Guidance on Freedom of Information requests issued after case involving legal services provider ‘damages’ FOI legislation on documents disclosure

Scotland’s Information Commissioner, Kevin Dunion. GUIDANCE on the validity of FREEDOM OF INFORMATION REQUESTS has been issued by Scotland’s Information Commissioner, Kevin Dunion, after the Scottish Government began using a recent judgement in Scotland’s Court of Session involving a challenge by two Scottish Councils to the Information Commissioner’s powers, to label FOI requests received by Government departments as “invalid”, thus denying access to information. The judgement, handed down by Lord Reed in Scotland’s Court of Session last year, effectively narrowed the meaning of the term “information” and defined who or what exactly is an “applicant” under Scotland’s Freedom of Information legislation.

The case in question, which has to some extent lessened the power of FOI legislation in Scotland, concerned the well known Glasgow Law firm, MacRoberts (the law firm who were involved in the censoring of Scotland Against Crooked Lawyers website on behalf of the Scottish Court Service) sent in multiple FOI requests on behalf of their [at the time] undisclosed clients Millar & Bryce to Glasgow City Council and Dundee City Council, seeking copies of statutory notices served under various building and planning legislation since 17 February 2005.

Glasgow City Council failed to reply to MacRoberts within 20 days concerning their original FOI requests, then failed to respond to MacRoberts request for a review. In the case of Dundee City Council, they refused MacRoberts FOI requests under section 33(1) of FOISA on the basis that it would substantially prejudice its commercial interests.

Lord Reed – Ruled against FOI Commissioner. In both cases, MacRoberts appealed to Scotland’s Information Commissioner, Kevin Dunion, who ruled the information should be disclosed in both cases, however, both Councils appealed Mr Dunion’s decision, which was duly overturned by Lord Reed in the Court of Session on 30 September 2009. Lord Reed’s opinion, which is highly critical of Mr Dunion’s decisions in connection with MacRoberts requests, stating the Commissioner errd in law (several times) can be viewed here : Dundee City Council & Glasgow City Council v Scottish Information Commissioner

It should be noted that MacRoberts clients, Millar & Bryce are a service provider to the legal profession, and describe themselves on their website as being “the largest of the private search firms in Scotland, supplying legal services to over 1000 firms of Lawyers, Accountants, Banks and other organisations, providing the legal profession with a modern and user-friendly web engine, storing data to minimise administration and keep track of your search requests.”

Scottish Government were eager to deploy court obstacles against FOI requests. A typical Scottish Government FOI response example of recent weeks reads : “As you may be aware, the recent Court of Session judgment - Glasgow City Council and Dundee City Council v Scottish Information Commissioner [2009] CSIH 73 (issued on 30 September 2009) - clarified that the Freedom of Information (Scotland) Act 2002 (FOISA) gives a right to information, not documents, and that information requests must identify precisely the information sought. A request is not valid if it does not, in accordance with section 8(1)(c) of FOISA, describe the information requested. As your request is a general request for copies of minutes or meeting notes and does not clearly identify the particular information you are looking for, in line with the Court of Session decision, we do not consider it to be a valid request. Accordingly, we are not obliged to respond to it. However, if you wish to rephrase your request to clearly describe the specific information, rather than documents, you are looking for we would be able to consider your request and respond in accordance with FOISA. If you need any further advice and assistance to rephrase your request, please contact **.”

To deal with such responses handed out by the Scottish Government to FOI requests here follows the Information Commissioner’s Guidance, which should be read by anyone intending to make Freedom of Information requests from now on, in Scotland.

Requests for documents, or copies of documents

* The Freedom of Information (Scotland) Act 2002 (FOISA) provides a right of access to information and not a right of access to copies of specific documents.

* Authorities should not automatically refuse requests for copies of documents, as long as it is reasonably clear from the request that it is the information recorded in the document that the applicant wants.

* Requesting a document (e.g. a report, a minute or a contract) is a commonplace way to describe information. Where it is reasonably clear that a request is for the information contained in a document, the authority should respond to the request as one properly made under FOISA.

* If a request is for a document, but it is not reasonably clear what information is being requested, the authority should contact the applicant to seek clarification.

Requests on behalf of other people

* There is nothing to stop someone making a request on behalf of another person.

* An information request must contain the name of the applicant. Requests on behalf of someone else must name the third party (the 'true applicant').

* Authorities must advise and assist applicants to make requests. If a request is made on behalf of an unnamed person, the authority should provide reasonable advice and assistance to the applicant to explain what needs to be done in order for a valid request to be made.

If an authority rejects a request as being 'invalid', it is important that the authority advises the applicant of the right to request a review and, if still dissatisfied, to make an application to the Commissioner for a decision.

Authorities are urged to read the Commissioner's detailed guidance, which can be downloaded below, and review their procedures in the light of it. In the event that an authority has determined any requests invalid on either ground following the Court of Session Opinion, the Commissioner advises the authority to review those requests and satisfy itself that it has complied with its responsibilities under the legislation, including advice about the right to request a review.

Contact the Information Commissioner’s Office you have any enquiries on this guidance, or any other aspect of freedom of information law, by email on enquiries@itspublicknowledge.info or call 01334 464610.

Download the full Guidance on validity of requests following Court of Session Opinion (Pdf - 119Kb)

An important excerpt from the full guidance document states :

If you want to see information which is held in the form of documents, you should try to make your information request as clear and precise as possible so that the public authority can identify and locate the information you want.

You are not entitled to be given copies of specific documents under FOISA but this does not mean that any requests you make for documents or copies of documents are automatically invalid. Indeed, you may need to refer to documents in describing the information you want. However, to reduce the possibility of any doubt, your request may be dealt with more quickly if you ask for the information contained in the documents rather than for the documents or records themselves.

So, instead of writing: “Please let me have copies of correspondence between the Council and Company A …” you could write: “Please let me have the information contained in the correspondence between the Council and Company A …” & Instead of writing: “I would like the contract between the Health Board and Company X…” you could write: “I would like the information contained in the contract between the Health Board and Company X …”

Happy FOI’ing, everyone … and remember, keep maintaining the pressure for organisations currently exempt from Freedom of Information legislation, such as the Law Society of Scotland, to be made FOI compliant, even if they have to be dragged, kicking & screaming into the compliance with the public interest, and the public’s right to know.

You can read more about the campaign to make the Law Society of Scotland FOI compliant HERE, paying particular attention to the Scottish Government’s apparent wish to fight any idea of making Scotland’s self regulator of solicitors more transparent & accountable under FOI legislation, here : Scottish Ministers 'will fight' disclosure of secret legal advice ordering Law Society immunity from Freedom of Information laws