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.
