Scottish Government

SCOTTISH EXECUTIVE FREEDOM OF INFORMATION (SCOTLAND) ACT 2002:OPEN LEARNING WORKBOOK

MODULE 19
REVIEWS, DECISIONS AND ENFORCEMENT

19.1 CONTENT AND LEARNING OBJECTIVES

This module explains more about the requirement for reviews and the work of the Scottish Information Commissioner. When you have worked your way through this module you should understand:

• the requirement for reviews
• the role and powers of the Scottish Information Commissioner
• obligations of the Commissioner in relation to complaints
• decision notices
• information notices
• enforcement notices
• warrants
• powers of the First Minister to override the Commissioner
• consequences of failure to comply with a notice
• the offence of destroying existing information once a request has been received

SUGGESTED TIME ALLOCATION: 1 hour

19.2 LEARNING MATERIALS

19.2.1 Requirement for review

There will be cases where an applicant for information is dissatisfied with the response by the authority. For example the applicant may consider that the fee the authority wants is too high, or that the authority has not given the advice and assistance that it should have done, or may be unhappy that the authority has refused to provide the information which the applicant requested. If the applicant is dissatisfied in any way he or she can require the authority to review the way it has handled the request or the decision that it has reached.

The applicant has 40 days in which to lodge this requirement for review. Like a request under the Act a requirement for review must be in writing or other permanent form and give an address for correspondence. The applicant must describe the original request and explain how he or she is dissatisfied.

The 40 days is counted either from:

• the end of the time when the authority should have answered the request - this means that an applicant can apply for a review where the authority has not responded to the request; or
• the date that the applicant received a response from the authority, for example a notice of refusal, if the authority has not managed to respond within the time it should have done - this means that the applicant still has 40 days, even if it takes the authority longer than it should do to respond.

The authority does not have to carry out a review if it has decided that it did not have to answer the request because it was one it has already dealt with (a repeated request) or was a vexatious request. However it cannot ignore the requirement for a review and must write and tell the applicant of its decision. Otherwise the authority has to review its original actions. It may decide to stick with its original decision or may decide to modify it or provide more information.

The authority must handle the requirement for a review within 20 working days after it receives the request, unless the request involves material which has been transferred to the Keeper of the Records of Scotland in which case the period is 30 working days.

Whatever it decides to do it must tell the applicant and explain why it has decided to act as it has. It must also tell the applicant about his or her rights to complain to the Scottish Information Commissioner.

The Code to be issued under section 60 deals with the obligation to carry out reviews:

It gives the following advice:

• A requirement for a review is likely to be distinct from other complaints handling procedures that exist in an authority.
• An authority must have an appropriate and accessible procedure for handling reviews which should be fair and impartial and enable different decisions to be made if appropriate.
• Review procedures should be straightforward and capable of producing prompt determinations.
• Review procedures should address the access needs of disabled applicants.
• The matter should be considered afresh, preferably by those who did not handle the original decision.
• Where the decision is that information should be disclosed then this must be disclosed promptly and no later than the 20 working day period for carrying out the review.
• An authority should apologise to an applicant if the review finds that procedures have not been followed and consider how to prevent this happening again.

19.2.2 Role and powers of the Scottish Information Commissioner

The Commissioner is a crucial figure in the FOISA regime. The Commissioner has an important role in dealing with complaints about the responses of public authorities but his role is much wider than handling complaints. The Commissioner must:

• promote good practice with a view to ensuring that public authorities comply with the Act and follow the Codes of Practice;
• disseminate information to the public about the operation of the Act, good practice and other matters to do with FOISA;
• give advice to the public;
• assess whether a Scottish public authority is following good practice; and
• report annually to the Scottish Parliament on the exercise of his functions.

The Commissioner also has various powers to investigate and enforce which are covered in the remainder of this module.

The Commissioner and his staff have obligations to keep information which is disclosed to them as confidential.

19.2.3 Obligations of the Commissioner in relation to complaints

An applicant who is dissatisfied with his or her treatment at the hands of the public authority can make a request for a decision to the Commissioner. However the applicant must have used the review procedure and either be dissatisfied with the response or have had no response before he or she can make an application to the Commissioner.

The applicant has a period of 6 months after he or she receives, or should have received, the decision of the authority following the review in which to make an application to the Commissioner. The Commissioner can deal with complaints lodged outside that period if he chooses to do so. The applicant should describe:

• the request for information that was made and what is to be reviewed by the Commissioner;
• the reason for being dissatisfied with the response received from the public authority;
• the reason for being dissatisfied with the outcome of the review or the failure to conduct a review by the public authority.

The Commissioner may decide not to proceed on the grounds that the request to him is frivolous or vexatious and the applicant can withdraw the complaint at any time. If he does not proceed to make a decision then he must tell the applicant and the authority and explain why he is not making a decision in the case.

If the Commissioner decides to handle the application he must notify the authority about it and invite its comments. He may try to resolve the complaint between the applicant and the authority but if he is not able to achieve this he must make a decision on the case and notify both sides. This is a decision notice. He generally has four months from the time he received the complaint to do this.

19.2.4 Decision notices

The Commissioner may decide that the authority did not have to provide the information requested or that it should have done so or should have handled the application differently. If he decides that the complaint was justified the decision notice must say:

• how the authority has failed in its obligations under the Act;
• what it must do to set that right;
• the length of time allowed it to do so; and
• the authority's rights to appeal to the Court of Session against the ruling on a point of law.

If the notice finds in favour of the authority then the applicant has a right of appeal to the Court of Session, again on a point of law.

19.2.5 Powers of the Commissioner to require information

In some cases the Commissioner may require more information than the applicant is able to supply in order to decide on the complaint. He may also require information if he has concerns that an authority is not complying with the Act in other ways or is not meeting the requirements of the codes of practice. In such cases he can serve a notice called an information notice.

An information notice must contain:

• a description of the information required;
• a statement that the Commissioner has received an application for a decision if this is the case, or
• a statement that the Commissioner regards the information as reasonably required in order to ascertain whether the authority is complying with the Act or code of practice;
• information that the recipient has a right of appeal to the Court of Session against the notice but only on a point of law.

Once an authority receives an information notice it must respond within the period set out in the notice. An authority does not have to provide material which would be legally privileged but otherwise cannot refuse to supply information on the grounds that it is confidential or in any other way restricted.

If an authority makes a statement which is false in response to an information notice and either it knows it to be false or is reckless as to its truth, or the authority fails to respond to the notice the Commissioner can refer the authority to the Court of Session which can take action against the authority for contempt of court.

19.2.6 The use of enforcement notices

Decision notices are used where the Commissioner has received a specific complaint from an applicant about a failure to handle a request properly but the Commissioner can also serve notices in other circumstances. The Commissioner may become aware that an authority is not complying with its duties in other ways, for example it may not be providing advice and assistance to applicants or it may not be complying with its publication scheme.

The Commissioner has a general power to serve an enforcement notice in any case where he is satisfied that the authority has not complied with the Act. The notice must tell the authority:

• with which provision of the Act it has failed to comply;
• what steps it must take to put things right; and
• the authority's right to appeal to the Court of Session against the ruling on a point of law.

19.2.7 Warrant powers

In exceptional cases the Commissioner may need to enter the premises of an authority and seize documents and materials in order to deal with either a complaint or an allegation that the authority has not complied with the Act or is in serious breach of a requirement imposed by a notice. Such incidents are likely to be unusual, but the Act provides for them by allowing the Commissioner to apply for warrants of entry without notice in some cases.

19.2.8 Powers of the First Minister to override the Commissioner

The First Minister can overrule the decision of the Commissioner where:

• a notice has been served on the Scottish Administration requiring it to provide information;
• the Administration had claimed an exemption on one of the grounds related to public policy, national security, international relations, criminal investigations, confidentiality or Royal honours; and
• the First Minister considers that the information is of exceptional sensitivity.

The First Minister has to consult the other members of the Executive before taking this action and must provide a certificate which is laid before Parliament.

19.2.9 Consequences for the authority if it fails to comply with a ruling of the Commissioner

It is unlikely that any public authority will fail to comply once it has received an information, decision or enforcement notice but if this does occur the Commissioner may bring the authority before the Court of Session. The Court has the power to hold an inquiry and hear witnesses. If it is satisfied that the authority has failed to comply it may deal with it as contempt of court. Under Section 15 of the Contempt of Court Act 1981, the maximum penalty for being found in contempt of court in Scotland, is two years imprisonment or an unlimited fine or both. It would be the public authority itself that was taken to court rather than an individual and so the penalty would most likely be a fine rather than the head or governing board of the authority being imprisoned.

19.2.10 What can happen if information is destroyed or erased after a request has been received?

Where a Scottish public authority receives a request under the Act for information which it would be obliged to disclose, either in whole or in part, the information must not be tampered with in any way. It is a criminal offence to alter, deface, erase, destroy or conceal a record held by an authority after a request has been received unless the authority would not have to provide it to the requester.

The offence can be committed by anyone who works for a Scottish public authority, either as a direct employee or merely under the direction of the authority. The authority itself can also be prosecuted.

Example:

If the superior officer of an authority ordered a subordinate to destroy material in order to evade answering a request, the legal responsibility would rest with the authority and the senior official but not with the junior member of staff who carried out the orders. On the other hand if a junior employee took it upon him or herself to erase or destroy information after receiving a request, the employee would be personally liable to prosecution.

Cases will be brought in the Sheriff court and the punishment for anyone found guilty of such an offence is a fine of up to 5000 in the Sheriff court. However the Scottish Parliament or the Parliamentary Corporation or the Scottish Administration cannot be prosecuted for this offence, although individual members of their staff may be.

19.4 SUMMARY

The Scottish Information Commissioner is a fully independent public official. His duties and legal powers should ensure that people get the information from Scottish public authorities to which they are entitled.

Complaints concerning requests can only be made to the Scottish Information Commissioner once an applicant has exhausted the authority's review procedure. If an applicant is dissatisfied with an authority's response to a request, the applicant has 40 days in which to request that the authority reviews its decision. The authority must handle the requirement for review within 20 working days and must notify the applicant of any decisions or actions taken in response.

If an applicant is dissatisfied with the response from the authority, he or she can take their complaint to the Scottish Information Commissioner. The Commissioner will then decide whether to proceed with the complaint. In all cases the Commissioner will notify both the applicant and the authority of his decision.

On occasions the Commissioner will require more information before he can make a decision concerning a complaint and so he may issue the authority with an information notice. The notice will describe what further information is needed and the authority must respond within the deadline set out in the notice.

If the Commissioner becomes aware that an authority is not complying with its duties under the Act, such as the duty to provide advice and assistance, he can issue an enforcement notice, informing the authority which part of the Act it is failing to comply with and what it needs to do to put things right.

Although the Scottish Information Commissioner is responsible for overseeing the Act, there are a small number of occasions when the courts may become involved. It is a criminal offence for anyone to destroy or erase information after a request has been received. This offence can be committed by the authority or its employees. Such cases will be dealt with in the Sheriff court and the offence carries a fine of up to 5000.

If an authority fails to comply with any notice served by the Commissioner, he can bring the authority before the Court of Session. If the Court is satisfied that the authority has failed to comply it may deal with it as a contempt of court. The Court of Session will also deal with appeals made by authorities or applicants in relation to the Act.

In most cases the Commissioner will make the final decision regarding what information should be released, but there is one exception. The First Minister can overrule the Commissioner when it relates to certain decisions taken by the Scottish Administration.

19.5 KEYWORDS

19.6 REFERENCES

Section 21 Review by Scottish public authority
Section 42 The Scottish Information Commissioner
Section 43 Functions of the Commissioner
Section 45 Confidentiality of information obtained by or furnished to the Commissioner
Section 46 Laying of Report
Section 47 Application for decision by Commissioner
Section 48 When application excluded
Section 49 Commissioner's Decision
Section 50 Information Notices
Section 51 Enforcement Notices
Section 52 Exception from duty to comply with Notices
Section 53 Failure to comply with notice
Section 54 Powers of entry and inspection
Section 55 No civil right of action
Section 56 Appeal against Notices
Section 65 Offence of altering etc records with intent to prevent disclosure.

19.7 RESOURCES

SIC Site:
www.itspublicknowledge.info

19.8 SELF ASSESSMENT CHECKLIST

1. If an applicant is dissatisfied with a public authority's response to a request for information, the applicant may complain to the Scottish Information Commissioner. TRUE or FALSE ?

2. If an authority decides that it was not obliged to respond to a request in the first place, it is not required to carry out a review. TRUE or FALSE ?

3. A solicitor in the legal department of a public authority is caught deliberately destroying a report following a request from a member of a local pressure group for access to the report. Both the solicitor and the authority have committed a criminal offence and can be prosecuted under section 65 of the Act. TRUE or FALSE ?

4. The pressure group that has been unable to gain access to the report destroyed by the misguided in-house solicitor, requests that the authority carries out a review of its handling of the group's access request. After nearly 3 months and no response from the authority, the group can take the authority to court. TRUE or FALSE ?

5. In disgust, the pressure group sends an e-mail to the Commissioner explaining its request to the authority for the report and the authority's failure to respond in any way to the request after 3 months, even though the group is sure the report exists. The Commissioner's Office can reply to the effect that a request by e-mail for a review is not valid. TRUE or FALSE ?

6. Having established from the authority that it is trying to recover a copy of the destroyed report from back-up tapes made of all electronic documents produced by the authority, the Commissioner can serve an Enforcement Notice on the basis that the authority has failed to respond promptly to a request for access to information. TRUE or FALSE ?

Click here for answers

19.9 WHAT THEY SAID

" The role of the Commissioner is at the heart of the Bill. He or she will be crucial to the development of the legislation and its operation and policing and will make a great deal of difference to how the legislation develops" (Christine Graham - MSP)

"An independent arbiter to supervise the regime" (Jim Wallace - MSP)

"The Commissioner's independence will ensure the integrity and credibility of the regime. Applicants will be reassured that authorities will not be able to stall and stall and stall before responding" (Jim Wallace - MSP)

19.10 CASE STUDY

Myles Hendry was employed by a Scottish Waste Disposal Authority which is responsible for ensuring the decontamination of brownfield sites owned by the public sector. The Authority carries out some projects itself but also lets contracts to external contractors. Myles Hendry worked on the administration of internal projects. He did not deal with the contracts with outside companies but was aware that the Authority held a range of information about its external contracts including material about experts who worked on the various projects.

He left the Authority after a heated disagreement with his supervisor. After he left the Authority he worked for an accountancy firm for 18 months but has recently moved to work for a contractor which specialises in decontamination work. The contractor is considering appointing some expert staff and wants to find out who has been used by the Authority. Myles describes the sorts of information they held when he worked there and the contractor makes an access request specifically asking for material about individual experts.

The Authority responds saying that it does not have any information on individual experts. The Authority has deleted this information following a review of its records management although it does not explain this to the contractor. On the basis of the information provided by Myles, the contractor is convinced that the Authority is concealing the information about individual experts.

The contractor applies to the Waste Disposal Authority for a review stating that it does not believe the statement made by the Authority that it holds no material about individuals. It does not state the basis for its belief that the Authority has information about individual experts.

Task

1. How do you think the Authority should respond? Make a list of points it may consider including in its response.

2. If the contractor is unhappy with your response and refers the issue to the Scottish Information Commissioner, what action may the Commissioner take?

3. What advice would you give the Authority if it subsequently transpires that someone from the Authority has deliberately destroyed the information on individual experts in order to avoid responding to the request?