Scots FOI Chief to face grilling over lack of powers to deal with inaccurate data from public bodies. SCOTTISH Information Commissioner Rosemary Agnew has been called to appear before Holyrood’s Public Petitions Committee on Tuesday 6th May 2014 to face questions from MSPs on revelations there are no powers in the Freedom of Information (Scotland) Act 2002 to deal with inaccurate or false data provided by Scots public authorities in response to Freedom of Information requests.
The astonishing lapse of any effective legislation to deal with false, misleading or inaccurate responses to Freedom of Information requests has come to light during msps consideration last week of Petition PE1512 Amendments to the Freedom of Information Scotland Act 2002 filed by retired Scotsman journalist William Chisholm.
The petition calls on the Scottish Parliament to urge the Scottish Government to strengthen the Freedom of Information (Scotland) Act 202 by requiring public bodies to provide full and accurate information in all responses to FOI requesters, and to extend the powers of the Scottish Information Commissioner (SIC) to enable the Commissioner to investigate complaints alleging erroneous responses. The SIC should also be able to impose monetary penalties on any public body which breaches the amended FOISA regulations on accuracy.
Petition PE01512 Amendments to the Freedom of Information Scotland Act 2002 Scottish Parliament
Speaking to MSPs, Mr Chisholm said : “Until my recent experience with a freedom of information request to my local authority, I was unaware that organisations that are covered by the 2002 act are not duty-bound to give accurate and honest answers or to supply up to-date information. Surely without such a built-in caveat the FOI system’s credibility is diminished. On the other hand, if accuracy and honesty were guaranteed, the FOI system would become an even more powerful weapon in the quest for knowledge”
After challenging responses by his local authority on varying figures provided for legal costs associated with an appeal against an ICO fine, Mr Chisholm told msps he had contacted his local msp who then approached Nicola Sturgeon, the Cabinet Secretary for Infrastructure, investment & Cities on the matter.
Mr Chisholm told members of the Petitions Committee: “Nicola Sturgeon, in her capacity as the Cabinet Secretary for Infrastructure, Investment and Cities, confirmed in correspondence with me and my constituency MSP that information supplied in FOI requests is not necessarily accurate or up to date. Furthermore, if a requester is dissatisfied because he or she believes that the information is misleading, inaccurate, contains errors or is otherwise deficient, that is not something that the commissioner can address in terms of FOISA”
Mr Chisholm said the experience left him with the feeling that the FOI system could be undermined if public authorities failed to supply truthful responses to requesters, so he decided to pursue the issue with the Scottish Information Commissioner and beyond. He also revealed to msps that one study suggests that up to one in four FOI responses could be inaccurate.
During the debate, John Wilson MSP (SNP) took note of the fact the Scottish Information Commissioner had suggested MSPs close the petition on its first hearing – this came after Rosemary Agnew filed a highly irregular pre-emptive letter PE1512/A: Scottish Information Commissioner Letter of 15 April 2014 (80KB pdf) against the petition before msps had even heard the petitioner or called for evidence.
Mr Wilson went on to say: “ I am intrigued by the figures, which I note are from the Bureau of Investigative Journalism. In your submission, you say that they suggest that almost one in four responses to FOI requests contains inaccurate information. Following on from Mr Brodie’s point, if, as the Information Commissioner suggested, we do not change the legislation, how do we ensure that local authorities provide accurate information to those who make an FOI request?”
Responding to Mr Wilson’s enquiries, Mr Chisholm said: “There is no mention of accuracy in the 2002 act. I think that the SPICe briefing confirms that. Would it not be advantageous for FOISA to include a written guarantee of accuracy?”
John Wilson added: “I agree with you on that. One of the major issues that I have identified is the way in which local authorities record the decision-making process. As we discussed during our consideration of the petitions regarding decisions made at board meetings of the police and fire and rescue services, unless accurate or detailed minutes are taken of decisions and who participated in them, it becomes impossible for individuals making an FOI request to be provided with the accurate information that they require. Local authorities do not record the decision making process in an accurate manner.”
Since last week’s hearing in which it was suggested msps ask the Scottish Information Commissioner to attend an evidence session, and give statistics on how many prosecutions there have been for false information provided in response to Freedom of Information requests, the Scottish Information Commissioner has been forced to admit in a further written response PE1512/C: Scottish Information Commissioner Letter of 25 April 2014 (27KB pdf) there have been no prosecutions since the FOI act came into force in Scotland.
A letter from Ms Agnew to msps stated: “Since FOI law came into effect in January 2005, the Commissioner and Police Scotland have identified 10 cases where there was evidence that suggested a section 65 offence may have been committed.”
Section 65 of FOISA applies when: (i) information has been requested from a Scottish public authority i.e., a request has been made for that information and it is held by the authority, and (ii) the requester is entitled to be given the information (or any part of it).
Section 65 applies to the public authority and any person who is employed by, is an officer of or is under the direction of the authority (e.g. a contractor).
Section 65 makes it a criminal offence to intentionally alter, deface, block, erase, destroy or conceal a record (i.e. information) which is the subject of a request in order to prevent the information being disclosed following the receipt of the request.
Anyone found guilty of an offence would be subject to summary conviction and may be fined personally up to £5,000. Both of which are serious sanctions.
Rosemary Agnew told MSPs in her latest letter: “Since FOI law came into effect in January 2005, the Commissioner and Police Scotland have identified 10 cases where there was evidence that suggested a section 65 offence may have been committed.”
However, Ms Agnew was forced to admit: “In none of the cases was it possible to raise criminal proceedings because of the restrictive timescales set out in FOISA”
In response to the fact no prosecutions have resulted, Mr Chisholm has now told the Public Petitions Committee in a further submission PE1512/D: Petitioner Letter of 28 April 2014 (73KB pdf) : “The information now available from the Commissioner concerning the operation of section 65 of the Freedom of Information (Scotland) Act (FOISA) proves conclusively that current arrangements for the investigation and punishment of wrongdoing by public authorities is neither robust nor fit for purpose.”
“It is both astonishing and deeply concerning to learn there has not been a single successful prosecution since the Act became law in 2005 even though research suggests inaccurate and therefore misleading responses are being supplied to FOI requesters in up to one in four cases. Only ten complaints were even considered for potential legal proceedings and all of those were abandoned after becoming entangled in time limits.”
“The fact that complaints made under Section 65 of FOISA have NEVER resulted in a single criminal case being taken to court – let alone a conviction - certainly suggests the legislation is weighted heavily in favour of public bodies rather than the general public.”
Petition PE1512 will be heard again on Tuesday 6 May 2014 at the Scottish Parliament.