furthermore, it has a significant effect on requesters appeal rights and the alternatives available are not a proper substitute for an investigation by the Commissioner. In this context I also raised concerns about whether section 48 is compatible with our EU obligations as it also extends to requests made under the Scottish EIRs.

I have also suggested amending section 56 of FOISA so that appeals against decisions no longer go directly to the Court of Session. For quite a long time I have considered that this appeal route is prohibitive to most requesters and also to Scottish public authorities (especially smaller authorities with less in the way of financial resources). I’ve also suggested that this has affected the development of the law and Scotland lacks the same level of judicial authority in terms of what different parts of FOISA mean that exists under the UK Act. I’ve suggested, at the very least, appeals should be made to the new Upper Tribunal for Scotland in the first instance. I contrasted the Scottish appellate structure with that which applies under the UK Act. I have also suggested that the present appellate structure may mean that the law doe snot comply with EU law in respect of the Scottish EIRs.

Finally, I’ve also suggested that FOISA be updated to take account of advances in technology and in particular to allow the Scottish Information Commissioner to serve formal notices by E-mail rather than requiring them to be served by recorded delivery post (as is currently the case).

Alistair Sloan

If you would like advice or assistance in respect of freedom of information matters or any other information law matter then contact Alistair Sloan on 0141 229 0880 or by E-mail. You can also follow our dedicated information law twitter account.

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.