Legal: New guidance on freedom of information

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Scottish Information Commissioner Rosemary Agnew is issuing guidance this week on how public authorities should deal with “vexatious” freedom of information requests.

Section 14 (1) of the Freedom of Information (Scotland) Act allows for an authority to decline to comply with a request if the request is “vexatious”.

The act does not define the word, but the commissioner sets out possible circumstances, such as where it would impose a significant burden on the public body; the request does not have a serious purpose or value; it is designed to cause disruption or annoyance to the public authority; has the effect of harassing the public authority; or, in the opinion of a reasonable person, be considered manifestly unreasonable or disproportionate.

The guidance is intended to clarify the commissioner’s expectations of public authorities and requesters when she applies the descriptions to the circumstances of a particular case.

Agnew said: “It’s the question I get asked most often by public authorities. I’m not making a massive change but I am updating our guidance – and publishing it on our website – in keeping with our own recent appeal decisions here, and incorporating an important upper tribunal decision in an English case earlier this year.”

There have been relatively few appeals to the Scottish Information Commissioner on refusals specifically on S14 grounds.

In the most recent she upheld the refusal of Strathclyde Partnership for Transport (SPT) to accept a 26-item request from Clyde Marine Services Ltd on the basis that it appeared the company was using FOI to pursue its unhappiness over the award of the Gourock to Kilcreggan ferry service. Having looked at the volume, timing and nature of requests over a seven-month period she concluded there was a pattern of correspondence (whatever the intention) of harassing SPT.

In October she overturned the refusal to comply with requests from David Rule for information about the handling of FOIs within the First Minister’s office. Agnew did not accept the argument that his requests represented a significant burden.

She said: “The significant burden justification is set out in guidance but it does not mean that if the authority is under general pressure it can cut back on FOIs. Responding to FOI requests is a statutory requirement. There would have to be a pretty powerful argument that FOI should drop behind non-statutory functions.”

Agnew has repeatedly stressed that better communication should result in greater efficiency in processing FOI requests, and greater confidence for public authorities and members of the public in the system.

“The aim is to explain matters more clearly to requesters and the public authority in how they should deal with requests. It would seriously misunderstand my updated guidance … that authorities could use S14 to answer fewer requests. The Freedom of Information Act gives members of the public a statutory right. It is a serious matter to deny anyone that right,” she said.

Agnew, stressing the important role of a system of internal review of a refusal, added: “It is the golden opportunity for the authority and the question I want them to have in mind is, ‘Do I think my reasoning would stand up to appeal? If not, was the original request properly dealt with?’ The further a dispute goes, the more adversarial and expensive it tends to get and often the essence of the original request is lost. If more effort is put in at the first stage to clarify what is wanted there will be fewer reviews required and, ultimately, fewer appeals to me.”