In May 2011 the SNP won a historic victory in the Scottish Parliament.  Of course it would be foolish to suggest that this was down to their lifelong policy of achieving independence for Scotland(though that doesn’t stop some members of the SNP claiming so).  Undoubtedly though this gives the SNP a mandate to hold a referendum on the question of whether Scotland becomes independent or not.

While it is clear that the Scottish Government have a mandate for a referendum, it is less clear whether they are actually able to hold it.  Questions arise over the legislative competence of the Scottish Parliament in passing legislation to hold the referendum.  A referendum on Scottish Independence cannot be held without first having passed primary legislation.  Those outside of the legal world could be forgiven for thinking what the problem is, after all the SNP won a majority and therefore the people of Scotland have confidence in them and in their manifesto and would undoubtedly expect the SNP to do what it promised in its manifesto.  However, the problem is not a simple one.

The Scottish Parliament is not supreme in the same way that the UK Parliament is in Westminster.  Its powers are set out within the Act of Parliament that brought it into being: The Scotland Act 1998. That Act in effect gives Holyrood the permission to pass legislation on any matter that is not reserved to Westminster.  Essentially, any area that’s not specifically mentioned within the Scotland Act 1998 as being reserved is fair game for the Scottish Parliament to legislate.  A political party could make all the promises it wanted in the world during an election campaign, but if the Scottish Parliament doesn’t have the legal power to legislate then quite simply it cannot legislate.

Those who sit within the Scottish Parliament have free will and could quite clearly pass legislation on a reserved matter.  However, that legislation would be unenforceable.  The Scotland Act 1998 states quite clearly that any “Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.”  (Section 29(1)).  There is a process whereby an Act of the Scottish Parliament can be challenged, first in the Court of Session and laterally before the Supreme Court of the United Kingdom, if it is believed that it is outside of the legislative competence of the Parliament.  If the Courts so find then the legislation is declared to be ultra vires and is struck down; in essence it has no legal effect whatsoever.

What does all of this have to do with a referendum on Scottish Independence?  Schedule 5 of the Scotland Act 1998 provides a list of “reserved matters”.  The second matter on the list of those that are reserved to Westminster is “the Union of the Kingdoms of Scotland and England”.  A referendum on Scottish independence relates to the Union of the Kingdoms of Scotland and England.  The purpose of the referendum is to see if the Scottish people wish to bring an end to that 304 year old union.  The SNP are obviously in favour of bringing an end to that union and would hope that the result of any referendum on Scottish Independence would eventually bring the union to an end.

It would appear that to hold such a referendum is currently out with the legislative competency of the Scottish Parliament.  There are persuasive arguments for the position that it is not out with the legislative competency of the Scottish Parliament.  However, my own personal view is that any legal challenge to the referendum legislation under the current law would more likely than not be held to be ultra vires.

Whatever your view on the legislative competence of the Scottish Parliament on holding this referendum under the current law, it would be foolish to think that there would be no challenge to the legislation.  Any challenge to the legislation could delay the holding of the referendum by a number of years.  It could take as many as two or three years before a determination from the Supreme Court as to whether the legislation is within the legislative competence of the Scottish Parliament or not.

If we assume that the legislation would be challenged and it were then found to be within the legislative competence of the Scottish Parliament and follow the SNPs preferred timetable for passing the legislation it could be as late as 2016 or 2017 before the referendum could be held.  If it were to be held in 2016 it could get mixed up with the planned elections to the Scottish Parliament in May of that year.  The delay would only lead to more uncertainty and could be very damaging for Scotland and the UK in economic terms.  Business does not tend to like this level of uncertainty in politics and it might well put off foreign investors from bringing much needed investment into Scotland and the UK.

There is, I submit, no harm whatsoever in Westminster passing primary or secondary legislation clarifying the position and eliminating any potential challenge to the resulting legislation.  One would expect the SNP to welcome such clarification as it means they can progress forward with the referendum with no doubt whatsoever that the referendum would be legal and won’t get tied up in a legal row over whether the Scottish Parliament had the power to pass it.

While it might be for the Scottish people to decide whether they wish to break away from the rest of the UK and become independent, Westminster has a place in the debate.  Scottish Independence won’t just affect the people of Scotland but will affect everyone in the United Kingdom.  Scottish MPs sit in Westminster and have just as much right to represent their constituents as the MSPs in Holyrood and those who represent English, Welsh and Northern Irish Constituents have the right (and indeed the responsibility) to play their part in the debate in order to represent the best interests of their constituents.

The legal question is by no means certain and people on both sides of the “is it legal?” divide undoubtedly have justification for their opinion.  It would, in my view, be better for all sides if this question was put to rest quickly, without years of expensive legal action in the Court of Session and Supreme Court, and the people of Scotland allowed to have their opinion known as soon as is reasonably practicable.

The UK Government have launched a consultation on some of the questions surrounding the legislative competence of the Scottish Parliament holding a referendum and what should be done to ensure that any referendum is legal, fair and decisive.  The consultation document can be found here.  Responses are invited from anyone, regardless of their place of residence, by Friday 9 March 2012.

What the Commissioner’s decision doesn’t do is make private E-mail accounts generally open to FOI.  They are no more covered by the Act then personal correspondence carried out on official E-mail accounts.  Personal correspondence and party business are not covered by FOI whether they are held on official or personal E-mail accounts.  The Commissioner’s decision doesn’t mean that employees within public bodies need to hand over the passwords to their private E-mail accounts to their bosses so that they can be searched if an FOI request comes into the authority to see if relevant information is held on a personal account.

What it does require is that when the FOI Officer contacts an individual to see if they have any information that falls within the scope of a request received they have to consider whether there may be anything relevant within the personal E-mail account and if so search for it and hand it over to be considered along with the other information held.  Public sector employees, Ministers and policy advisers don’t need to worry about their personal E-mail addresses being disclosed as this would undoubtedly breach the data protection principles and be exempt from disclosure.  In any event the FOI legislation doesn’t provide a right to a copy of the E-mail only to the information contained within it.

What it requires is honesty on the part of public sector employees and others subject to FOI laws.  That may be a tall order for some in the public sector, especially politicians.  Knowingly not disclosing information held within private E-mail accounts would constitute a criminal offence.  Likewise deliberately using private E-mail addresses as a way of trying to conceal it would constitute a criminal offence.

Does anyone really need to worry about their private E-mail accounts being accessed?  Well, not really.  Simple policies put in place by public authorities could avoid many of the issues.  Banning the use of private accounts for official business would be a good place to start.  I cannot think of a conceivable reason as to why any person subject to FOI would need to use their private E-mail address on a regular basis for work related activities?  It’s unprofessional for a start!  If in the rare event that a person does need to use their private E-mail account adding an official E-mail address into the “cc” field (either the employees own or the official e-mail of the recipient(s)) would also ensure that it is held officially on the authorities systems.  It could then be picked up in the normal way that E-mail correspondence is identified when carrying out relevant searches in response to an FOI request.  Indeed, the copying in of official E-mail addresses is suggested by the Commissioner as being a policy that public authorities should have in force to ensure that issues around information being held on private E-mail addresses is not missed.

The suggestion that the commissioner’s decision that FOI applies to text messages and private E-mails is an “over-extension of its original intent” is not something that can really be substantiated.  It appears as if it might well be an attempt to amend the FOI laws to make them tighter and easier for Ministers (in particular) to avoid.  Such moves must be forcefully objected to.  Any tightening of the FOI laws must be resisted.

As for the suggestion that Cabinet minutes should be absolutely exempted from FOI laws by the outgoing Cabinet Secretary are, to put it mildly, a ridiculous suggestion.  There are a number of exemptions under which these can be exempt from disclosure and there is not a steady stream of decisions coming from the ICO or the Courts forcing the Government to release such minutes.  It’s not hard to argue that maintaining the exemptions being relied upon to exempt the minutes (and other papers) is in the public interest.  However, it should be capable of requesting these and for it to be carefully considered whether it is actually in the public interest to withhold the information contained within them.  Providing an absolute exemption to Cabinet minutes and documents would, in my view, run counter to the fundamental presumption of the FOI laws and that presumption is one of disclosure.

This really is a non-issue and I fail to understand why Ministers and others seemed to be of the opinion that official information held on behalf of a public authority on an E-mail system out with that of the authority’s official E-mail system is not covered by FOI.  I also fail to see why private E-mail addresses would need to be used for official government business.  They can’t possibly offer the same level of security as the GSI network.  I can’t imagine that Google provides the required level of security required for the processing of government business!   Security issues aside, providing remote access to E-mail is not some advanced technology, plenty of private sector businesses provide remote access to not just E-mail but a whole load of systems to their employees.  If working from home becomes essential for whatever reason ensuring public sector employees have access to their E-mail can’t really be considered as being beyond the capabilities of the state.  A prime example being @LynnFOI who accessed her work E-mail from home on CHRISTMAS DAY to respond to someone’s FOI request!#

Anyway, make up your own mind.  Is it really an “over-extension of its original intent” or just an excuse to try and restrict information access rights?  I know what I think!

In January the media were still somewhat pre-occupied with Christopher Jeffries who had been arrested on suspicion of murdering Joanna Yates.  Of course, later another man was convicted for that murder that took place in December 2010.  However, the treatment of Jeffries by the media raised some important questions over the way in which the media reported ongoing police investigations and their obligations under Contempt of Court laws.

January also saw the first former Member of Parliament to be sentenced over the 20009 expenses scandal which had been trundelling along causing huge damage to the reputation of Parliament and many who sat within it.  The first former MP to be sentenced was David Chaytor, a former Labour MP, who was given an 18 months custodial sentence for his part in the expenses scandal.

January also brought us the end of the Tommy Sheridan Perjury saga.  This had been running since 2006 when Tommy Sheridan, a former MSP, won a defamation action against the News of the World at the Court of Session.  It later transpired that he had perjured himself during that trial and having been convicted in December by a jury at the High Court in Glasgow following the longest ever perjury trial in the history of Scots law, Sheridan was sentenced to 3 years in custody.

February saw an impassioned debate in the House of Commons on the issue of Prisoners’ votes.  This issue has been brushed aside for a number of years and follows the decision in the European Court of Human Rights in the Hirst case.  The House of Commons overwhelmingly rejected giving votes to convicted prisoners.  However, with the Hirst judgment from the European Court and pressure from the Council of Europe 2012 could see legislation extending the franchise to some prisoners being brought forward.  In any event, the current Government will need to deal with it before the demit office in 2015.

In March the outgoing Lord Advocate, Dame Elish Angiolini QC, put on record her thoughts on the requirement for Corroboration in rape cases.  Dame Elish’s argument centred on the fact that, in her view, the Corroboration requirement in rape cases could be open to challenge on the grounds that it breaches the victim’s rights under the European Convention on Human Rights.

In April Lord Carloway issued his consultative document on criminal procedure and evidence in Scots law.  Lord Carloway was asked to conduct the review by Cabinet Secretary for Justice, Kenny MacAskill MSP, in November 2010 following the October 2010 UK Supreme Court decision in the Cadder case.  The decision caused chaos in Scotland as the UK Supreme Court held that the practice in Scotland of allowing the police to detain someone and question them for a period of up to six hours without access to a Solicitor was a breach of the suspect’s Article 6 rights.

May was quite a busy month in terms of blogging on this site.  The verdict of the jury at the Inquest into the death of Ian Tomlinson at the 2009 London G20 protests was that Mr Tomlinson had been unlawfully killed by PC Simon Harwood.  Some people in the Police were not too happy with this verdict and appeared to be of the view that they should be beyond challenge because taking decisions in these situations was difficult.  Not something that I agreed with and I made that clear when I wrote about the Inquest’s verdict.

On Thursday 5 May 2011 Scotland went to the polls to elect the fourth session of the Scottish Parliament.  The result of that election was something that many thought to be quite impossible: a single party securing an overall majority in the Scottish Parliament.  The SNP became the first party to secure an overall majority in Parliament.  Following that result came analysis of what it now meant for the SNP and also an examination of what happened to the Scottish Labour Party in that election as they had lost a number of seats in their traditional Glasgow heartland.

May also saw Sky News beginning to show live streaming of cases before the UK Supreme Court on the Sky News website, this represented a big milestone in legal history.  The UK Supreme Court is the first UK Court to have its proceedings routinely filmed and broadcast live.  Other UK Courts are likely to follow the UK Supreme Court’s lead and we could see cases routinely being shown on TV in the years to come.

By the End of May the Privacy debate was well and truly underway as Super-injunctions and anonymised injunctions came in for sustained attack and criticism.  One of the big cases that was involved was of the footballer known only as CTB who was widely known and named frequently on Twitter but who could not (and indeed still cannot) be named in the traditional press.  The UK Parliament began looking at this issue and the usual desperately poor reporting of legal matters confused the debate with all injunctions quickly becoming known as, quite incorrectly, super-injunctions.

My look at Super-injunctions on this website got interrupted by the outrageous attacks made by Alex Salmond and Kenny MacAskill, no doubt bolstered by their recent historic electoral success, against the UK Supreme Court and its involvement in Scottish criminal cases.  Some of the comments made by Salmond and MacAskill were deeply personal and highly inappropriate for senior Government officials to be making about the Judiciary.

Finally May saw the new SNP Government publish its first piece of proposed legislation.  This was the controversial anti-sectarian Bill that would later pass into law with almost no meaningful changes having been made to it.

June brought the sad news of the death of Lord Rodger, one of Scotland’s two justices on the UK Supreme Court.  Lord Rodger’s death was a big loss for that Court and for the Scottish legal profession.

In July the Crown Office instructed Strathclyde Police to carry out an investigation into phone-hacking in Scotland.  This followed revelations that phone-hacking, once thought to have been confined only to the News of the World might have been happening at its Scottish edition.  The Crown Office instructed Strathclyde Police to look at four things while it conducted this investigation including police corruption in Scotland and perjury allegations arising out of the trial of Tommy Sheridan for Perjury the previous year.

July also saw the last ever edition of the News of the World.  The paper ceased to be published following the revelations that illegal and unethical practices were not confined to a rogue few but were commonplace at the newspaper.

In August the Metropolitan Police shot and Killed Mark Duggan and what followed was days of mass public disorder, violence and looting in towns and cities around England.  Courts sat all night in the days that followed the riots and soon people were beginning to question the sentences being handed won by the Courts.  People who had never before been convicted of a crime or had come to the attention of the police were being sentenced to lengthy period of custody for low values thefts carried out during the disorder.  Most of the sentences were later upheld by the Court of Appeal.

October and November saw the debate around the SNP’s anti-sectarian Bill intensify but it was becoming clear that the SNP were not for dropping the Bill.  Minor revisions were eventually made to the Bill, but the Bill largely remained in its original format and the huge number of criticisms levelled against the Bill were left unaddressed as the Bill passed at Stage 3.  It was the first example of the SNP using its overall majority to force through poor legislation.

In November Lord Justice Leveson began his inquiry into the Culture, Ethics and Practice of the Media.  Lord Justice Leveson was appointed by the Prime Minister in July to conduct an inquiry and to make recommendations in light of the wide-scale corrupt and illegal practices uncovered at the News of the World and which are also considered to extend beyond the News of the World into other tabloid newspapers.

In December it was announced that Lord Reed, an inner-house judge of the Court of Session, had been appointed as a Justice of the Supreme Court.  His appointment filled the vacancy left by the passing of Lord Rodger earlier in the year.

So, that’s a quick round-up of some of what has happened in 2011 in the UK legal and political world.  Much, much more has happened over the course of 2011.  What were your highlights of 2011?

We have not in the past had a system to check the identity of requesters but have now implemented a system to randomly seek proof of identity. (Emphasis added)

Section 8 of the Freedom of Information Act 2000 (FOI Act) does require that an applicant provide their real name when making a request for information.  However, nothing within the legislation actually provides that a public authority can check the identity of an applicant.  Where a public authority believes that an applicant may be making their request under a pseudonym then it has become practice that rather than simply refusing the request that public authority gives the applicant an opportunity to prove their identity.  After all, this is something that they would be required to do if they wished to complaint to the Information Commissioner that a public authority has failed to comply with a valid FOI request (the request not being valid if it fails to use the applicant’s real name).

There are a number of reasons why the true identity of the applicant is needed.  Firstly, the authority needs to ensure that what is being made is not actually a Subject Access Request under the Data Protection Act.  This requires the authority to follow a separate framework for providing the information and the FOI Act provides an absolute exemption to a public authority where the applicant is requesting their own personal information (Section 40(1)).

There is also the question of considering whether a request is vexatious or repeated.  That might be harder to do if a person is able to make applications for information under one or more pseudonyms.  A public authority is not required to comply with a request for information that it deems is vexatious or repeated (Section 14).  This is to try and safeguard public money.  Providing answers to requests for information costs public authorities in both time and money and it is not right that they be required to comply with a request that is vexatious or one which is repeated.

The final main reason as to why it is important to know the identity of the applicant is so that it can properly apply the fees regulations.  A public authority is not required to comply with a request if to do so would exceed the appropriate fee (either £450 or £600 depending on the authority).  Again, this is about safeguarding public resources.  The providing of information to an applicant should not cause a significant drain on the public authority’s resources.  Public Authorities exist to provide specific functions and their finances are better spent on providing those functions to the public (although I do believe that FOI is necessary and essential, it’s reasonable that the costs of FOI are limited).  Public authorities can group similar requests by an applicant made together and if those requests as a whole would exceed the appropriate cost limit then they can all be refused on costs grounds.  This is to prevent applicants simply splitting their requests up into smaller chunks in a bid to avoid the cost limitations.  If an applicant is able to make these smaller requests under various pseudonyms it would defeat the purpose of having the fee limit and the aggregation provisions in the first place.

However, at the same time a public authority is supposed to treat a request for information in a way that is blind to the applicant and to the motives of the applicant for requesting the information.  While not expressly stated in the legislation the lack of any reference to being able to refuse on the grounds of who made or why the request was made (beyond vexatious and repeated requests) has been taken to mean that the authorities should be blind to these matters when processing the request.

So, what does all this have to do with the quote I mentioned at the start of this article?  Well, quite simply Bristol City Council has said that it has introduced a process of randomly checking the identities of FOI applicants.  This would go against what the Information Commissioner and the Tribunal considers to be the appropriate way to deal with an FOI request.  It is not being blind to the applicant or their motives and without having a good reason for requesting proof of identity the Council could land itself in a spot of bother if it fails to respond to what is a valid request for information within the statutory framework.  There are strict time limits laid out in the FOI Act as to when an applicant must receive a substantive response to their request for information (including a notice refusing the request).

When I telephoned the Council in October to confirm that they really did mean a random check I was told that this was in fact their policy.  I then spoke with the Information Commissioner’s Office who said that if this did turn out to be the case that they would be concerned about such a policy.

I made an Information request pursuant Section 1(1) of the FOI Act (this is what gives people the right to approach a public authority for information).  The Council responded to the request for information on 23 November 2011.  The Council’s response did not actually comply with the requirements of the FOI Act.  It took the request as being “what is the Council’s policy on this” rather than actually supplying the content of the policy documents as requested by me (among other things).  The Council failed to tell me whether it held the information and to provide it to me (or a notice that it was exempt), but instead sent me to its website which contained a short paragraph on checking the identity.

As the Council had failed to respond to the request for information I sought from the Council a review into its response.  The FOI Act doesn’t set out any statutory timescales for responding to such requests (unlike the Scottish FOI Act), however the Information Commissioner has issued guidance on this matter to fill the gap left by it not being provided for in the legislation.  The Information Commissioner’s guidance states that:

[T]he Commissioner considers that a reasonable time for completing an internal review is 20 working days from the date of the request for review. There may be a small number of cases which involve exceptional circumstances where it may be reasonable to take longer. In those circumstances, the public authority should, as a matter of good practice, notify the requester and explain why more time is needed.

In our view, in no case should the total time taken exceed 40 working days.

In my request for review I made reference to the Information Commissioner’s guidance and let the public authority know that I would contact them if I hadn’t received a response from them (whether that be a full response or notification that it had not been possible to conduct a review) by a certain date.  This date represented the twentieth working day following receipt.  The Council didn’t respond and so I have written to them prompting them and advising them that if no response is forthcoming by a specified date that I would exercise my rights under Section 50 of the FOI Act and apply for a decision from the Information Commissioner to the effect that they failed to comply with the request for information.

Are Bristol City Council being evasive?  If they are why would this be? One can only speculate, but it would seem rather odd that the request could not be answered fully within the twenty working days permitted by the request (subject to any public interest considerations).  The bulk of the request related to policy documents presumably held by their FOI Officer given it relates to their FOI policy.  The remained related to communications either internally or with the ICO when developing the policy.

It will be interesting to see what comes back from Bristol City Council in terms of their policy on identity checking.  Their failure to answer the request the first time and the delay without explanation in conducting the internal review does put more weight to the “being evasive” category.  What exactly does Bristol City Council have to hide?

The request made and all associated written correspondence can be viewed here.  Certainly worth keeping an eye on to see what happens.

The applicant wrote to the Scottish Ministers requesting from the First Minister’s Office all information held within correspondence with named individuals.  The Scottish Ministers did not respond to the applicant’s request and that applicant requested an internal review be carried out under Section 20 of FOISA.  The Ministers did not respond to this request and the applicant applied to the Scottish Information Commissioner for a decision in terms of Section 47(1) of FOISA.  When the Ministers were notified of this application they wrote to the applicant advising them of the outcome of their review.  In that decision the Ministers took the view that the request was not valid in terms of Section 8 of FOISA.  In doing so they relied upon the judgment of the Court of Session in Glasgow City Council and Dundee City Council v Scottish Information Commissioner.  This decision clarified that information requests must describe the information sought.

Unhappy with the Scottish Ministers’ decision the applicant applied to the Commissioner again in terms of Section 47(1) for a decision.  The Commissioner’s decision notice has a number of interesting things contained in it.

In paragraph 9 of the decision notice it states that the Commissioner is satisfied that it would be appropriate to treat the applicant’s E-mail requesting the information not as one single request for information, but rather 19 separate requests for information (one for correspondence between each of the named individuals).

The Decision Notice states in paragraph 9:

[I]t would be wholly artificial (and thus unreasonable) to do otherwise. If valid, each of these is quite capable of standing alone and is in no way dependent on any of the others.

FOISA sets out what is required in order to make a request for information a valid request for information.  This can be found with s.8 of FOISA.  The request must contain the applicant’s name, an address for correspondence and describe the information sought.  The Ministers’ submissions to the Commissioner focussed entirely on s.8(1)(c) of FOISA which provides that the request must describe the information sought.

The Minister’s argued in their submissions to the Commissioner that the applicant’s request was a general request for information held on specific named individuals and did not clearly identify the information that he was seeking.  The Ministers’ contended in their submissions that applying s.8(1)(c) of FOISA and the decision of the Court of Session in the Glasgow City Council case that the applicant’s requests were not valid.

The Minister’s contended that the applicant’s use of the phrase “information contained in correspondence” was too vague and was an insufficient description of the information sought.  The Minister’s further argued that it provided no assistance to them in locating the information held which fell within the scope of the request.

The Ministers’ further submitted that the request gave insufficient information as to allow them to identify the individuals to whom the applicant was referring.  They utilised Linkedin to demonstrate to the Commissioner the number of people as to whom the applicant could have been referring.

In paragraph 15 of the Decision Notice the Commissioner found that the applicant sought all information contained within a specific type of document (i.e. correspondence).  The Decision Notice states at paragraph 15 that:

The Commissioner finds it reasonably clear that the applicant is seeking the information recorded in that type of document. The word “correspondence” provides specification about the type of communication.

The commissioner did not accept the Ministers’ argument that the request must stipulate the subject matter of the correspondence in order to satisfy the requirements of s.8(1)(c).  The Commissioner felt that to do so would run contrary to the overall aim of FOISA, which is to provide openness with the absolute minimum number of formal requirements in order to achieve that aim (paragraph 16).

The Commissioner also noted that some of the names on the list of persons supplied by the applicant were prominent people in the public eye.  This was eventually accepted by the Scottish Ministers.  However, they maintained that some of the names on the list were “exceedingly common and could refer to private individuals or officials in the Scottish Government with those names” (Paragraph 17).

In Paragraph 18 the Commissioner applied a “common sense” approach and took the view that it would be appropriate to interpret the names by way of a common characteristic (i.e. that they were all people of note).  The Commissioner commented that:

It does not appear reasonable to start from the premise that the applicant has constructed a basically random list of subjects, some of whom are public figures and some of whom are not.

The Commissioner referred to the provisions in s.1(3) which relate to seeking clarification when considering what the case might be if there were more than one person with the same name who was of prominence.

The Commissioner found that the requests as submitted by the applicant were valid in terms of s.8(1)(c) of FOISA and required that the Scottish Ministers to review their handling of the requests and notify the applicant of the outcome of that review.

The Commissioner went on to make a number of findings in relation to technical aspects of the handling of the request which relate to the timescales set out in ss. 10(1) and 21(1) of FOISA.

Comment

It does seem rather odd that the Scottish Ministers took the view that the request by the applicant was not valid.  It seems quite clear from the Commissioner’s explanation of the request that it was clear as to what the applicant was seeking.  If the Ministers had been in any doubt as to which particular individual with a name listed within the applicant’s request that the request related to then it was open for them to use the mechanism under s.1(3) of FOISA.  This would have allowed the Ministers to go back to the applicant and ask for further information in order to help them locate what the applicant was looking for.

What is particularly interesting about this Decision Notice was the view that the Commissioner took in relation to the number of requests made.  The Commissioner found that the E-mail sent by the applicant to the Scottish Government was in fact making a separate request for information for each individual listed.  This decision might well assist the applicant in terms of the fees regulations.  Under FOISA no public authority has to comply with a request that is estimated to cost more than £600 to process.  Unlike under the Freedom of Information Act 2000 this £600 applies to all public authorities covered by FOISA and includes the time taken to redact information from documents that is not to be disclosed.

The requests are sufficiently different that it would be hard for the Scottish Ministers to argue that they should be aggregated together whereas if the request was to be considered as one single request rather than 19 separate requests it is quite likely that it would exceed the £600 limit in terms of costs.

The Commissioner also took the opportunity to clarify that FOISA does not entitle people to request copies of documents (a point brought out in the Glasgow City Council and Dundee City Council case), but that any request for documents should be taken to mean the information contained within a document.

The Commissioner’s decision seems entirely reasonable.  It will, I’m sure, provide some clarity for the public and public authorities as to what approach should be taken when a list of names is presented within a request for information under FOISA.  Of course, it is far more sensible to take the time to specify clearly in the request exactly what information is sought.  Taking an extra few minutes to “flesh out” the request to provide as much clarity as possible can save a lot of time in the long term.  Applying to the Commissioner for a decision is a lengthy process.  In this instance the Decision Notice was issued more than six months after the request was submitted.

The Commissioner’s Decision can be read in full by clicking below:

Decision 245/2011 Mr David Rule and the Scottish Ministers

Lord Reed was appointed a judge in the Court of Session and High Court if Justiciary in 1998 and was appointed to the Inner house in 2008.  Lord Reed has sat in the European Court of Human Rights on an ad hoc basis and was one of the Scottish Judges who was drafted in to the UK Supreme Court following the death of Lord Rodger.

Lord Reed has a wealth of experience to take to the Supreme Court, principally around Commercial, Public and European Law.

With Lord Reed having been appointed to the Supreme Court and with Lord Hamilton due to retire next year there will be fresh faces to the benches of the Court of Session and High Court of Justiciary in the first half of next year.  The Judicial Appointments Board for Scotland is already seeking applicants to fill vacancies expected to arise until June 2012 and suitably qualified persons are invited to apply by 9 January 2012.

Lord Reed’s appointment to the Supreme Court will become effective from a date to be agreed between him, the President of the UK Supreme Court and Lord Hamilton.

At a time when salaries are being frozen or cut and other household expenses such as electricity and gas and food are increasing this represents a further pressure on already tight household expenses.  ScotRail argues that this price rise will help them to “continue to invest in service improvements while ensuring that rail travel remains value for money.”

This will not be welcomed by most regular users of the ScotRail network who will see it as an addition expense which they can probably ill afford in the current economic climate.

When asked about people feeling as though they were being priced off the rail network in Scotland ScotRail had nothing further to add.

Since the fresh revelations over the summer various investigations and inquiries have been taking place. The Metropolitan Police are investigating the wider issues of phone and e-mail hacking, Strathclyde Police are investigating similar matters in Scotland at the direction of the Lord Advocate, House of Commons select committees have heard evidence on the matter, including from Rupert and James Murdoch, and much has been said and written in other forums.

The inquiries by Lord Justice Leveson and the House of Commons select committee have had to tread very carefully in order to safeguard any potential future prosecutions that result from the investigations by the Metropolitan Police and Strathclyde Police. The Police have suffered their own criticism though. The Metropolitan Police suffered some quite high profile casualties as a result of its failure to investigate the issue properly and fully in 2006 when it first came to light and Glenn Mulcaire was given a custodial sentence for phone hacking.

At the time the News of the World insisted that it was confined just to one journalist and to a private investigator therefore limiting the scandal to the Royal Family. However, as time has passed it transpired that the practice was, at the News of the World at least, quite widespread. It is understood that the paper hacked into the voicemail of Milly Dowler deleting messages from it when it became full. This gave the police and more importantly her parents, family and friends a false sense of hope that she might still be alive. The public, quite rightly, condemned this particular use of phone hacking and were quite clearly disgusted by it.

The evidence that has been given to the Leveson Inquiry has been rather interesting and has raised some important points and issues. It has, however, given us an insight into the mind-set of the tabloid press. Some of the most controversial evidence given to the Leveson Inquiry to date came from a former News of the World journalist, Paul McMullan. It’s hard to select just a few of the things that Mr McMullan said during his evidence that caused one to raise an eyebrow as there are so many examples from which to choose. However, as I have identified above the hacking of Milly Dowler’s phone I believe that this would be a good starting place to look at Mr McMullan’s evidence.

In respect of the hacking of Milly Dowler’s mobile telephone voicemail messages Mr McMuallan appeared to argue that the hacking was in fact a good thing. His argument was based upon the premise that the police can get nothing right and that their inability to investigate properly means that journalists need to fill the gap and investigate for them. This, I submit, is a false presupposition to have made. Yes, there are times in which the police do not investigate things properly. Indeed it probably happens fairly frequently. Senior officers can get drawn down lines of inquiry that they believe are the correct ones and ignore others resulting in innocent people being caught up in the wake of the investigation, or  the investigation stalling, evidence being lost and the police without any further direction to take the investigation in. However, I would suggest that failings on such a grand scale, particularly in high profile cases, are really quite rare.

The press, no matter how well meaning they might be, should not be engaging in any activity that frustrates a police investigation. The Milly Dowler example is a good one for illustrating this point. The actions of those involved in the hacking were not only illegal, but because the messages were being deleted it brought a false sense of hope to the family and friends that Milly might still be alive, after all he voicemail messages were clearly being listened to.

Mr McMullan’s evidence to the inquiry was, in general, just as shocking as it was revealing. It appeared that he had no moral or ethical compass whatsoever and took the view that anything that was necessary to get a story was acceptable. Mr McMullan also failed to appreciate that there is a significant difference between what the public are interested in and the public interest. Simply because the public are interested in something doesn’t mean that they should in fact be given it on the pages of a newspaper.

There are some really quite perplexing problems to deal with here. It is clear that the press need to be ethical in the way that they carry out their duties. While the rule of law is important it is not inconceivable that a story of such great public interest cannot be obtained by any legal means. It would therefore be, in my view, appropriate to act outside of the law in order to obtain the evidence needed to reveal it. It should not, however, be a regular practice and should be reserved for only the stories which carry the gravest public interest considerations. The principle question in my view should be that in all the circumstances was the infringement of the law fair, reasonable and justified?

The word “regulation” has been bandied about an awful lot since the fresh revelations of phone hacking over the summer months. Principally it would seem that the argument that as the press has failed to self-regulate itself that an external regulator must now take over this role is becoming a somewhat popular one. I would fundamentally disagree with this proposition for two main reasons. Firstly, what is really meant by “the press” is “certain sections of the press, in particular the tabloid press”. As has been pointed out much of the press is more than capable of abiding by and upholding basic moral and ethical standards. Not all newspapers, for example, have been involved in the interception of voicemail messages, not all newspapers regularly engaged in “blagging” information, not all newspapers regularly employed the services of private investigators. We are, in effect, looking at one small section of the press and it is important to bear this in mind. My second reason for disagreeing with this proposition, and it is by far and away the most important, is that in a free and democratic society it is both necessary and desirable to have a free press.

Countries of whom the UK is often critical in terms of their adherence to commonly understood standards of democracy and human rights will often be ones where the press is heavily regulated or censored. It would be highly undesirable to follow those countries down the routes of licencing journalists and subjecting them to regulatory regimes.

There are, of course, laws in place to protect the morals and decency in society. It cannot be the case that journalists have a “get out of jail free card” by virtue of their chosen profession when it comes to breaking the civil and criminal laws of this country. Indeed the same would be applicable to the organisations that employ journalists.

When a journalist breaks the criminal law there is a balancing test that must be carried out. That balancing test is essentially looking at two competing elements of the public interest. First is the public interest of the story which they had written as a result of obtaining evidence by unlawful means. This then has to be balanced against the public interest in upholding the rule of law and prosecuting those alleged to have broken the criminal law. It is for prosecutors to decide, in the first instance, whether the public interest in prosecuting the journalist for their alleged infringement of the law outweighs the public interest surrounding the story that they broke.

Of course there are other factors that would need to be considered in any prosecution decision. Firstly, it would have to be considered whether the evidence obtained illegally could have reasonably been obtained in a way that was legal? Have all reasonable attempts been made to obtain the evidence legally?

The issues are not just strictly confined to the auspices of the criminal law. The issues surrounding press practices, conduct and ethics find themselves in the territory of the civil law also. Perhaps most acutely in terms of civil law areas are those of defamation and privacy. The latter of these two has proved to be rather controversial in recent years.

There is a fundamentally understood right to privacy. All people are entitled to a private and family life and there are elements of our lives that we all wish to keep private. That is not necessarily because, as Mr McMullan would have us believe, we are paedophiles or are up to no good. Privacy is not, as Mr McMullan would have us believe, only the space needed for people to do bad things. Yes, undoubtedly some people do get up to bad things in their private life. However, very few of us would be happy with, as an example, a copy of our full medical records published with nothing redacted.

There is a need, therefore, to consider carefully when to begin publishing details of a person’s private life for anyone to read. I remain entirely unconvinced that much of what has been published under the guise of being in the public interest in relation to people’s private life is indeed within the public interest. I rather suspect that it is more likely to fall into the category of things that the public are interested about (although I personally fail to understand why).

There are of course innocent people to consider in these situations. Anyone who has experienced the breakdown of a relationship because of an unfaithful partner will know the pain and suffering that it causes not only the other partner but any children who also happen to be involved. Imagine for a moment that your partner has an affair with another and the way in which you discover is by seeing it on the front page of the Sun. Imagine for a moment an incredibly painful and emotional time in your personal life being splattered across the pages of the Daily Mail. What if you opened the pages of the Daily Record and saw your partner kissing another person? Nobody wants that to be in public domain for everyone to read.

When we talk about privacy in these cases we are often talking about not only the privacy of the celebrity who has allegedly had the affair but also the privacy of their wider family. There appears to me to be little thought given to that dimension by certain sections of the British press.

I remain entirely unconvinced that a person’s apparent hypocrisy as portraying themselves as a faithful family orientated person necessitates the divulgence of the details of an alleged affair into the public domain. There might be, on some occasions, a public interest in such situations being divulged into the public domain, but I suspect that they would be few and far between and cannot think of any of the recent “kiss and tell” stories that have been divulged this year that would be sufficiently serious enough to justify their being published.

I am not suggesting that people’s private lives are completely off limits. There must be a public interest in interfering with that right though. An example might be the revelation that former Home Secretary Jacqui Smith had claimed for adult-rated films on her expenses. On its own the nature of what was claimed for might not have been in the public interest but in the wider scandal in which it came to light that might well have, and in my view did, shift the public interest balance in favour of identifying them as adult-rated.

I have written on this site before on the question of super-injunctions (those posts can be read here and here) and I do not want to spend much time considering them here other than to say that they are somewhat of an anomaly given the way in which social media is influencing the way in which people get their news. There are also jurisdictional issues to consider.  An example would be the case of CTB and how a Scottish newspaper could openly name CTB while those in England could not.

Injunctions, or in Scotland interdicts, clearly do have their place. They are granted only after careful consideration of the evidence placed before a court. Evidence which people openly flouting them and breaking them on Twitter, or indeed on the floor of the House of Commons, probably have no knowledge.

It will certainly be interesting to see what Lord Justice Leveson proposes in his final report and just what will come to light as he continues his inquiry and as the police investigations continue. However, I would lament proposals for regulation of the press by way of an “independent regulator” as that would begin to take us down a path that endangers free speech and expression. Perhaps, as has been suggested by some already, that tough financial penalties for those press organisations who wilfully flout privacy rules in their quest for a story without good justification. The idea of punitive damages may not be such a bad one if it were to avoid going to down the path of regulating the press. I am only glad that it is not I who has been tasked with brining proposals forward on this issue because if the wrong proposals are brought forward it could have seriously damaging and long-lasting effects on our democracy.