A recent ruling of the Scottish Information Commissioner raised the complicated constitutional ground of the application of the Scottish FOI legislation to information supplied to the Scottish Executive by the Home Office.
In a judgement concerning information about Dungavel Immigration Removal Centre (Dungavel), the Commissioner's decision provides guidance on when information may be said to be 'held' by a Scottish public authority, as well as showing the intricate interplay of UK-Scottish politics.
This judgement concerned a request by Mr Mark Hirst, acting on behalf of his employer Ms Christine Grahame MSP, for all communications from the period August 2003 – June 2004 between the Scottish Executive and the Home Office regarding the detention of children at Dungavel.
Immigration is a reserved matter and immigration removal centres are therefore operated by the Home Office in their various locations throughout the UK. At Dungavel in South Lanarkshire children are also held; raising additional questions since the education and welfare of children in Scotland is a devolved matter. While the Scottish Ministers have indicated in response to various Parliamentary Questions that where children are detained in Dungavel legal responsibility for them rests with the Home Office, certain information is still passed between the two administrations regarding the situation of these children.
The Scottish Executive identified 27 items that fell within the scope of the request. It stated in its refusal notice that it believed that the exemption in section 28 Freedom of Information (Scotland) Act (FOISA) applied. This section exempts information from release where release would, or would be likely to, prejudice substantially relations between any administration of the United Kingdom and any other such administration.
The Executive later stated in response to the appeal that, in retrospect, certain other exemptions may also have been applied to the information. Some months later, in the final explanation of its position, the Executive considered that in addition to section 28, a number of other exemptions applied to certain information, including section 30(b)(ii) (the free and frank exchange of views for the purposes of deliberation).
In addition, the Executive claimed that certain of items were deemed not to be "held" by the Executive for the purpose of FOISA. The Executive relied on section 3(2)(a)(ii) of FOISA, which provides that information held in confidence by one UK administration, having been supplied by another, is not 'held' by that first administration for the purposes of FOISA.
The Commissioner examined the 27 initial items and narrowed the scope of the decisions so as only to incorporate those items relating to the exact request. It was found that 6 of the 27 initial items were outwith the scope of the request.
Information held in confidence having been supplied by the UK Government
The Commissioner accepted some of the information was not 'held' for the purposes of FOISA because of the operation of section 3(2)(a)(i). The Commissioner stated that where information was not 'held' by reason of the operation of this section, the authority refusing the request should advise the requester of their right to request the information from the originating authority and provide reasonable assistance on how to do so.
Of the exemptions relied on by the Executive, the consideration of section 28(1) was of particular interest. This section exempts information if its disclosure under this Act would, or would be likely to, prejudice substantially relations between any administration in the United Kingdom and any other such administration (the Scottish Executive and the UK Government in this case). This exemption therefore only related to certain information passing between the Executive and the Home Office. In relation to this information, the Commissioner drew a distinction between information that directly revealed the substance of the dialogue, and that information which related to the process of the dialogue. The existence of a dialogue between the Executive and the Home Office on the topic of Dungavel is a matter of public record, so the disclosure of documents relating to the process alone would restrict interactions between the administrations and so would not be exempt under section 28.
As section 28 is a qualified exemption, the public interest test was considered. The Commissioner considered that while there was strong public interest in gaining an insight into which authorities were involved in discussing the detention of children at Dungavel and what, if any, responsibilities they exercised, where section 28(1) properly applied the public interest in maintaining the relevant exemption outweighed the public interest in disclosure of the information. However, as a result of the Commissioner's conclusions in respect of information that concerned the process only, certain information was ordered to be released.
This case once again highlights the increased level of transparency and accountability that the freedom of information regime has introduced Mr Hirst's request for communications between the Executive and the Home Office has a wider impact than may appear at first glance. Rather than merely relating to the responsibility for the detained children, the ruling here highlights the extent to which interactions between the UK and Scottish administrations can benefit from the exemptions available under FOISA.