Tuesday, October 01, 2013

SECRET SCOTS : FOI Chief Rosemary Agnew voices transparency concerns as Scottish Public Authorities fail on Freedom of Information requests

Information Commissioner Rosemary Agnew raises concerns over FOI failures. SCOTTISH Public Authorities are failing to respond to Freedom of Information requests on time, says Scotland's Information Commissioner Rosemary Agnew in her 2012-2013 Annual Report published today. The report reveals a 14% rise in appeals to the Scottish Information Commissioner’s office during the last year with 27% of those cases relating to failures by public authorities to respond to FOI requests.

Speaking at the launch of her Annual Report, Commissioner Rosemary Agnew revealed that there was a 14% rise in appeals to her office in 2012/13, and that 27% of those appeals related to a failure by the public authority to respond. This is the highest proportion of such appeals to date. Under Scottish FOI law, public authorities have a legal duty to respond to the requests they receive within 20 working days.

The publication of the report coincides with new research which reveals that only 49% of the Scottish public are confident that they would receive an FOI response within 20 working days, with only 10% stating that they would be "very confident" of a response.

Information Commissioner Rosemary Agnew said: "These findings concern me. Eight years on from the introduction of FOI, we would expect authorities to be more effective at handling requests, not less so. When they don't respond, authorities fail to respect people's legal rights to information: information which can be extremely important to individuals and communities. By contrast, authorities that perform well take a customer focussed approach, respond promptly and engage with requesters.

"A failure to respond can also harm public perception of FOI. While many FOI requests are answered on time and a lot of information is provided, the research findings reveal that this is certainly not the public's perception.

"Scottish public authorities that are falling short should take steps to address their performance as an immediate priority. In doing so, they should also remember that failing to respond doesn't make requests go away, but just creates unnecessary extra work and increases costs. Failure to respond generates complaints, review requests, and appeals to my office, and damages a public authority's reputation. The most efficient option is to get it right first time."

As those who make FOI requests and many in the media will know, some of the most persistent offenders in Scotland are local authorities, Departments of the Scottish Government, NHS Scotland trusts and others all eager to cover up internal scandals, the persisting, endemic jobs for the boys culture, the pernicious abuse of vulnerable individuals and widespread waste of public funds including large, sometimes secret pay-outs to top public officials the details of which only emerge after months of wrangling over the terms of FOI replies, requests for reviews and a possible appeal to the Information Commissioner.

Key public authorities in charge of the justice system are well known to journalists as some of the worst offenders, which include Scotland’s prosecution service the Crown Office & Procurator Fiscal Service (COPFS) who appear to be operating a policy of regular delay in response to FOI requests.

It has been found in many cases brought to the attention of the media that Crown Office staff have persistently engaged in expanding the required time to reply to FOI requests by weeks, even months in some cases, while in others, regular refusals to hand out information have become a staple diet of Lord Advocate Frank Mulholland’s £100million a year Crown Office.

Commenting on the Information Commissioner’s report, a Scottish government spokeswoman said: "Scotland has the most robust freedom of information regime in the UK, with a transparency system that sets an example for other nations to aspire to.”

"In 2012 we received over 1,900 FoI requests - the highest number on record - and we are on course to receive even more in 2013. We strive to respond on time to all cases, and the number of technical appeals we receive has decreased since the end of March 2013."

She added: "Our commitment to proactive publication and sharing of information with the public is enshrined in legislation."

Scottish Information Commissioner Rosemary Agnew has also announced today she is planning to lay a Special Report for the Scottish Parliament exploring such failures in the spring.

The Commissioner's 2012/13 Annual report: Upholding the right to know reveals that:

The number of FOI appeals increased by 14% over the last year, to 594 appeals.

564 cases were closed, a 9% increase on the previous year.

The Commissioner found completely in favour of requesters in 37% of cases and completely in favour of authorities in a further 37%. The remainder were partially upheld.

60% of appeals were made by members of the public

43% of appeals related to local government bodies and 31% related to the Scottish Ministers or the Scottish Parliament.

Enquiries to the Commissioner rose by 8% last year.

The report also contains examples of how FOI has been used by the Scottish public over the last year, seeking a wide range of information on issues relating to housing, health, transport, education and the environment.

Discussing the rise in FOI appeals, Rosemary Agnew said: "Our case volumes have continued to rise, with a 14% rise over the last year and a 49% increase in the last five years. I'm happy to report that we've been able to manage these increases through a combination of hard work and a considered review of how we conduct our business. As a result, we have closed more cases than ever and reduced the time we take to investigate appeals.

"However, I am concerned about how sustainable this position will be in the longer term. These advances have been achieved against a backdrop of decreasing resources, and if volumes continue to rise, it will pose significant challenges to my ability to enforce FOI effectively."

Appeal statistics - by Region and Sector

More detailed information on appeals received since 2005, broken down by public authority, region and sector, are available in the following spreadsheets:

2012/13 Public Authority Tables - by Sector (Excel - 597kB)

2012/13 Public Authority Tables - by Region (Excel - 1.6MB)

Technical appeals

These are appeals made following a public authority's failure to respond with the FOI Act's 20-working day timescale. 

The 2012/13 Technical appeals investigated - by authority reveals that 29% of the appeals investigated by the Commissioner in 2012/13 related to such a failure to respond.

48 comments:

Anonymous said...

Little surprise here.When it is discovered your local authority are crooks and people start asking questions or fois they clam up and nothing gets out until the press become involved.Some way to run a freedom of information set up!

Anonymous said...

What really needs to happen is the fit up of telling someone to take their case to the Court of Session (if their appeal to the Commissioner is not successful) be abolished and a tribunal constituted along the same lines of England and Wales.

If the Information Commissioner is serious about reform of foi in Scotland she will propose this immediately.

Anonymous said...

You are spot on about the crown office they took 4 months to reply to me telling me to get stuffed and that it was not in the public interest etc etc Rubbish!!!

Anonymous said...

Clearly many Public authorities in Scotland have a lot to hide, and something to fear....transparency!

I recall that Ms. Agnew's predecessor was vociferous in his calls to extend the FOI Act to include, among others, the Law Society of Scotland as reported by the DOI Team at;

http://petercherbi.blogspot.co.uk/search/label/FOI%20exemption

I wonder if Ms. Agnew can rely on his continuing support in this laudable initiative now that he has swapped places with his successor and sits on the Board of the Scottish Legal Complaints Commission.

Perhaps it is worth asking him for a comment?

Anonymous said...

and the Law Society of Scotland still not part of FOI - they must be paying someone a lot to keep them out of it

Anonymous said...

FOI is a dodge and the councils have become very adept at dodging foi requests.

When is the SIC going to take enforcement action instead of just being concerned?

Anonymous said...

So much for transparency in Scotland!

Anonymous said...

What really needs to happen is the fit up of telling someone to take their case to the Court of Session (if their appeal to the Commissioner is not successful) be abolished and a tribunal constituted along the same lines of England and Wales.

If the Information Commissioner is serious about reform of foi in Scotland she will propose this immediately.

1 October 2013 20:07

This should have been asked for in Scotland years ago.

Anyone with an ounce of intelligence knows full well it is near impossible for an individual to bring such a case in the Court of Session and even then what chance does anyone have against a judiciary such as we now know the Scottish judiciary to be as in full of vested interests and determined to resist transparency themselves.

The question is valid.Why has no SIC called for the creation of an appeals tribunal for FOI cases and whose vested interests are being served by there being no tribunal.

Also Mr Cherbi has talked a bit about vested interests of judges at the Scottish Parliament so even if such a tribunal were constituted how would it be possible to ensure a fair hearing for such cases given the entire tier of judiciary are apparently opposed to a register of their own interests.

We need an open debate about this and for the Information Commissioner to move ahead and give us the same powers of appeal as the English have been able to use and if you look at how the foi tribunal system works in England and Wales you will see it is a lot more successful than trying to get legal representation to get a hearing at the Court of Session.

Anonymous said...

"Scottish Information Commissioner Rosemary Agnew has also announced today she is planning to lay a Special Report for the Scottish Parliament exploring such failures in the spring."

Why not now instead of next year when all we will hear is the referendum debate and little legislation taking place..

Bad choice,looks likely to be buried.

Anonymous said...

Anonymous said...

and the Law Society of Scotland still not part of FOI - they must be paying someone a lot to keep them out of it

1 October 2013 21:49

I doubt the Law Society pays one single penny to be kept out of reach of freedom of information.
After all they can rely on their friends in the judiciary to block any attempt to bring them into foi and I am sure they will have plenty dirt on politicians who might just get the idea..

Diary of Injustice said...

#Anonymous @ 2 October 2013 13:56

Good points regarding the appeals tribunal approach which will be looked into and covered in future articles ...

If you feel the Commissioner should call for equivalent avenues of appeal as currently exist in England & Wales, please raise this with your MSP and also with the Information Commissioner's office so there are foi'able records of such requests.

Please remember to keep the media informed of any progress on this or email Diary of Injustice at scottishlawreporters@gmail.com

Anonymous said...

Good luck with changing the foi appeals system - there are just too many vested interests with an interest in keeping it as it is - as in out of reach of everyone but law firms lawyers and public authorities with plenty of taxpayers cash to sling at lawyers to fight you.

Anonymous said...

Commenting on the Information Commissioner’s report, a Scottish government spokeswoman said: "Scotland has the most robust freedom of information regime in the UK, with a transparency system that sets an example for other nations to aspire to.”

"In 2012 we received over 1,900 FoI requests - the highest number on record - and we are on course to receive even more in 2013. We strive to respond on time to all cases, and the number of technical appeals we receive has decreased since the end of March 2013."

She added: "Our commitment to proactive publication and sharing of information with the public is enshrined in legislation."

Obviously a lot of rubbish from the Scottish Government and I should know because I had 3 fois completely ignored and they dont even bother to answer when I ask what happened.

Just imagine how bad it will get after independence actually I can see Salmond abolishing foi because it wont be in the interests of independent harmony or some other crap.

Anonymous said...

I doubt the Law Society pays one single penny to be kept out of reach of freedom of information.
After all they can rely on their friends in the judiciary to block any attempt to bring them into foi and I am sure they will have plenty dirt on politicians who might just get the idea..

2 October 2013 15:48
Lord NO-NO and buddies will keep the Law Society out of foi harms way

Anonymous said...

Is this one of those Scotland Act moments Lord Gill used to his advantage to refuse to attend the Petitions Committee?

Why was the tribunal part of the FOI (Scotland) Act swapped for a hopeless trip to the Court of Session?

Note for the tribunal in England it is also run by the judicial vested interests so there is still limitation on who can really be trusted

http://www.justice.gov.uk/tribunals/general-regulatory-chamber#

Information rights

Hears appeals from notices issued by the Information Commissioner under:

Freedom of Information Act 2000 (FOIA)
The Environmental Information Regulations 2004 (EIR)
INSPIRE Regulations 2009 (INSPIRE)
Data Protection Act 1998 (DPA)
Privacy and Electronic Communications Regulation 2003 (PECR)
Data Protection Monetary Penalty Regulations 2010 (DP Monetary penalties)

For certificates on grounds of national security issued by Ministers of the Crown the appeal must be transferred to the Administrative Appeals Chamber of the Upper Tribunal on receipt.

Register of cases http://www.justice.gov.uk/downloads/tribunals/information-rights/current-cases/current-cases.pdf

If the Commissioner has ordered a public authority to release information and an appeal is received, this will be delayed until after the tribunal’s decision.

It is sometimes necessary for the tribunal to see disputed information before deciding whether it should be disclosed. Read http://www.justice.gov.uk/downloads/tribunals/information-rights/how-to-appeal/practicenote-closed-material.pdf

Anonymous said...

Seems everything in Scotland is screwed up law and now Freedom of Information.Do you actually have people read these laws before they are passed or what??What a hopeless situation you lot are in.

Anonymous said...

What Ms Agnew's report fails to mention is the vindictiveness of public authorities after you foi them.Example foi-ing the Police may well get you on a blacklist and you and your family followed and harassed.This has happened to a family who asked fro details about an assault charge against their son dropped after it became clear he was misidentified by a Police officer.Foi-ing your local authority also carries the same risks - they put you on a blacklist and start a surveillance on your whole life and no need to laugh at what I am saying because this was done against me and I found out using foi they targeted me using the Ripsa spy powers after I asked for information on a public contract that went to a relative of the council chief executive.I am sure the commissioner has been told about these kinds of things in other cases so why not come out and say something or is it better to put it in the papers and disgrace them all?

Diary of Injustice said...

#Anonymous @ 3 October 2013 12:47

Headlines do bring about change so it may be appropriate to give your case and the other you mentioned some media coverage.

If anyone who is making a Freedom of Information request to a Scottish Public Authority feels they are being mistreated or has evidence indicating they are being put on "blacklists" or are being discriminated against in any way it would be advisable to involve the media as soon as possible.

If any claims of intrusion into personal life or the occurrence of discrimination as a result of an individual making Freedom of Information requests have been made to the Commissioner, similarly this should also be handed to the media.

Diary of Injustice is always open to looking at such cases.

Anonymous said...

It would not surprise me one bit to learn people who make foi requests are targeted by those they are seeking the information from.

This is too important to leave in the comments section get this into print asap and a good investigation on your blog so we can all read about it.

Anonymous said...

If the Scottish Information Commissioner has been told of instances of people being personally attacked for raising foi with public bodies we need to hear about it and what has been done about it!

Anonymous said...

The FOI tribunal v Court of Session debate is a bit of a distraction from the real issues here and do not forget the tribunal in England and Wales has been overruled in the past.

A colleague of mine worked on the HRH Prince Charles letters story where the Attorney General vetoed the release of HRH's letters to Ministers http://www.telegraph.co.uk/news/uknews/theroyalfamily/10169471/Ministerial-veto-over-FOI-letters-is-troublesome-and-constitutional-aberration-says-Lord-Chief-Justice.html

In England & Wales the Govt clearly had a vested interest in the papers remaining secret,as to a certain extend do the judges who are where they are because of Royal appointment and the swish of judicial ermine as one of your msps put it so well

not going to paste the whole story but this is the important part:

“The problem is inherent in the statutory override or veto vested in minsters and the Attorney General by section 53 of the Freedom of Information Act 2000.”

Lord Judge expressed concern that the veto was so powerful that it could even be used to over-turn a decision of the Supreme Court, Britain’s most senior court.

He said the legislation “simply vests power in a cabinet minister to override the decision of a court without further recourse to the legislature.”

There was judicial criticism of the Attorney Gen's use of the Ministerial veto but as this had already been upheld,you may easily take that as an attempt by the judiciary to extricate themselves from a situation where vested interests were seen to prop up vested interests.We did.

In Scotland I imagine the Court of Session judges have the same vested interest in information remaining secret, or at least not allowing FOI appeals to succeed which may start a precedent against public authorities.After reading the Sunday Mail reports of the Lord President refusing to attend the Scottish Parliament and his arrogance towards a register of interests I have no trouble believing judicial impartiality no longer exists.

Anonymous said...

Anonymous said...

I doubt the Law Society pays one single penny to be kept out of reach of freedom of information.
After all they can rely on their friends in the judiciary to block any attempt to bring them into foi and I am sure they will have plenty dirt on politicians who might just get the idea..

2 October 2013 15:48
Lord NO-NO and buddies will keep the Law Society out of foi harms way

2 October 2013 21:55

Dont forget MacRoadkill 0 he could make the Law Society obey foi in an instant but no because as we all know lawyers look after lawyers!

Anonymous said...

Worrying to hear people are being intimidated just because they are using freedom of information to find out the truth,have you any more advice on how to avoid this?

Anonymous said...

I concede what I am about to say is slightly off topic,I cannot help but admire the way you used freedom of information to expose Fergus Ewing taking orders from the Law Society about the SLCC complaints levy.
http://petercherbi.blogspot.co.uk/2010/04/ministerial-interference-as-fergus.html
http://petercherbi.blogspot.co.uk/2010/09/emails-reveal-law-society-chief.html
http://petercherbi.blogspot.co.uk/2010/07/undue-influence-freedom-of-information.html

Anonymous said...

Good article also good debate I did not know about this tribunal difference between Scotland and England so thanks to whoever posted this.Like others I wonder why this tribunal was prevented from coming to Scotland and we have to make do with the judges direct rule?

Anonymous said...

Anonymous said...

Seems everything in Scotland is screwed up law and now Freedom of Information.Do you actually have people read these laws before they are passed or what??What a hopeless situation you lot are in.

3 October 2013 01:33

Didn't you know?

The person most likely to stick a knife in the back of a Scotsman is another Scotsman.

Anonymous said...

Compared to Agnew's report the comments are a real eye opener!

Anonymous said...

I don't know how anyone in Scotland can say with a straight face there is any transparency or freedom of information with these headlines about the judges covering up their own interests and criminal records to boot.

Really shocking stuff and probably much worse/more sinister in England.

Anonymous said...

Interesting comment yesterday at 15:56

Regarding the Telegraph article and the Dominic Grieve's veto on the Black Spider memos - "Lord Judge" forgot to argue the cause for independence of the legal system and judiciary from the Executive.

Or is this fallacious argument of judicial independence only brought forth when the judges themselves face serious questions regarding their conduct..

Diary of Injustice said...

#Anonymous @ 3 October 2013 18:45

Individuals making FOI requests do not need to provide their identities and full address in the course of making an FOI request although if an appeal is to be taken to the Scottish Information Commissioner, identification is a requirement.

If people feel they are at risk from making an FOI request it may be advisable to use the Whatdotheyknow website :

http://www.whatdotheyknow.com/
which also contains many details of FOI requests made by others.

Also please keep the media informed of requests and results as it could make a good newsworthy article.

Anonymous said...

I will never associate Scotland with freedom of information or fair justice again after reading your blog!

Anonymous said...

Anonymous said...
You are spot on about the crown office they took 4 months to reply to me telling me to get stuffed and that it was not in the public interest etc etc Rubbish!!!

1 October 2013 20:46
xxxxxxxxxxxxxxxxxxxxxxx

Crooks of the highest order, there is no doubt!

Anonymous said...

Anonymous said...
and the Law Society of Scotland still not part of FOI - they must be paying someone a lot to keep them out of it

1 October 2013 21:49
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

If the Law Society of Scotland was subject to FOI, then surely several of their Office Bearers would be detained at Her Majesty's Pleasure?

Anonymous said...

Anonymous said...
Good article also good debate I did not know about this tribunal difference between Scotland and England so thanks to whoever posted this.Like others I wonder why this tribunal was prevented from coming to Scotland and we have to make do with the judges direct rule?

3 October 2013 20:36
/////////////////////////////////////

Because the Scottish Judges have totalitarian power in Scotland, to make up the rules as they see fit?

Anonymous said...

Anonymous said...
Anonymous said...

Seems everything in Scotland is screwed up law and now Freedom of Information.Do you actually have people read these laws before they are passed or what??What a hopeless situation you lot are in.

3 October 2013 01:33

Didn't you know?

The person most likely to stick a knife in the back of a Scotsman is another Scotsman.

3 October 2013 21:47
.,.,.,.,.,.,.,.,.,.,.,.,.,., v v vcvcv

Should this not read,' The person most likely to stick a knife in the back of a Scotsman is a Scottish lawyer' ?

Anonymous said...

#Anonymous @ 3 October 2013 18:45

Individuals making FOI requests do not need to provide their identities and full address in the course of making an FOI request although if an appeal is to be taken to the Scottish Information Commissioner, identification is a requirement.

If people feel they are at risk from making an FOI request it may be advisable to use the Whatdotheyknow website :

http://www.whatdotheyknow.com/
which also contains many details of FOI requests made by others.

Also please keep the media informed of requests and results as it could make a good newsworthy article.

4 October 2013 14:30
::::::::::::::::::::::::::::::::::::

This is clearly so that the Law Society propaganda Agents can brief against the person making the FOI complaint, so that they are put on a black-list by the Law Society vengeance hit squad?

Anonymous said...

The statement from the Scottish Government is just the usual lack of facts and obfuscation out every time they are caught out.Not that it takes much to catch them out even with foi.

Anonymous said...

LSoS meeting hears a solicitor with some standing suggest it is time to end the Law Society's 20 year hate campaign against Peter Cherbi.Discussion goes quiet.Later same solicitor ends up with an off the record threat of an investigation into his firm.

Are you aware?Any comment on this?

Diary of Injustice said...

Several comments relating to FOI requests, named individuals and public bodies have not been published but will be looked into.

#Anonymous @ 4 October 2013 13:01

The phrase "Judicial Independence" ... even though such independence is essential for a democracy and is certainly supported by Diary of Injustice, has become an excuse for judicial arrogance, vested interests and gold plated pensions.

How many more times Lord Gill can get away with crying wolf remains to be seen ...

#Anonymous @ 7 October 2013 19:31

The Law Society's "hate campaign" does not seem to have done much good ... probably been expensive and unproductive for the legal profession too ...

Anonymous said...

The phrase "Judicial Independence" ... even though such independence is essential for a democracy and is certainly supported by Diary of Injustice, has become an excuse for judicial arrogance, vested interests and gold plated pensions.

SPOT ON PETER!!

Anonymous said...

Well look at it this way.

The Law Society's hate campaign against one man has ensured today there is more knowledge available about how to avoid crooked lawyers and their ploys due to all the coverage you and the Sunday Mail have given them than has ever existed before under the Law Society's control of the media.

Whoever is behind the Law Society's hate against clients has done us all a good service and hope it has cost lots of lawyers a lot of their own money and self promoted reputations!

Anonymous said...

If anyone is bothering to watch the news with all the state hacking going on I would not be surprised to hear anyone doing an foi request is automatically spied on by the state

Anonymous said...

I think that report you linked to only tells a little of the foi story and we will never get to know the real scandals and what goes on unless people come forward as you say and go to the newspapers - and no wonder the govt are trying to censor the press now because all these secrets are coming out!

Anonymous said...

Should this not read,' The person most likely to stick a knife in the back of a Scotsman is a Scottish lawyer' ?

5 October 2013 13:20

Not at all.
From what I hear there are plenty of these embittered clients sticking knives in each other just now.
I dare say DOI and the press will catch up with them soon enough.

Anonymous said...

oh that last comment is very interesting.

Hope to read more about this soon.



Anonymous said...

From what I heard today one of these self proclaimed victims has been taking the details of other clients cases for his own use.Time for a DOI investigation.

Anonymous said...

If these disgruntled clients using each other to get a wad of cash are the ones who used to email me at the Scotsman in multiple identities and changing genders then they deserve all that's coming to them.

Diary of Injustice said...

#Anonymous @ 25 October 2013 14:12

Could be ... and DOI receive similar emails from time to time.

Ongoing enquiries indicate there is evidence to suggest one particular individual has been accumulating personal data on others and using it to what this individual perceives as his advantage and agenda which is to help himself rather than the community at large.

Clients who suffer genuine injustice should talk to qualified persons in the media if they are seeking publicity for their situation.