After months of speculation, Kevin Dunion, the Scottish Information Commissioner reached his first decision under the Freedom of Information (Scotland) Act 2002. The decision, which was made public on 23 May 2005, concerned a request to Lothian & Borders Safety Camera Partnership (a body owned entirely by the public sector) for the calibration certificate of equipment used in an alleged speeding offence. Despite the information eventually being voluntarily released by the Partnership, Kevin Dunion still saw fit to wrap them on the knuckles for failing to process the request in full accordance with legislation.

The Commissioner identified the following failings:

 

  • The Partnership did not cite any exemptions to justify its initial decision to withhold the requested information. Refusals to disclose information must be accompanied by an exemption contained in the Act.
  • The Partnership did not tell the requester of his right to require an internal review of the decision. This was contrary to the Scottish Ministers' Code of Practice on the Discharge of Functions by Public Authorities (the Section 60 Code) which requires public bodies to tell the requester that they have this right of review.
  • The review response was inadequate:
    • It was issued in the same name as the person who sent out the initial refusal. The Section 60 Code recommends that staff involved in the original decision should not handle the review.
    • It did not cite any exemptions as is required by the Act.
    • It did not advise of the right to appeal to the Scottish Information Commissioner, nor did it detail the timeframe within which this should be done. This information should have been provided to the requester.

Kevin Dunion has recommended that the Partnership implement necessary staff training, and improvements to procedures in order to remedy these failings within 3 months.

The decision is useful in providing guidance as to the Commissioner's approach of Kevin Dunion to the Act. The decision does not however provide clarity on the issue of whether or not information which is solely provided on a website will be deemed to be reasonably accessible to people in Scotland. We will have to wait for further decisions to provide clarity on this and other FOI issues.

 

 

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