Category Archives: Freedom of Information

FOISA Vexatious decision notice appealed to Court of Session

Section 14 in both the Freedom of Information Act 2000 (“FOIA”) and the Freedom of Information (Scotland) Act 2002 (“FOISA”) enable an authority not to comply with a request for information that is vexatious.  What is meant by vexatious in Section 14 of FOIA has been the subject of litigation all the way to the Court of Appeal and the leading authority is Dransfield and another v The Information Commissioner and others [2015] EWCA Civ 454; [2015] 1 WLR 5316.  However, there has not yet been any litigation in Scotland on the meaning of vexatious within Section 14 of FOISA; the Scottish Information Commissioner’s guidance [pdf] on the subject appears to draw heavily on the Dransfield decision.

Those who make a point of reading the Scottish Information Commissioner’s regular round-ups of decisions will note that the most recent one informs us of an appeal to the Court of Session against a decision of the Scottish Information Commissioner which upheld the authority’s use of Section 14.  If the appeal proceeds, it will be the first time that the Scottish courts will have considered Section 14 of FOISA.

It will be interesting to see whether the Court of Session adopts the Dransfield position, or whether it takes a different approach to vexatious requests in Scotland.  If the Court of Session does publish an Opinion, we will of course cover it on this blog.

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 0345 450 0123.  Alternatively, you can send him an E-mail.

More is less and less is more

On 30th October 2017 the First-Tier Tribunal (Information Rights) promulgated its decision in McGoldrick v The Information Commissioner; the Tribunal’s decision made two points which it is worth considering.  The request for information in question was made to HM Treasure concerning the Mersey Tunnels; the full terms of the request for information are set out in the Tribunal’s decision.

The first point relates to the use of section 12 of the Freedom of Information Act 2000 where some of the information that may fall within the scope of the request is likely to be environmental information; and the second is on the duty of a public authority to provide advice and assistance.

On the first issue, the Tribunal (at paragraph 12) states that it

“agrees with the Information Commissioner that the appellant’s request could cover both non-environment and environmental information, for the purposes of regulation 2(1)(c) but that it would defeat the purpose behind section 12 and regulation 12(4)(d) if a public authority were obliged to collate the requested information in order to ascertain what information fell under either FOIA or the EIR. We agree, therefore, that HM Treasury was correct to consider the request under section 12, even though it might include some environmental information.”

The Tribunal considers that it is appropriate for an authority to not separately identify environmental information and deal with that under the Environmental Information Regulations 2004 where there is a substantial volume of information which covers both environmental and non-environmental information.  It seems that the Tribunal is of the view that there is no need to issue a refusal notice citing Regulation 12(4)(b) [although the Tribunal refers to Regulation 12(4)(d), but this seems as though it may be a typographical error] where a request is going to exceed the appropriate limit and it is likely that there is going to be environmental information within the ambit of the request.

On the second issue, the Tribunal decided that, on the facts of the present case, that HM Treasure did not comply with its obligation to provide adequate advice and assistance and overturned the Commissioner’s decision that it had.  In this case, HM Treasure told the requester that he might like to consider refining his request by reducing the amount of information requested.  The Commissioner considered that such a suggestion was sufficient in order to discharge the authority’s duty to provide advice and assistance.

At paragraph 18 of the Tribunal’s decision it stated:

“Given the widespread nature of computer-driven searches for information in connection with FOIA requests, it is, we consider, reasonable to expect large, sophisticated organisations, such as HM Treasury, to point out to requesters how the most thorough search is likely to exceed the relevant financial limit under the Regulations made by reference to section 12, and to suggest a reformulation of the request in terms specific to computerised searches. Accordingly, if HM Treasury had asked the appellant to reformulate his request by reference to emails and documents containing both the terms “Mersey tunnel” and “toll”, the appellant may well have reformulated his request.”

The Tribunal appears to be suggesting that a large public authority may have to go a bit further than a smaller authority in order to discharge its duty to provide advice and assistance.  It appears that, in certain cases, it may be necessary for a public authority to not only suggest that a requester reformulate their request but rather to go further and actually suggest ways in which it could be reformulated; especially when computer-driver searches for information are involved.

This certainly does fit with the way in which the legislation has been drafted; Section 12(1) of the Freedom of Information Act 2000 does include “so far as it would be reasonable to expect the authority to do so” within its terms.  So, where an authority is issuing a refusal notice under Section 12 of the Freedom of Information Act 2000 authorities, especially larger ones, ought to consider whether they are capable of suggesting how a request could be refined, not just that the requester may wish to consider refining 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 0345 450 0123.  Alternatively, you can send him an E-mail.

FOI in Scotland in 2016/17: The Scottish Information Commissioner’s Annual Report

Margaret Keyes, Acting Scottish Information Commissioner chose yesterday, International Right to Know Day, to launch her office’s annual report [pdf] for the 2016/17 year.  The report finds that the public’s awareness of the right to ask and obtain information from public bodies is high, at 85%.

The Scottish Information Commissioner is a statutory office holder charged with enforcing the Freedom of Information (Scotland) Act 2002, the Environmental Information (Scotland) Regulations 2004 and the INSPIRE (Scotland) Regulations 2009.  The Commissioner’s office, amongst other things, investigates complaints made by individuals and organisations who have exercised their rights under these various pieces of legislation, but who are dissatisfied with how the Scottish public authority has handled their request.

In 2016/17 the Commissioner received a total of 425 appeals and issued a total of 252 formal, legally enforceable, decision notices.  Most of the appeals received related to requests made under the Freedom of Information (Scotland) Act 2002 with the remainder relating to requests which fell to be dealt with under the Environmental Information (Scotland) Regulations 2004.  The Commissioner received no appeals under the INSPIRE (Scotland) Regulations 2009 (although these Regulations are much more specialised and are probably only really of interest/relevance to a limited number of people).

There lies a right to appeal against formal notices issued by the Commissioner, including a formal decision notices, to the Court of Session.  A very small number of appeals were made to the Court of Session during the 2016/17 year, according to the Commissioner’s report (some of which Inksters were instructed in by the Appellant).

The Commissioner has a range of enforcement tools which can be deployed.  One of those is to issue an ‘enforcement notice’ which requires a Scottish public authority to take specified steps to comply with the legislation.  In 2016/17, the Commissioner issued four enforcement notices (which represented the first enforcement notices ever issued by the Commissioner).

Where the Commissioner reasonably requires information in order to (a) assess whether a Scottish public authority has complied, or is complying, with the legislation; or (b) assess whether a Scottish public authority has complied, or is complying, with the statutory codes of practice issued by the Scottish Ministers, the Commissioner can issue an Information Notice.  In 2016/17, the Commissioner issued 3 such notices.

The Commissioner’s decision notices are legally enforceable and where the Commissioner considers that a Scottish public authority is failing to comply with a decision notice the Commissioner has the power to certify this to the Court of Session.  The Court can ultimately, after making enquiries, deal with a Scottish public authority which has failed to comply with a decision notice as if they were in contempt of Court.  The Commissioner has never made such a certification, but the 2016/17 annual report reveals that the Commissioner came close to doing so during the course of that year.

On the whole it seems to have been a busy year for the Scottish Information Commissioner’s Office; although, the number of appeals received in 2016/17 was lower than in 2015/16.

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 0345 450 0123.  Alternatively, you can send him an E-mail.