New Scottish Information Commissioner and other recent developments in Freedom of Information 

May, 2012 - Alison White

Earlier this month the new Scottish Information Commissioner (SIC), Rosemary Agnew, took up her position.  Since Kevin Dunion finished his second term at the end of February his Head of Enforcement, Margaret Keyse, was Acting Commissioner until Ms Agnew was able to take up her new post.  As you would expect the SIC’s team has carried on the work that Mr Dunion set in place but only time will tell what Ms Agnew’s approach to the role will be.  There are a number of issues where Mr Dunion felt that further work and development of the Scottish Freedom of Information legislation was required and he set this out in his Special Report to the Scottish Parliament in January this year entitled “Informing the Future”.  It will be interesting to see how the new SIC will set her stamp on her role.

The UK legislation is equally undergoing a review at the moment but in different circumstances.  The Justice Select Committee is currently undertaking post-legislative scrutiny of the Freedom of Information Act 2000 (FOIA).  The Committee is looking at three questions: (i) does the Freedom of Information Act work effectively?; (ii) what are the strengths and weaknesses of the Freedom of Information Act?;  and (iii) is the Freedom of Information Act operating in the way that it was intended to?  The Committee has received written responses but has also held a number of hearings – the most recent involving Jack Straw and, separately, representatives of the British Union for the Abolition of Vivisection who have used FOI to further their campaigning. 

The status of private emails and other similar forms of communication in relation to FOIA has recently been further clarified.  The issue stemmed from a Financial Times investigation at the end of last year into allegations that the education secretary, Michael Gove, and his advisers were using private email accounts (e.g. hotmail, yahoo or gmail accounts) to circumvent FOI requests, prompted the ICO to conduct a Good Practice Visit at the Department of Education and subsequently to issue new Guidance on “Official information held in private email accounts”.

The Good Practice Visit found that, while a number of policies, procedures and guidance notes were in place, this was not necessarily fully understood and followed by staff. As a result, the Guidance sets out, unequivocally, that staff may be required to disclose contents of personal accounts.

Since then the ICO has issued its Decision Notice in relation to the request for details of emails sent by the Secretary of State for Education, Michael Gove, to a named individual.  The Department for Education (DfE) had said that it did not hold any information within the scope of the request however the complainant had access to a copy of an email which it provided to the Commissioner and asked for a review of the handling of the request.   The Commissioner reviewed the email and in its decision notice holds that “whilst it was sent from a private email account it was held on behalf of the DfE for the purposes of the Act”. The DfE had tried to argue that as the content was a political discussion with a Special Advisor, it was not held within the terms of FOIA.  However the Commissioner has stated that “the correct approach is to consider the purpose of the email and whether the majority of the contents of the email amount to the business of the department”.  Having reviewed the position here the Commissioner is of the view that it is clearly about departmental business.

Although the Guidance and the Decision Notice makes the ICO’s position on the use of such private email accounts very clear, it relies on those within a public body dealing with FOI request being aware of when such accounts are being used. This will not always be the case.



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