Freedom of Information (Scotland) Act 2002 (Amendment) (PE1512)
Good morning, ladies and gentlemen. I welcome you all to today’s meeting of the Public Petitions Committee. As always, I ask everyone to turn off their mobile phones and other electronic devices, which interfere with our sound system.
Apologies have been received from Jackson Carlaw, who is attending the Health and Sport Committee. Cameron Buchanan is attending as his substitute. Apologies have also been received from David Torrance; Jim Eadie is attending in his absence. I am sure that all committee members wish to pass on condolences to David Torrance on the loss of his father.
Item 1 is consideration of PE1512, by Bill Chisholm, on amendments to the Freedom of Information (Scotland) Act (2002). As previously agreed, the committee will take evidence from the Scottish Information Commissioner. Members have a note by the clerk and submissions from the commissioner and the petitioner. I welcome the Scottish Information Commissioner, Rosemary Agnew, and Sarah Hutchison, who is head of policy and information in the office of the Scottish Information Commissioner. Thank you for coming along.
I invite Rosemary Agnew to make an opening statement of about five minutes, after which I will move to questions.
Good morning, and thank you for the opportunity to speak to the committee about the petition.
Ultimately, I respect that it is Parliament’s role to legislate; what I aim to do is simply to inform members in order to aid that legislative process. I emphasise that there is more common ground between me and Mr Chisholm than might immediately be apparent. I am grateful to him for raising the issue because it has brought an issue to the fore.
I believe that Mr Chisholm and I are starting from the same point: we want Scottish public authorities to be open, transparent and honest in their communication, and we want citizens to be confident that they are being told the whole and accurate story, within the law. Where Mr Chisholm and I have differing perspectives is that I take the view that the current legislative framework—that is, FOISA and beyond—largely provides for that.
The main focus of the petition is that the law does not specify that authorities must provide accurate and up-to-date information; it specifies that they must provide the information that they hold. My understanding is that Mr Chisholm requested information from the Scottish Borders Council and was given information that he had good reason to believe was wrong—information that was factually incorrect.
Mr Chisholm challenged the information and the council gave him further information. He was understandably unhappy that the council did not, on the first pass, give him all the information that it held. He appears to have interpreted that as being dishonest behaviour, which resulted in his getting what he sees as inaccurate information.
I can only assume—because he did not take up his right to appeal to me—that Mr Chisholm was content that ultimately, he received all the information that the council held in relation to his request. In that context, I can only speak hypothetically from what I understand of his experience through the petition process. I cannot know for certain whether there was dishonest behaviour, but I can conclude with some confidence that the council did not get it right first time. Had it done so, Mr Chisholm would have received all the information—information that I assume he was ultimately happy with—on the first time of asking.
The evidence last week emphasised Mr Chisholm’s concern that authorities do not have to behave in an honest and truthful way. I think that they do, but FOISA is only one part of the framework that aims to ensure that that is the case. It could be potentially damaging to consider FOISA in isolation from other legislation relating to a range of subjects, which include conduct in public life, public record keeping and how public authorities report.
It might also be helpful to consider a couple of conceptual points. First, there is the nature of accuracy in the context of the debate. My take on Mr Chisholm’s case is that it appears that it was the application of FOISA that was inaccurate, in the sense that had the authority applied FOISA accurately in the first place, all the information that was held would have been given to Mr Chisholm. When that is not the case, FOISA has a remedy.
Another way of looking at the concept of accuracy is to refer to the accuracy of the information on the page. To put it crudely, were the numbers on the page the real ones or the right ones? That fundamentally changes the nature of the accuracy debate in relation to FOISA, because it moves FOISA away from being a measure for challenging access to information to being one in which we are potentially having to check that documents are right before they are issued, in order to determine whether they should even be disclosed.
The second conceptual point that I want to consider is the nature of honesty in the context of this debate. We could ask the hypothetical question: did the council act honestly but mistakenly when it gave out partial information, or did it act dishonestly by knowingly not giving out information the first time round? We cannot know the answer, but an investigation under FOISA could have reached a view on that.
We then come to whether information is correct or right when it is disclosed. What FOISA adds in that context is that it can ensure that the information is disclosed, thus making it public and enabling wider scrutiny in relation to its accuracy or truthfulness. The issue comes up in appeals to me. Sometimes a requester gets access to information to test the probity of a decision by an authority, for example. The requester might want facts or analysis that the authority considered, and if they can prove that the fact or analysis was wrong, they could challenge the authority’s decision. They are holding the authority accountable and enabling that sort of scrutiny. There have been notable cases in which the approach has worked.
The important point is that FOI gives a right to see the information that the authority holds. If we get the information and then find that it is inaccurate, we can challenge appropriately, through the appropriate legislation.
FOISA can also help in that if such scrutiny suggests that what was disclosed was inaccurate because it was altered or information was deliberately withheld, there is provision to investigate the matter further as a criminal matter. I think that my most recent briefing covered that in more detail.
We have a strong law in Scotland. It is recognised internationally, and one of the strongest aspects of the regime is its enforcement provisions. We can enforce every step of the way, and a commissioner’s decision is binding.
Our FOI law is also stringent in ways that might not be immediately apparent. It is not often appreciated that I am obliged by law to accept all valid appeals. That means that I have to issue a decision notice; I cannot choose which cases I look at. Therefore, the citizen has the right, if they make a valid appeal, to get a decision from me. There is always that scrutiny.
The rights are legally enforceable. A good indication of our enforcement powers is that, to date, no Scottish public authority has failed to comply with a commissioner decision. They might have challenged a few through the Court of Session, but they have not failed to apply them.
If I find that an authority has acted unlawfully—that is, that it has not followed the provisions of the Freedom of Information (Scotland) Act 2002—that is reflected in a decision notice. Decision notices can be reported on and used by other people in various ways, but I think that they constitute the public reprimand for which the petitioner is calling.
You will have seen, in my previous briefing, information on section 65 of FOISA, which enables us to challenge and potentially to investigate as a criminal matter the deliberate changing of information. Ultimately, if that is found to be the case, there could be a fine of up to £5,000.
One thing that I emphasise about section 65 is that it was recently updated by the Freedom of Information (Scotland) Amendment Act 2013, which put right what we saw as being a flaw in relation to when cases on the sort of allegations that I am talking about could be brought.
10:15It is also probably worth sharing with the committee that the one section 65 case in which I have been personally involved did not end in a prosecution. It was investigated, but the important point was that it resulted in accurate information being disclosed to the requester. The original information was inaccurate and what the requester ended up with was accurate.
In summary, my concern with the proposal in the petition that relates to public bodies being
“duty bound to provide accurate information”
is that that would fundamentally change the nature of FOISA and could impose a significant resource burden for something that can already be addressed.
Thank you very much for your detailed presentation. I have a couple of questions; I will then ask my colleagues to get involved. First, what merits do you see in Mr Chisholm’s petition?
The very fact that it was lodged is a merit in itself, because it has enabled us—me in particular—to look at the information and guidance that I give out. One thing that I will do is see whether the concept of “accuracy” can be built in as a piece of guidance. The petition has raised the profile of that.
I think that the petition’s main merit is that it has raised the much wider issue that public bodies should be held to account. FOISA is one way of doing that. There is the issue that FOISA is one way, but the fact that somebody has called for an amendment means that the world is watching, and we want to see authorities behaving properly.
Thank you for that. I think that you have partly answered my next question. Do you think that the 2002 act needs to be strengthened? If so, in what ways?
I think that, if you ask a commissioner whether the legislation needs to be strengthened, they will always say yes, because we always find some things. For me, the strengthening of FOISA is not related to enforcement. The bits that need to be strengthened are more related to proactive publication. The ideal would be authorities giving out information without being asked. Currently, enforceability is in some ways not as strong as it might be.
Finally, I understand that you have the power to refer to the Court of Session if you think that the act has been breached. If that is correct, how many times have you done that since you have been in office?
I have not done that since I have been the commissioner. I have certainly not done that with any decisions; all my decisions have been complied with.
I also have powers to issue information notices. If authorities are not giving me information that I think is necessary for my statutory function, I can serve a notice on them. I have come close to getting to the Court of Session with a couple of those, but ultimately I have not had to take that final enforcement step. Authorities have complied.
In what circumstances would you refer to the Court of Session?
I would refer to the Court of Session if I had issued a decision that called for an authority to take action that it refused point blank to take, and there were no other circumstances relating to that. Going to the Court of Session is a very expensive step. If I was considering that, I would certainly first try to have a dialogue with all the parties. However, if they did not comply, I would go to the Court of Session.
That is the ultimate sanction.
Yes.
Thank you for that.
Good morning. I refer to the evidence that we heard from Mr Chisholm. My interpretation of it is that he perhaps accepts that the process was not followed. Will you enlighten me on whether you have had similar cases involving questionable accuracy? I am not sure that that is what you meant when you said that the petition had brought certain issues “to the fore”. What are they? Have you dealt with similar circumstances?
Yes. The basic process that FOISA provides for is that, if a person cannot find information that an authority holds because the information is not on its website or elsewhere, they can request it and they have a statutory right in law to receive within 20 days either the information or an explanation for why it is not going to be disclosed. If they do not receive that, or are dissatisfied with what they get or with the service and the way in which the request has been handled, they can then ask the authority for a review. The review stage is the one at which authorities have the chance to put things right—they can get it right second time, if you like.
Ultimately, if the requester is dissatisfied with anything about that stage, they can appeal to us. When appeals end up with us, it is not uncommon for us, as part of our investigation or sometimes as a final decision, to tell the authority to conduct further searches. We often say to them, “Please search under these terms” or “Have you looked for what you might hold here?” Often, what happens is not a deliberate thing on the part of authorities, but just a reflection of the fact that they do not always get right the search for and locating of their information. I do not know whether that applied in Mr Chisholm’s case, obviously, because we did not investigate, but it is a fairly common element of the appeals that come to me.
The other thing that I would add about appeals is that for the past year we have been collating national statistics on FOI from authorities, and we believe that more than 60,000 freedom of information requests were recorded in Scotland in the past year, just under 1 per cent of which ended up in appeals. That puts the matter in context, and shows that just over 99 per cent did not end up in appeals to the commissioner.
With that point, you pre-empted a question that I was going to ask about how many complaints are referred to you.
You have a key position—in fact, a critical one—in ensuring that there is transparency in the body politic in Scotland. Do you believe that within public authorities—I should know this, but perhaps you could tell me which public authorities and which areas you cover—there is a real understanding of the need to meet the requirements of people who file freedom of information requests? Are there pockets of authorities that are not doing what they should be doing?
That is an easy question with a very complex answer, I think. We cover Government, executive agencies, local councils, other public bodies, higher education—
Do you cover the judiciary?
No. We cover the Crown Office in a limited sense, but not in relation to its investigation-of-crime functions.
I would not say that, by sector or authority type, there are
“pockets of authorities that are not doing what they should be doing”.
My experience over the past two years has been that, generally, public bodies in Scotland try to be open. There is always the Bell curve and there are extremes, but I would say that the extremes where we do not always find compliance are more to do with individual cases or an individual authority than a particular type of authority.
As for whether there are consistent themes, the problem is not in respect of desire to be open or of understanding that FOISA is here and that authorities have a statutory duty; it is more about how some freedom of information requests are handled. One of my observations about how freedom of information is reported is that often the process is reported, rather than the information. For example, if you look in the press, it might be reported that an authority is accused of being secretive. The authority is probably not being secretive; it probably just did not handle a request well. In our guidance, we increasingly refer to the need to take a more customer-focused approach and we ask authorities to think about that not just as a statutory duty, but as a way of engaging with requesters, because if we communicate better, we are more likely to comply with the legislation.
Good morning. Are you satisfied by the amount of inaccurate information provided in response to freedom of information requests? There seems to be an awful lot of it; the percentage is high.
It comes back to what we mean by “inaccurate”. If the question is whether the numbers on the page are accurate, I would say that we would all struggle to know whether those are accurate to the nth degree. For example, if someone says that the published minutes of a meeting are inaccurate, the only way of knowing whether they are truly accurate would be to interview everyone who was there and ask them whether the minutes reflect their recollection of the meeting. FOISA gets the information out there so that those best equipped to challenge an issue can do so.
However, the question may be whether there is inaccuracy in how the Freedom of Information (Scotland) Act 2002 is applied. My take on Mr Chisholm’s experience is that the inaccuracy relates to how the request was handled. It is highly likely that the first time he was given information, it was inaccurate in the sense that it did not answer the whole question. By the time he received all the information that the authority held, I can only assume that he was content that it was accurate. I probably see more of that element whereby the authority has not disclosed everything that it holds in relation to a particular request. Sometimes, that is down to things not being found or searched for properly; occasionally, it is down to a difference in view about how an exemption is applied. However, it would too sweeping a statement to say that widespread inaccuracy exists. If we think of the millions of documents that go out, can any of us hand on heart say that the documents that we issue are 100 per cent accurate all the time?
I want to pick up on Mr Chisholm’s situation. Mr Chisholm’s salient point is that, had he not been aware that the initial information was inaccurate, he would have taken that information as gospel, to coin a phrase, and the matter would have been done and dusted. In his response to your previous letter, he said:
“I would suggest that I should have been able to ask for a SIC investigation as soon as I could provide evidence of the council’s ‘inaccurate’ response”.
This is where we are probably getting into a difficulty with semantics. Mr Chisholm could have come to us to say that he was dissatisfied with how the authority had handled his request. The result of that approach is likely to have been that we would have made the authority disclose all the information that it held, so ultimately he would have got the accurate information. However, even in that context—I think that the matter related to legal expenses—we could not know that every number on the page was correct without doing a lot of research and asking for the invoices, which theoretically we could do, and by going to the law firm and asking it to confirm the amount that it charged. The point about objective accuracy on the page applies to anything.
As soon as information is made public through a freedom of information request, that information is not just given to that individual person; it is public information that is there for everyone. Sometimes, it is not the requester who challenges the information—sometimes, other people look at it and say that it cannot be right, and so challenge it. The difficulty with this case is that it went only part of the way through the freedom of information process, so we can really only speculate.
10:30
You said that your research shows that, in the past year, there have been 60,000 FOI requests to public bodies, only 1 per cent of which have resulted in issues being raised. Given Mr Chisholm’s petition, that begs the question about accuracy. You say that there were 60,000 requests but, potentially, in 59,000 of them, the full information might not have been given. The issue is about confidence in the FOI system in Scotland and ensuring that people get the accurate information the first time round, rather than having to go through the appeals process.
We are fortunate that people such as Mr Chisholm and, as we know from the decision on 1 May, other individuals have been particularly diligent and knew that information was available. They were then able to follow that up and challenge the authority, because they knew that information was there that the authority had not released in response to the FOI request. How can you say that the other 59,000 FOI requests are being so diligently followed through and that 99 per cent of FOI requests are being answered accurately with all the information that is requested at the time of the request?
The short answer is that it would be humanly impossible to know that with 100 per cent certainty. However, I can say that I have a degree of confidence, which comes from a range of sources. The statistical information gives an indication of the sorts of exemptions and the reasons that authorities give. We ourselves receive information requests, and I know with absolute certainty that 50 per cent of them are not about me—they ask me for information that other bodies hold. Some types of requests do not result in any information, so you can be confident about those.
There are many requests that result in a partial disclosure of information. From looking at the cases that come to me, I find that authorities give out what they hold. The key thing about FOISA is that it is about giving out what is held. If we were to say that the information had to be checked for accuracy before it went out, that could result in an authority changing what it held if it decided that it had made a mistake on a spreadsheet and had not added up the figures correctly. We would then get into difficult waters of considering what a public record is and whether the authority would then hold both. Some authorities might notice such things and provide the information that they hold while saying that, actually, it should be something else. I do not think that we can characterise one type of behaviour.
As to whether we have other ways of knowing whether the figure is accurate, the confidence element comes from other parts of my statutory duties, particularly those relating to good practice by authorities. We give a lot of guidance and we hold events and briefings. From the types of questions and responses that I get, I am confident that authorities try to give out what they hold, although they might not achieve that 100 per cent. Authorities are not required to give specific explanations, but we encourage them to communicate and give advice and assistance to help the requester understand it.
When campaigns make FOI requests, the information that they get is not the only information that they look at. If they are campaigning on or researching an issue, they will have information from lots of places. As with any other piece of research, analysis and evaluation, they will look at all the information and compare and contrast it.
As to whether it would make a difference to change the law so that accurate information must be given out, we would still be in the same place if somebody was not happy with the information that they had been given. If the law stated that accurate information must be given, would that mean that people could rely 100 per cent on the information when they got it? Would they still think that the authority might not have given them accurate information? At the moment, people can challenge what they get by saying that they do not think that the authority has given out all the information that it holds.
You raise an interesting point about people’s confidence in the accuracy of the information that is provided. However, should anyone who makes an FOI request not expect it to be 100 per cent accurate?
That is difficult, because it would depend on the information. If the question was something like, “Can you tell me how much money you have spent on X?”, the person making the request should expect to get entirely accurate information on that. If there was any inkling that it was not accurate, it might be because not all the information had been given, so the person could challenge the information on that basis.
Other types of information are trickier, however. For example, an economic report on the evaluation of option B of the next phase of a town development would be, by its very nature, subjective, as it is about opinions. At what point do we stop judging whether something is or is not accurate? That is why I think that the balance that we have at the moment, which is that public authorities must disclose what they hold to enable a wider public scrutiny, is working effectively.
Interestingly, your example of a report on plan B for the latest town centre development also raises the issue of the minutes of meetings, to which you referred earlier. I have seen the minutes of meetings of public bodies that could mean anything to anybody because they are so vague about how a decision was made and who participated in it. Have you had any discussions with public bodies about how they record their decision-making processes? For example, a major decision about a multimillion-pound expenditure programme can be reported by one line that states, “Members agreed, on division, to go forward with this development.” There is no accurate information in that on who voted and when, where and on what, or on whether there was a plan B, for example. How does someone get that type of information through an FOI request, given that your reference was to information that is held by an authority?
That is an area that takes us into other legislative frameworks rather than just freedom of information. For example, the Public Records (Scotland) Act 2011 is about how records are to be kept and organised. It involves issues of conduct and whether someone is carrying out their function properly. Ultimately, though, I do not think that it is my place to say to an authority that it must record its minutes in a particular way. What I can do is say that it is good practice to ensure that the information that it proactively publishes sets out its decision making and holds it accountable to scrutiny. However, if we got into the territory of a commissioner telling a council how it must record its minutes, would that mean that, on the basis that the policy must apply to all public bodies, the commissioner must tell the Government and the Parliament how to record minutes?
There must be provision for authorities managing themselves, and FOISA gives us access to information that allows others to challenge how they do that. If the public record is not what the public are looking for, then they are at least able to challenge it on the basis that they think that it is inadequate. Others can then take up the cause, too.
You indicated earlier that you give guidance in briefing sessions to public bodies. Can members of the public attend such events?
Yes. For example, in the past couple of months, we have conducted two regional roadshows—one in Aberdeen and one in Ayr—in which we have provided guidance and briefing sessions for public bodies. We have met people from the local press, voluntary groups and as many local MSPs and other elected members as possible. We also run events and issue guidance for requesters, particularly through our website, which has, for example, tips for making information requests that are most likely to result in a solid response. We try to cover the advice and guidance for all parties as much as we can within our limited budget.
How much does the appeals process cost?
In broad terms, I have a budget of around £1.5 million, and I deal with the appeals within that. I also use that budget to do all the advice and guidance work. However, that is really only the end point of it.
I am really interested in the issue of the costs of dealing with freedom of information requests. Bear in mind the fact that, even if there were no freedom of information legislation, people would still ask questions of public bodies; they just would not have an enforceable right behind their request. The most effective way of dealing with freedom of information requests is for the information to be there for people to look at. We therefore need to encourage public bodies to see that it is worth investing in getting their records out there in the first place.
We very much promote the concept of getting it right first time. I get frustrated when I get appeals that concern a failure to respond, because I think that it is disrespectful on the part of authorities not to respond. They could deal with the requests and get it right first time. Many authorities do well at that—we know that from feedback that we get. Once you have gone beyond that, if you engage the internal right to appeal—the costs of which vary between authorities—you are then ramping up the costs, because internal reviews tend to be dealt with by more senior people, as they require someone in authority to revisit the case in its entirety. Evidence suggests that most authorities deal with the issue at that point. The real cost of appeals comes not when the appeals reach me but when my investigations are responded to, because my investigations are thorough and ask probing questions, and they often require authorities to carry out more work. I hope that they learn from that that, if they want to keep FOI costs down, they should invest at the front end and get it right first time.
Obviously, 1 per cent is extremely low, but could the cost possibly be a deterrent to people going through the process?
It costs the requester nothing in financial terms—I do not think that it is ever true to say that these things cost nothing, but it is not like taking a court action; it is a free process. It involves an investment of time. Investigations have to be impartial and fair so, when it reaches me, we have to ensure that both parties are asked questions and get the chance to respond.
Without extensive research, I do not know what might put people off coming to me. If anything does, it is more likely to be the wider issue of complainer fatigue—people saying, “I’ve just been waiting so long and I can’t get to that point.” I do not think that it is a big issue, but I do not know.
10:45
Good morning. I would like to stay with the theme of public confidence in the regime that exists in Scotland and what you referred to as the concept of getting it right first time.
Has any independent research—either quantitative or qualitative—been undertaken that would allow us to understand, when a request is made by a member of the public, whether the public authority is being deliberately obstructive in not making available all the information that it holds or whether in fact it is simply that a junior member of staff is handling the request and they have not interrogated the information to the extent that they should have? How do we distinguish between those two possibilities, for example? Has there been any independent research that would allow us to get below the surface of some of the issues so that we can understand what is happening when requests are made?
There is one piece of research that we commissioned jointly with the University of Strathclyde about three or four years ago, which looked at the experience of voluntary sector organisations in making FOI requests. I do not have the figures with me, but the findings are available on our website. The fact that most of the people who made requests received the information that they wanted is very promising.
The key finding of that research was that there was some concern among voluntary sector organisations that making requests for review—in other words, taking FOI to the second step—or making appeals to the commissioner might be seen as a negative behaviour as far as their relationships with public authorities were concerned. We would certainly have liked to investigate that further, but we have very limited means of doing so. We are hoping—but it has not come to fruition yet—that somebody might be able to pick that up as an area of further study; it is one that is worth looking at.
The appeals that come to me are a pretty good indicator of people’s perceptions. They come to me for a range of reasons but, increasingly, they are coming to me because people are dissatisfied with the handling of their information requests. I do not think that that is an accuracy issue; it is more a customer service and respect issue.
My colleague Mr Wilson asked about the information on minutes that is held by public authorities and you mentioned good practice in that context. I will give you a specific example in a moment, but as a general principle, for how long should a public authority—be it a local authority or any other public authority—hold information?
The example that I have in mind is private finance initiative contracts. A number of PFI contracts involving health boards and local authorities have a particular time limit—they might be of 25 or 30 years in duration. I would be concerned if a member of the public could not request information during the period of a contract, for example, and was denied information on the basis that the public authority no longer held it. Do you have a view on that?
That is a very good example of a situation in which FOISA is not the only piece of legislation that counts. If we look at the work that the keeper of the records of Scotland is doing in relation to public record keeping, authorities are now required, on a rolling basis, to have a records management plan. A key element of a records management plan is a retention schedule that sets out what sort of documents will be held at various times and when they will be destroyed. That is the sort of document that we would expect an authority to publish—we publish our own.
Would it be an expectation of good practice that if there was a PFI contract, an information management plan would be attached to that contract?
A plan might not necessarily be attached to the specific contract, but I would expect a good retention schedule to refer to that type of document and to say that such documents will be kept for the duration of the contract and for X months after it ends or whatever is appropriate. I am not trying to be evasive; it is just that legally, different documents have to be kept for different lengths of time. In addition, with PFI and contractual-type documents, there may be impacts in relation to procurement legislation, which might involve other information requirements.
I cannot say that the period should be a particular number of months or days, but my strong view is that an authority should be up front about how long it keeps types of documents so that, if we think that that length of time is incorrect, we can challenge it on record keeping grounds rather than through FOISA.
I will describe the flip-side. If an appeal came to me in which I thought that the requester had a reasonable expectation that the authority would hold a document but was told that it had been destroyed, we could look at the authority’s retention schedule and say, “You say that you will keep this type of information for six months, so why do you claim that it has been destroyed three and a half months in?” That would be the way to check whether the authority was doing what it publicly said that it would do.
That is helpful. What about information that is denied to a member of the public on the basis of commercial confidentiality? Do you have any case studies or examples in which you have challenged such a decision?
How long have you got? We have challenged that in a couple of decisions. I am thinking of the Clatto landscape protection group decision, which concerned a wind farm in Fife and in which that very position was challenged. My perception is that commercial in confidence is often not the same as commercially sensitive. Through our guidance, we encourage authorities to use the correct exemption if they are trying to withhold information. Things are not often commercially sensitive, although they might be commercially confidential, which means that disclosing them could be challenged under a legal process.
The exemption that we are discussing is probably the most difficult for authorities to apply. We get lots of requests for advice and guidance about it, which we always give authorities. We cannot tell them how to deal with a case, because we cannot prejudice our position, but we issue briefings on the exemption. I have to say that it is not used overly well.
I could continue, but I think that it is best to stop there.
I will return to openness and transparency. There are 60,000 requests to you, which is a fair number, and goodness knows how many do not go to you because they are answered.
I have two associated questions. Currently, there are superior bodies that are not Scottish public authorities. There might be an issue with a freedom of information request that is to a Scottish public body but which has to go to a body elsewhere. How do you handle that?
You talked about a fine of £5,000. The Scottish Parliament information centre briefing says that
“Section 65 of FOISA makes it a criminal offence to ‘... alter”—
alteration should be reasonably easy to discover—or to
“deface, ... erase, destroy or conceal ...’ information”.
What happens when a public body blocks the release of information or tells someone to find the information themselves?
You raise a heap of things. I apologise if I misled the committee—the 60,000 requests are to all public bodies in Scotland. Of them, 572 or 573 came to me in the previous financial year.
That is my fault—I misunderstood.
When information is held not by a public authority but by a contractor, if it is held on the public body’s behalf or if it is part of the contractual arrangements—there is quite a lot on that in the Government’s guidance, which is the code of practice under section 60—and if it is the authority’s information, the authority should make arrangements to get it to us.
If there is information that is not held by a public authority but which it thinks might be helpful, it cannot tell the other organisation to give the information to it to send to the requester, but it can signpost the requester and give them advice and assistance on how to get to the information.
We then come to whether all the bodies that should be covered by FOI in Scotland are covered. That is covered under section 5 of FOISA, which is on the designation of new bodies. Ministers have recently made an order to make culture and leisure trusts subject to FOI. I have more concern in that area, because if we are not careful, there will be an erosion of the enforceable right because things are outsourced or moved to the private sector. We are currently conducting research on the issue, because we want to lay a special report before Parliament on how we think section 5 duties are being exercised and how we think we can make FOI applicable to more bodies and different types of bodies.
Ultimately, if the authority’s information is held by a third party, the authority must take steps to get the information within the statutory timescales and to disclose it as appropriate to the requester.
What about the issue of blocking?
Basically, blocking is withholding information that should be disclosed; that is how I would interpret it. That is the very thing that someone can come to the commissioner on.
The question then becomes whether it is simply the case that the information has been mistakenly withheld, or whether there has been a deliberate attempt to block that information to prevent the request from being responded to. You can know the answer to that only when the facts of an investigation are in front of you. To raise the issue, under section 65 of FOISA, of a deliberate attempt to block, I do not have to be convinced lock, stock and barrel that a definite attempt to block has been made, but there has to be sufficient grounds for me or others to think that the issue should be investigated as a criminal matter. I see very, very few such cases, and I think that the reason why I see so few of them is that section 65 is very often related to the conduct of an individual rather than to that of a body corporate—I would say that most organisations try to respond to information requests as best they can.
I ask Ms Agnew to clarify her last statement about the individual and the corporate body or corporate entity that they represent.
What I mean by that is that, when it comes to criminal charges, the wording of section 65 refers to any individual who is employed by or who is acting on behalf of the authority. There may be a suspicion that an authority has blocked information, but I am suggesting that the decision to do so, if it were a deliberate decision, would be made by individuals or groups of individuals and would not be representative of an organisation as a whole always behaving in that way.
I am sorry, convener, but I want to get clarity. If you were to take to the Court of Session proceedings against a public body for not providing the information as requested by either the person who made the FOI request or yourself as the commissioner, who would you be taking to the Court of Session?
11:00
My apologies. There are two types of enforcement going on. Under section 65, which relates to a deliberate attempt to deface or block information, I would not take people to the Court of Session; that matter would be turned over to and investigated by the police and, ultimately, the Crown Office and Procurator Fiscal Service would decide whether to prosecute.
If, after investigating an appeal to me, I decided that an authority had not disclosed all the information that it held and I had no reason to believe that it was for any other reason than that it simply did not do it—if I was not suspicious that it was a deliberate attempt to block information as addressed in section 65—I would go to the Court of Session only if the authority refused to take the action that my decision said that it must take. I have never had to take that action as commissioner and neither did the previous commissioner, because authorities have always complied with decisions so far.
Thank you for that clarification.
Thank you very much, Ms Agnew and Ms Hutchison. We will now consider the next steps. Your evidence has been excellent. I have enjoyed your insights into the issue.
As the committee knows, we have written to the Scottish Government about the issue and still await some feedback from it. I suggest to the committee that we continue the petition until we have had the information that we have asked for and that we give the petitioner the opportunity to comment on the evidence that we receive. That is the normal procedure. Do members agree?
Members indicated agreement.
I thank both of our witnesses for coming along. I will suspend the meeting for two minutes to allow them to leave.
11:01 Meeting suspended.Previous
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