It may not be the first FOI decision in the UK; but it is the first FOI decision in the UK to be published, and it sheds some light on compliance, albeit from the perspective of the Scottish Commissioner.
FOISA creates a right of access to information held by Scottish public authorities, with a limited number of narrowly drawn exemptions to protect sensitive information, and follows the Freedom of Information Act, passed in 2000, which applies across the UK.
But FOISA should not be confused with the UK law for which Richard Thomas, the UK's Information Commissioner, carries responsibility. FOISA applies only to the Scottish public authorities – and only those that have been devolved.
In his first published decision under the Act, Kevin Dunion, the Scottish Information Commissioner, took up the complaint of a motorist, identified in the decision only as Mr L.
Mr L wrote to the Lothian & Borders Safety Camera Partnership asking to see the calibration certificate for equipment used in an alleged speeding offence.
But the Partnership told Mr L, firstly, that the certificate constituted police evidence and would therefore not be sent out, and secondly that it was already available on the Lothian and Borders Police web site. Mr L complained to the Commissioner.
According to the decision, one failure by the Partnership in its response to Mr L was in not citing any exemptions that would give it reason to reject the request for information – as required by FOISA. The relevant exemption in this case would have been "information already accessible".
When it was asked by the Commissioner to supply details of the relevant exemptions, the Partnership acknowledged that a mistake had been made and forwarded the certificate to Mr L together with an apology.
Notwithstanding, Mr L asked the Commissioner to continue his investigation, saying he did not want anyone else to face the same difficulties in future.
In fact, after investigation, it appeared that the relevant information was not fully available on-line, and would not have been accessible to Mr L.
Furthermore, the Commissioner ruled that simply making information available on-line does not satisfy the requirement of accessibility, because of the disparity in internet use between income groups and types of household.
"In my view therefore it is not yet possible to say that information which is solely provided on a web site is reasonably accessible to people in Scotland," he said.
"An authority may prefer as its primary source to make it available on a web site but where it receives a request for the information to be made available in another format, e.g. in paper form posted to a home address, then it should do so unless there are overriding technical or cost implications," he added.
He instructed the authority to put in place measures, including staff training and amendments to the Partnership's procedures, to ensure compliance in future.
The decision is the first to be published by the Scottish Information Commissioner, and puts him a step ahead of the UK Information Commissioner's Office, which has published no decisions so far.
OUT-LAW contacted the UK Office today and was advised that the UK Commissioner, Richard Thomas, is still deciding, "in the light of experience with early cases, just how much detail can be made public in relation to decided cases without prejudicing the rights of all parties, in particular the right of appeal to the Information Tribunal."
The Office added that details of its experience so far with FOI will be made public in mid-June.
