Tuesday, February 02, 2010

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

Kevin Dunion Information Commissioner ScotlandScotland’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 ReedLord 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 GovernmentScottish 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


Anonymous said...

might have guessed a firm of lawyers and affiliates were behind it

maybe the outcome of the case to stop documents being published was the intention all along ?

Anonymous said...

Yes,read it at the weekend in the Sunday Herald.
Dunion should have thought longer before jumping in on the side of Macroberts.I wouldnt have.

Anonymous said...

I imagine there's much more to this than meets the eye.

Why did MacRoberts not disclose their client in the first place and why didn't Miller & Bryce do the FOIs themselves ?

Very shady the whole set up.

Anonymous said...

Witness how willing Alex Salmond's brave new Scottish Government were to block freedom of information after the lawyers had a go at it.

No more of the brave new now they are just like the rest and Scotland is no better off under this mob.

Anonymous said...

Hopefully Mr Dunnion will appeal the decision, otherwise we end up with the situation where a Council can effectively require an applicant to identify specific details within documents before releasing them.

This of course defeats the whole purpose of the FOI Act.

No doubt organizations such as the Law Society would welcome such a decision were it not for the fact that, curiously, both it and the Faculty of Advocates are allowed to remain immune from this law.

speculative said...

I wonder how much :

Dundee City Council
Glasgow City Council
Commissioner Kevin Dunion

all spent on legal advice ?

That's taxpayers money you lot are throwing away on lawyers !

http://sacl.info said...

Followed your link to the Herald on that SCS move with MacRoberts against SACL.Obviously didn't work as their website is still running !

Anonymous said...

foi is a big threat to the powers that be so they want to kill it off

Anonymous said...

So a firm that supplies info to lawyers who end up charging clients through the nose for it is behind all this ?

Anonymous said...

I thought making an FOI was free so why did Millar Bryce do it through MacRoberts ?
They must have had to pay for that.Who is daft enough to pay lawyers to do FOIs for them unless there's something in it for them too ? VERY SUSPECT.

Anonymous said...

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 …”

Good advice but without the original documents how are we supposed to know the information is accurate ?

I think Dunion should appeal or the law should be reworded immediately.

http://foisa.blogspot.com/2009/10/commissioner-makes-basic-errors-in-law.html said...

When you delve into this case it becomes clear the whole thing is a ruse to kill off foi.

Read the following at http://foisa.blogspot.com/2009/10/commissioner-makes-basic-errors-in-law.html



Anonymous said...

Comment at 3:05pm

Yes very salient point you make there.

Alex Salmond's glorified Toon Cooncil is quicker than a fox to dart down its den when us common folks ask for the info.

Anonymous said...

I think Mr Dunion should be hauled before the Parliament and questioned over this matter.His guidance is simply not enough to cure the unfortunate (if planned) result of Lord Reed's decision.

Anonymous said...

A very selfish use of FOI.

I had a look at the MB website and saw their charges for Property Enquiry Certificates.

Needless to say they will argue its competitive business but the fact is when a solicitor is provided with a pec for a client's property transaction the end charge is much higher than if the client were to go to their local authority and purchase their own pec.Trust me I know what I'm talking about as I've just found out a pec from Glasgow City Council is £68 while my solicitor seems to have billed me (from what I can work out as its very vague) £250 for the same item although his bill didn't say where he got it from and I cant find it tonight to look at.

Council's pec £68 v solicitor's pec £250 = a rip off.

Anonymous said...

It appears to me all those rotten lawyers have too much control over day2day life in Scotland.

How about wheeling out a few guillotines and setting the records straight ?

Now I bet there would be a lot of people up for that idea !

Anonymous said...

First the Law Society censor newspapers now lawyers have messed up FOI - you guys need to get a grip over these legal thugs before they destroy the rest of you !

Anonymous said...

I also wonder if Mr Dunion would have came to the same decision if Millar Bryce had made the foi requests themselves instead of being represented by a law firm known to work for the Scottish Government.

Very convenient now we are all stuck with the consequences of not being able to obtain original documents.

Thanks for nothing MacRoberts.I hope people wise up and stay clear of your firm.

Anonymous said...

another viewpoint :

Scottish Government ‘inexplicably’ refused valid FoI requests

heraldscotland staff
Published on 29 Jan 2010

The Scottish Government has been accused of routinely rejecting valid requests under freedom of information laws.

Scottish Information Commissioner Kevin Dunion said civil servants took a "restrictive view" of applications "as a matter of course".

And he said this was "wrong" and "quite inexplicable".

Mr Dunion said he has issued new guidance on how freedom of information laws should be interpreted to Scotland's top civil servant Sir John Elvidge, the permanent secretary at the Scottish Government.

The issue arose after a Court of Session ruling last year, which stated people had the right to information but not the documents which contained that information.

Despite that Mr Dunion said people should still be able to make a request for information by making reference to documents, saying: "If it is reasonably clear to the public authority what information you're looking for, they should respond to it in a perfectly normal way.

"The Scottish Government has taken a rather restrictive view of it and is now issuing, almost as a matter of course, refusal notices saying requests are invalid if they make reference to documents.

"I'm very surprised and disappointed by the line that they have taken, because up until now they have had an excellent record of supporting FoI.

"But that doesn't obscure the fact that in this case we now have ample evidence that as a matter of course civil servants are turning away perfectly valid information requests which are quite inexplicable."

Mr Dunion said the Government's stance was "hamfisted" and "misguided", adding: "I think it can be remedied by simply coming into line with the rest of the public authorities in Scotland and with my guidance, which spells out what should be done.

"It's my job to interpret what the law is and I've issued now today to the permanent secretary of the civil service in Scotland guidance asking him to change the instructions he has given to his staff so that they accord with my interpretation of the Court of Session decision."

A Scottish Government spokeswoman said the administration was "committed to freedom of information, and its underpinning principles of openness and transparent government".

She said: "The publication of the Scottish Information Commissioner's guidance on the recent Court of Session decision is welcome. The court ruling says, for example, that the FoI Act provides a right to obtain information, rather than a right to obtain copies of specific documents, and of course we are now considering the implications of the court ruling in the context of the advice from the commissioner."

The Government handled 1,200 FoI requests each year, she said, and that information was made available in the "vast majority" of these.

The Government is "looking into the important issue of whether FoI should be extended to cover private bodies delivering public services, such as private prisons, local authority trusts and contractors building and maintaining schools and hospitals".

Anonymous said...

Like you Peter I have used foi with considerable success but I dont fancy Dunion's chances if he attempts an appeal against Lord Reed.
What do you think ?

Anonymous said...

surely that useless parly can redraft the law or are they too afraid we will find out more about their expenses ??

Anonymous said...

Comment at 11.06pm

Feel exactly the same on this issue.It looks more like a commercial dispute than an foi request and therefore should not have been used to blight the act which has served everyone fairly well since its introduction.

Anonymous said...

This seems a very backward step and anyway why did your FOI Commissioner go off to war for a law firm and their service provider ?

All very odd.Is this how its always done in Scotland ?