freedom of information.co.uk

Q:  What brought you to the field of Freedom of Information?

A:  My background is primarily as a campaigner in the voluntary sector.  I worked for Oxfam for seven years on international issues, then, in 1991, I became Chief Executive of Friends of the Earth Scotland and in 1996 became the chair of Friends of the Earth International in Amsterdam.  That was a big organisation, covering 60 nations, and has a particularly strong presence at both EU and UN level around discussions of sustainable development.  My interest in FOI was a very practical one in that, since 1992, we had, at a European level, Environmental Information Regulations (EIRs), which allowed us access to information.  But the reality was that very often requests to UK public authorities for this information were blocked, delayed or denied, and there really was no real recourse at a practical level.  At a European level I knew people like Ralph Hallo and John Hontelez of the European Environmental Bureau who have done a lot of work on pushing on with the Aarhus Convention. 

Twelve years on from the implementation of the original EC directive on access to environmental infomation, we’re getting tougher EIRs and, crucially the right of appeal. In Scotland of course the right of appeal will be to me as Information Commissioner, so I’m inheriting the results of what we agitated for all those years ago. 

Q:  How pleased are you with the new EIRs and the Freedom of Information (Scotland) Act (FOISA)?

A:  At that time when the Scottish Act was being drafted and passing through Parliament,  I employed the only full-time FOI campaigner in Scotland.  I was pretty impressed by the civil servants who were responsible for drafting the legislation.  They were always available to speak to us and listened to what we had to say, as did Jim Wallace, who was Justice Minister at the time.  We wanted a high degree of definition of some of the elements of the legislation.  The politicians decided that the Act should be accompanied by guidance to aid its interpretation and that if that guidance was not followed there should be an appeal to the Commissioner.  So it became quite apparent that the role of the Commissioner was going to be important.   

Q:  Is it your experience that the public authorities covered by the Scottish Act are as clued up as they should be?

A:  I think they’re pretty clued up.  We’ll get a better sense, of course, shortly, but we did some fairly extensive research at the start of 2004, looking at the preparedness and knowledge of the Act, and how deep that knowledge went from the head of the organisation, through specialists, operational staff, down to the front line.  We asked what their intentions were in terms of training, what problems they thought they were going to confront and, crucially, what their attitude to the legislation was.  It was gratifying, first of all, that the overwhelming majority of authorities were confident they would be able to meet the requirements of the legislation by January 1st 2005.  And that was important because there were some murmurings of disquiet that somehow the legislation had been brought in early in Scotland. That wasn’t the case; there was a backstop in the legislation that it had to be brought in by December 31st 2005, but that was never the target date, as January 1st 2005 was always the preferred date.   Secondly, it was quite clear that public authorities saw benefits from the legislation, both in terms of improving their own records management, but also their public persona, being seen to be open, transparent and accountable.

We’re repeating the research in a couple of months time to see whether or not the earlier study was overly optimistic.  In addition to all this, I’ve spent a considerable amount of time myself this year organising and attending events for public authorities, including regional seminars.  I think there’s a high degree of awareness now and crucially most authorities now have key staff who are extremely knowledgeable on the legislation and its implications.

Q: The Date Protection Act (DPA) has been problematic for parts of the public sector of late.  Do you think the FOISA will have equivalent pitfalls?

A: I think one of the reasons the DPA has been problematic is that recent decisions have caused some authorities to wonder whether or not they have been operating the Act properly for the last four years or so.  The Appeal Court judgment in the Durant case in particular, gave a very narrow definition of data.  Regarding possible pitfalls with FOISA, to my mind there are three areas that could prove difficult.  First is the difficulty for public authorities in simply knowing just what information they hold.  The issue of records management is clearly exercising authorities and we have seen a number of posts being created for specialist records managers.  The police, for example, have been very proactive in this area.   The second is the twenty-day rule.  Many authorities are used to either having their own internal codes of practice, or operating under the Scottish Executive’s or the NHS’s code of practice on openness.  These codes have a target of twenty days, but now under FOISA twenty days becomes a formal deadline and not just something to aim at.  The third one is to do with the interpretation of some of FOISA’s exemptions.  These may be around procurement, confidentiality, or possibly what constitutes personal information.  Until we actually see how authorities decide to refuse requests, I won’t absolutely know whether they’re all pointing in the same direction on some of these exemptions, but one would hardly expect them all to do so at first.  I don’t think it’s a pitfall, it’s just the reality and it’s why my post exists. 

Q: FOISA’s harm test is significantly more liberal that the UK Act.  Do you think it will be exploited by people seeking information that has been withheld under the UK Act?

A:  I don’t think it will be exploited.  I think, first of all, it’s not certain that there will be a real gulf between the interpretation of ‘prejudice’ and that of ‘substantial prejudice’.  If you look at the debate in Parliament, I think it’s quite open to Richard Thomas - my counterpart in relation to the UK Act - to set a fairly high standard as to what constitutes ‘prejudice’ and it may be very close to ‘substantial prejudice’  in reality.  Whilst I accept that, on the face of it, ‘substantial prejudice’ provides a stiffer test than simple ‘prejudice’, there may not be a gulf in the interpretation of those two terms.  I

f you’re asking, are decisions capable of being taken differently in Scotland on substantially similar requests to substantially similar public authorities from decisions made in England, then the answer has to be yes.  This won’t just be on whether an issue is substantially prejudicing the interests of an authority as opposed to prejudicing it, it will also be on what I regard as commercially sensitive, or what I regard as being in the public interest.  My decisions may be different from those Richard Thomas arrives at and to my mind that’s a simple straightforward consequence of devolution.  I’m sure we’ll want to exchange and learn from each other, but we’re both absolutely clear that decisions are for ourselves alone and for each of us to justify.  On  something like the public interest test, for instance, there may a different outcome even when applied to be substantially similar requests, as the level of public concern and agitation may be different North and South of the border and this may colour our judgements.  

Q:  In terms of the interpretation of the harm test and particularly the public interest test, shall you be guided by interpretations by your peers in other jurisdictions, and perhaps also by the Parliamentary Ombudsman, all of whom have made some pretty clear decisions on where the public interest lies in various of the cases they’ve had to consider?

A:  Yes, when coming to a decision we will clearly look at what has been decided by counterparts in other jurisdictions.  We can look at Queensland, Ireland, Western Australia, where there is a fairly full articulation of the reasons behind recommendations and decisions by commissioners in those jurisdictions.  Certainly that will be helpful to us, but, at the end of the day, again the decision is for me to make and to justify in my own terms.  What we won’t be doing, of course, is being bound by anyone else’s decision.

Q:  The nuances of detail are likely to be important in each case aren’t they?

A:  That’s absolutely right.  If you look at the exemption for information concerning the formulation of government policy, the public interest test in terms of law enforcement, the substantial prejudice to commercial interests.  These really are going to be taken on a case-by-case basis.  There will be some comparability between cases, but I would be amazed if we could find something that is an exact match.  We may find, for example, that a trade secret is a trade secret, is a trade secret – something like that may be very easy to read across, but I would be surprised if we could do so in many of the other cases.  We are aware that a decision on the public interest may be made in one year and a different decision on an identical request may be made a few years later because the public interest has altered in that period.

Q:  Sometimes commercial information is highly sensitive, for example, a bid for a contract that is yet to be awarded. But, say the contract has been awarded, there seem to be fairly clear precedents from elsewhere that the information can be released.      

A:  In terms of commercial information, generally this has been rehearsed in other jurisdictions and it has also been covered to some extent by the codes of practice that the Scottish Executive will issue under FOISA.  I think the important thing that people have to get round is that a culture change has to take place.  It would be an overstatement to say that commercial companies prefer that almost nothing be put into the public domain, but there’s no doubt that they frequently stamp every communication that they have with public authorities with the words ‘commercial - in confidence’. Really what we’re saying to the authorities and to the companies is that this no longer has a bearing on whether or not the information on those pages will be put into the public domain. 

We are making it clear that ‘substantial prejudice’ to an authority or a commercial company means that there has got to be real harm, not just the theoretical possibility.  It’s got to be of significance, not just a glancing blow, or of some embarrassment.  And it’s got to happen in the relatively near future, not just at some far distant point.  So, if authorities want to make the case that there is commercial sensitivity, then they have to be able to demonstrate these things both to the applicant and to me, and they must remind themselves also that the public interest test still applies, even if they have made the case for substantial prejudice.  It is important that the authority and the company is aware that they can’t contract out of that obligation, so confidentiality clauses in contracts - quite clearly from the guidance the Scottish Executive will be issuing – will have to be justified if they enter into any contract.

Q:  But clearly if a company’s bid details were revealed before a contract was awarded, that would very obviously be prejudicial to that company’s commercial interests.  But, once the contract was awarded, can you see any justification for withholding that information?

A:  I think the normal practice so far is that in the interests of transparency, accountability, value for money, details of the successful tender are normally put into the public domain.  I agree with you entirely that it would be extraordinarily unlikely that information would be released while the tender process was underway, because the public interest lies in having a situation in which no one company is advantaged or disadvantaged by the release of information that could help or hinder them.   The stricture doesn’t really apply once a contract has been awarded.  However, there are still some public authorities who are reluctant to release details of a successful bid on the grounds that they are about to go into a similar bidding round, maybe for example it’s occurring regionally, or departmentally.  That’s a more difficult area and that’s where I can see a challenge from a company wanting to know why a particular bid was successful and an authority being reluctant to release the information.  That’s a judgement we’ll have to apply as to what is commercially sensitive and what is in the public interest.

Q:  Such situations are more likely to give you pause for thought and possibly headaches than a simple one-off contract aren’t they? 

A:  Yes.  I don’t think it’ll be a headache, I just think it’s authorities really beginning to think ‘what actual harm could come from this?’  I’ve heard some companies claiming that even the font size and type of their tender documents is commercially sensitive information.  So you really have to question what is unique and would be substantially damaging for a company to release.  What’s tended to happen in the past is that authorities create a kind of self-denying ordinance or a policy where they say, ‘We never in any circumstance do the following…,’  but in future that almost quasi class exemption just can’t apply and it’s got to be done instead on a case-by-case basis. 

Q:  There is an openness regime already in Scotland and the rest of the UK.  How significant do you regard the changes that will come about under FOISA compared to what it replaces?

A:  I think they’re pretty significant.  We have at present a code of practice on openness, which covers the Scottish Executive and its direct agencies and there are comparable codes covering the NHS and local authorities in Scotland. There have been very few complaints under those codes, so there may be a view that people are getting what they want under those codes and are perfectly content.  That’s not how I view it.  The areas where I think that there are real diffilculty arise from questions such as who wants the information and why do they want it, and that colours the manner in which the codes are interpreted and the information is given, if it is given at all.  Information may be given extraordinarily late, or simply not supplied at all.  We did some research when I was at Friends of the Earth, which showed that between 10 and 20 per cent of requests for environmental information to Scottish authorities were simply ignored, in other words, no reply was forthcoming. 

Now it’s that kind of bread and butter response of ‘I’ll put this at the bottom of my to do list and if the applicant is really serious they’ll come back and ask me for it.’ Or  ‘ It’s too hard to answer the questions so I’ll leave it to one side,’ or actually,  ‘We don’t want to give out this information because presumably it will be used to harm us,’ that still exists within the code-based regime.  And there’s very little one can do currently except persist in reminding the authority and perhaps making a song and dance about it.  Campaigning groups are capable of doing that, but for ordinary individuals it’s not really an option. 

Q: So, to put it bluntly, some public authorities drag their feet or even refuse requests, because they’re worried about who is asking and why?

A: I can certainly speak say, yes that was my experience when I was asking for information.  There’s no doubt in my mind that requests by me and my organisation were refused because of the assumptions that were made about what we were going to do with it.  I assume that’s the experience of journalists the world over – they’re either not provided with the information, or not provided with it fully.  I know that Commissioners have pointed out elsewhere in the world, for example, Ireland, that journalists disproportionately have their requests refused compared to any other section of the population. Now that’s not particularly surprising and there may not be any malice on the part of the authority.  It could be that journalistic requests do fall more into the grey areas of the exemptions, more than requests from members of the public. 

These are the things we need to be alert to.   The new codes of practice issued under FOISA make it quite clear that you can’t require someone to tell you why they  wants the information and you can’t even necessarily establish who they are, if they give you a name – any name - and an address, you can’t question whether it might be the same person, say, that writes for a national newspaper.  The information should be given to a campaigner, as it would be given to a researcher, as it would be given to a member of the public. 

Q:  So the new FOISA introduces a change of approach and culture in the way you describe, but what about its actual scope. Theoretically will a greater range of information be available? 

A:  Potentially yes.  Firstly, it depends on the interpretation of the Act.  Second, the old codes of practice are very much focused on providing information, rather than necessarily providing the original documents from which that information was got, and there is still discussion as to the extent to which authorities should give access to or copies of the primary documentation.  If you compare the old codes and the new Act, they do cover broadly similar areas, but the Act is much tighter in its definition and more neutral in its language.  Certainly the Code was very much, ‘Yes we’ll try to be open, but we’re not going to allow this to disrupt the normal business of government,’ Nevertheless the code, in terms of, for example, made provision for accessing statistical and factual information which lies behind policy decisions, and that is replicated in the Act.  The degree to which people have actually availed themselves of the Code is not clear to me.

Q:  The Act will have a higher profile and will be easier to use.  Do you think those facts in themselves will mean that it’s better used than the Code?

A:  Well, I do expect so.  First of all, in terms of the Code, it has, essentially, to be invoked by an applicant, whereas of course the Act doesn’t. People’s rights kick in whether they know they have those rights or not.  With the Code people almost had to know that they had to trigger the seriousness of their intent to the authority by mentioning the Code. I think also that the decisions which I take will get some coverage and will alert people to the kinds of things they can ask for, so there may be copycat requests.  There’s no real prominence to information revealed by people or organisations under the Code, whereas a dispute over the interpretation of the Act around a specific request will, I think, have a higher degree of prominence.  No-one had a duty to promote the Codes. I have duty to promote the Act, and that’s a fairly unique duty, not many commissioners have that responsibility. We’ll be putting resources into making sure that members of the public are aware of their new rights through a tv advertising campaign at the beginning of next year.  There’s also a guide to the Act that we’re publishing in conjunction with the Scottish Consumer Council, and materials that we’re targeting at harder to reach groups, black and ethnic minorities in Scotland, for example. 

Q:  OK, many thanks for answering these questions and I hope all goes well when the Act comes into force.

A:  Thank you, my pleasure.