Thursday, October 09, 2014

FOI FREEDOM TO LIE: Scots Info Commissioner admits Data Protection breaches as journalist's call to reform Freedom of Information Act ditched by Holyrood

Axe Honesty First: SIC Rosemary Agnew broke Data Protection Act THE high-powered watchdog responsible for promoting and enforcing Scotland’s freedom of information laws has issued an unreserved apology to a retired Borders journalist after admitting three breaches of the Data Protection Act (DPA).

But the Scottish Information Commissioner (SIC) will not be hit with any form of punishment after an investigation by the England-based Information Commissioner (IC) concluded there was no need for further action.

A second complaint against the SIC by former Scotsman reporter Bill Chisholm, from Jedburgh, that the Commissioner - Rosemary Agnew released around 200 pages of personal correspondence to a Freedom of Information (FOI) requester without asking his permission and without even consulting him was not upheld.

Earlier this year Mr Chisholm submitted Petition PE1512 Amendments to the Freedom of Information Scotland Act 2002 to the Scottish Parliament seeking an addition to the Freedom of Information Scotland Act (FOISA) which would force councils and other public authorities to provide “honest and accurate” responses to requests for information.

Holyrood evidence session with Bill Chisholm on reform to Freedom of Information

But the petition met stiff opposition from Ms Agnew’s office and from the Scottish Government. They both claimed there was no need for amended legislation, and in any case Mr Chisholm’s proposals would be “unworkable”.

Last week MSPs on the Public Petitions Committee agreed unanimously to close down Mr Chisholm’s petition which means it will receive no further consideration.

While his petition was still “live” Mr Chisholm decided not to disclose details of the SIC’s triple breach of the Data Protection Act which occurred earlier this year.

Ms Agnew, who gave evidence to the Petitions Committee in May, received a FOI request asking for copies of all documents and email exchanges relating to Mr Chisholm’s petition. The extensive collection of correspondence was released by the SIC, and the contents were subsequently published on an internet website.

But in providing the information to the requester Ms Agnew’s office failed to redact Mr Chisholm’s email address from three separate documents, thereby committing clear breaches of the Data Protection regulations.

Before lodging a complaint with the SIC Mr Chisholm rang the Information Commissioner’s Helpline to ask for their opinion and advice. He said: “At this stage I did not identify the SIC as the offender. I was told several times by the person who took my call that the public authority concerned had no right to release any information without contacting me first. I was advised to seek an explanation before asking for an investigation.”

The SIC subsequently carried out its own internal enquiry which confirmed the three breaches of the Data Protection Act but dismissed the rest of the complaint.

Margaret Keyse, Head of Enforcement at the SIC told Mr Chisholm in a written decision: “I examined the information we disclosed and what we told the requester. It was clear from the response that we intended to withhold your email address, because it was your personal data and because we considered that disclosure would breach the DPA. We redacted it in most places where it appeared but, through a clerical error, we failed to redact it in three places.

“I am very sorry that this has happened and apologise unreservedly for any distress this has caused you. Although the accidental disclosure was the result of a clerical error rather than procedural failure, the Scottish Information Commissioner will also reflect on this and incorporate any lessons learned in the review of our internal procedures for responding to information requests.”

Mr Chisholm was not satisfied with the outcome of the SIC investigation, and referred the case to the ICO for their consideration.

In their decision notice, sent to Mr Chisholm at the weekend, the ICO’s Lead Case Officer Rachel Webster said: “Given that your email address should have been withheld it appears unlikely that the SIC has complied with the Data Protection Act 1998. In particular it appears that the SIC has contravened the First Principle by disclosing your email address.

“The SIC has explained in their response the changes they have made to their procedures to try and prevent any future reoccurrence of this problem. I am satisfied at the changes they have made and do not anticipate taking any further action at this time.”

But Ms Webster went on to say that the SIC had not broken FOI rules by passing the 200 pages of correspondence to the requester.

She wrote: “It appears from the information provided that the personal data released by the SIC was limited. As such it is likely in this case given that some of your personal data was already in the public domain as a result of your petition and that the SIC believed it was in the legitimate interests of the requester to be provided with the information that contained your personal data, in our view, it was reasonable for this to be released.

Commenting on the outcome Mr Chisholm said: “The advice I was given by the ICO in June appears to have been flawed or plain wrong. I maintain that the SIC had no right to issue correspondence I had with them without even having the courtesy to inform me beforehand.

“The decision by the ICO to take no further action simply emphasises the point I was trying to make via my petition. Public authorities can flout FOISA or breach the DPA without fear of punishment. The entire system lacks credibility, but there are too many vested interests to allow any strengthening of the law.”

Tuesday, July 22, 2014

Lady Smith appointed as head of Scottish Tribunals as Scottish Government clear up of devolved tribunals gets underway

Judge Lady Smith now head of Scottish Tribunals. COURT OF SESSION judge Lady Smith has been appointed as the first President of the Scottish Tribunals by Scotland’s current top judge – the Lord President & Lord Justice General Lord Brian Gill. The appointment was made under the Tribunals (Scotland) Act 2014, where the Lord President, Lord Gill, has overall leadership of the Scottish Tribunals. Lord Gill has now formally assigned Lady Smith to the Office of President, to whom he may delegate various functions.

The main policy objective of the Tribunals (Scotland) Act 2014 is to create a new, two-tier structure for devolved tribunals in Scotland – to be known as the Scottish Tribunals – which will comprise a First-tier Tribunal for first instance decisions and an Upper Tribunal (primarily for dealing with appeals) with a common system of leadership, appointments, practice and procedures for reviews and appeals, under the overall leadership of the Lord President of the Court of Session.

Lady Smith - Anne Mather Smith was appointed a Judge of the Supreme Courts in 2001 and was appointed to the Inner House in November 2012.

She is a graduate of the University of Edinburgh (LL.B. Hons). She was admitted to the Faculty of Advocates in 1980 and was Standing Junior Counsel to the Countryside Commission. Lady Smith was appointed Queen's Counsel in 1993. She served as a Temporary Sheriff from 1995 to 1999. Lady Smith was appointed Chairman of the Scottish Partnership on Domestic Abuse from 1998 to 2000 and served as Advocate Depute from 2000 until she was appointed a Judge.  

She has served as a member of the Court of Session Rules Council and is a past Chairman of the Advocates Family Law Group and Chairman of the Advocates Professional Negligence Law Group.

Lady Smith has extensive experience of sitting in tribunals and working with tribunal judges and members.  She was a judge of the Employment Appeal Tribunal for eight years and she chairs the Scottish Tribunals Forum and the Reserved Tribunals Group. She also represents the interests of the Lord President in relation to tribunals where the relevant law has not been devolved to the Scottish Parliament, on the Tribunals Judicial Executive Board, chaired by the Senior President of Tribunals (currently Lord Justice Sullivan).

Lady Smith’s partner, retired solicitor David Smith formerly with Shepherd & Wedderburn, and more recently a controversial pro-lawyer board member of the Scottish Legal Complaints Commission hit the headlines when the now retired Scottish Information Commissioner Kevin Dunion – who now sits on the SLCC as a board member,  ruled the Commission had unjustifiably covered up documents relating to David Smith’s conduct during his time on the board.

Dunion forced the SLCC to disclose details, revealing Lady Smith’s husband had embarked on a tirade of insults against victims of dishonest lawyers during internal communications between SLCC board members, and branded members of the public “Frequent Flyers” during discussions on how to deal with complaints against the legal profession.

Lady Smith is also known for throwing out the Scottish National Party’s bid to use the Court of Session to block the broadcast of the Prime Ministerial debate on the lead up to the 2010 General Election, reported HERE.

The first Commencement Order for the Tribunals (Scotland) Act 2014, published on Monday 14 July 2014, brings into force section 4(1),(2),(3), and (5) of the Act enabling the Lord President to make this appointment. With the coming into force of the Order and by virtue of the power conferred on the Lord President by section 4(2) of the Act, Lord Gill has formally assigned Lady Smith to the Office of President of the Scottish Tribunals, to whom he may delegate various functions.


In Scotland there are currently three different types of tribunals:

  • Tribunals that deal with devolved issues and have specific Scottish jurisdiction and structures (such as the Mental Health Tribunal for Scotland);
  • Tribunals that deal with reserved issues, but have specific Scottish jurisdiction and structures (such as the tribunal that deals with War Pensions); and
  • Tribunals that deal with reserved issues and have GB‐wide jurisdiction and structures (such as the Social Entitlement Chamber of the First‐tier tribunal which deals with appeals relating to Social Security and Child Support).

The Scottish Tribunals Service

The STS provides administrative support to six tribunals:

Reserved Tribunals

The following reserved tribunals are administered by HM Courts and Tribunal Service (HMCTS):

Thursday, July 10, 2014

EXPOSED: The Court of Session Clerk who downloaded child porn & whispered in the ears of Scotland’s top judges

Court of Session was workplace of clerk who admitted downloading child porn. A HIGH COURT clerk & close confidante of Scotland’s top judges in the Court of Session has admitted downloading child porn images while he was employed by the Scottish Court Service. Donald Bruton, who resigned from the Scottish Court Service after child pornography was discovered on his computer pleaded guilty to downloading the indecent images between July 24, 2011, and October 3 last year.

This latest case involving a figure close to Scotland’s judges on charges of child porn is one of many instances were staff working at the Scottish Court Service (SCS) and even prosecutors at the Crown Office & Procurator Fiscal Service (COPFS) have been linked to the downloading of, and in some cases distributing child porn images. However, not all cases have resulted in prosecutions …

The Daily Mail reports:


By Victoria Allen Daily Mail

A HIGH Court clerk yesterday admitted downloading indecent images of children.

Donald Bruton was forced to resign from his post at the Court of Session and the High Court after child pornography was discovered on his laptop.

He was found with indecent pictures of young girls aged ten to 15, three images being of the most serious 'level five' type.

Bruton, 60, was arrested after the laptop was discovered at his home in Joppa, Edinburgh, and appeared last October at the city's sheriff court, where he had to face his colleagues. He resigned from his job soon afterwards.

Yesterday, at the same court, he pleaded guilty to downloading the indecent images between July 24, 2011, and October 3 last year.

Fiscal Depute Aidan Higgins told the court police had received intelligence about Bruton's actions.

They went to the home he shared with his wife and two adult sons on October 3 last year. On being told the reason for their visit, the clerk directed them towards the laptop.

Mr Higgins said: 'He told the police he had been downloading these images of children for some time out of curiosity and had taken to searching for indecent images.'

Bruton worked with some of Scotland's most senior judges, particularly on commercial cases.

He was responsible for the daily running of proceedings at the Court of Session, which holds complex and high-value cases including divorce and libel actions.

The clerk formerly worked on criminal cases at the High Court in Edinburgh and Edinburgh Sheriff Court. He was also a member of the Edinburgh Budgerigar Association, where he served as treasurer, secretary and publicity officer.

Bruton had 16 pictures - four at level one in the scale of child pornography, one at level two, four at level three and four at level four. There were three at level five - the worst rating, which includes sadism and bestiality.

Defence solicitor Mark Harrower told Sheriff Alistair Noble his client has no previous convictions.

Sheriff Noble deferred sentence until August 5 for a social work report and continued Bruton's bail. He has also been placed on the Sex Offenders Register.

The Scottish Courts Service refused to comment after he was arrested as the case was active.

Scottish Conservative chief whip John Lamont said: 'It is wrong and inexcusable for anyone to access images such as this. But when it is someone working in such a senior position within the law, it seems to become more shocking.'

Alison Todd, chief executive of Scots charity Children 1st, which has campaigned for tougher sentences for paedophiles, said: 'Child pornography is not a victimless crime. Every image is evidence of achild suffering abuse from which they may never fully recover.'

Wednesday, July 09, 2014

Scottish Government spend £800K of public cash on the appointment of 6 new Sheriffs as Courts look for business

Six new sheriffs added to Scotland’s burgeoning judicial elite. the AS local courts across Scotland close, allegedly to ‘save money’ and tens of millions of pounds are spent on maintaining the Parliament Square powerbase of Scotland’s ageing judges, the Scottish Government have this week swollen the ranks of Scotland’s judiciary even further with the appointment of six solicitors as Sheriffs on an annual salary of £130,875 plus the usual range of perks and multi million pound judicial pensions.

Those appointed in the latest round of additions to the judiciary are Mrs Aisha Yaqoob Anwar, Solicitor as a sheriff of Glasgow and Strathkelvin; Ms Lorna Allison Drummond, QC, as a sheriff of Tayside, Central and Fife; Ms Alison Nancy Stirling, Advocate and Mr Gordon Fleetwood, Solicitor as sheriffs of Grampian, Highland and Islands; Ian Macdonald Fleming, Solicitor Advocate as a sheriff of North Strathclyde; and Mr Brian Anthony Mohan, Solicitor as sheriff of South Strathclyde, Dumfries and Galloway. First Minister Alex Salmond nominated those recommended for appointment on the basis of a report by the independent Judicial Appointments Board for Scotland.

Aisha Anwar graduated with an LLB Hons from the University Edinburgh in 1996 and a Bachelor of Civil Law (Oxford 1998). She joined Maclay Murray and Spens in 1998 as a trainee, was admitted as a solicitor in 2000 and became an associate in 2003. From 2009 to 2012 she became a partner and then head of litigation at DLA Piper. She was appointed as a part-time sheriff in 2011. She has authored numerous publications, lectured and tutored. She recently co-authored the Civil Bench Book for Sheriffs on behalf of the Judicial Institute.

Brian Mohan graduated with an LLB Hons from the University of Glasgow in 1981. He was admitted as a solicitor in 1988. In 1992 he became a partner in Cartys Solicitors, concentrating on employment tribunal and sheriff court work in Hamilton and Airdrie. In 2009 he completed an LLM in Human Rights. Mr Mohan served as a Children’s Panel safeguarder in North Lanarkshire. He was a tutor in Glasgow University’s courses in Public Law (1989-2003) and Diploma in Legal Practice (2010-2014).

Alison Stirling graduated with an LLB from the University of Edinburgh in 1992. She was admitted as a Solicitor in 1994. In 1995 she became Legal Assistant to the Lord President and was admitted to the Faculty of Advocates in 1997. She has been Deputy Editor of Session Cases since 2001. She was appointed a part-time sheriff in 2011 and in 2014 was appointed a Legal Assessor to the Nursing and Midwifery Council.

Ian Fleming graduated with a LLB Hons from the University of Strathclyde in 1983. He was admitted as a solicitor in 1985. He was a trainee solicitor, assistant and partner with Paton and Co before becoming a partner with Fleming and Reid in 1990. He became a solicitor advocate in 2001. He was appointed as a part-time sheriff in 2005, a Convenor of Mental Health Tribunals in 2010 and a member of the Judicial Panel of the Scottish Football Association in 2011.

Lorna Drummond graduated with an LLB Hons from the University of Glasgow in 1985 followed by a Masters in Philosophy from the University of Cambridge. She was admitted as a solicitor in 1993 and employed as Assistant Scottish Parliamentary Counsel and Assistant Legal Secretary to the Scottish Law Officers before being called to the Bar in 1998. She was appointed Standing Junior to the Advocate General and to the Scottish Ministers. She was appointed a part time sheriff in 2009 and took silk in 2011.

Gordon Fleetwood graduated with an LLB Hons from the University of Edinburgh in 1973. He was admitted as a Solicitor in 1975 and became a Solicitor Advocate in 1994. Solicitor, More and Co, 1977-1982; then in Inverness with Sutherland and Co, 1982-1986 and Fleetwood and Robb, 1986-2004. He was principal in own practice, 2004-2008. He has been a part-time sheriff since 2003 and a legal member of the Parole Board since 2010.

The Judicial Appointments Board for Scotland was established by Ministers in 2002 and it became an independent advisory non-departmental public body on 1st June 2009. The board has statutory responsibilities under the Judiciary and Courts (Scotland) Act 2008. The board’s role is to recommend for appointment to the office of judge, sheriff principal, sheriff and part-time sheriff. The First Minister retains the statutory responsibility for making nominations to Her Majesty the Queen. The First Minister is required by statute to consult the Lord President of the Court of Session before making his nomination to Her Majesty.

Monday, June 23, 2014

The Lord President’s £60Million stained glass window - Parliament House & Court of Session display their “Hidden Gem” in Edinburgh fringe exhibition

Axe Nurses First: No austerity for £60m spend on Scotland’s main court & judiciary IN the midst of huge cuts to public services including hospitals, the Judiciary of Scotland & Scottish Court Service have announced a celebratory exhibition on their spending of £60 million pounds of taxpayers money on their Parliament House building based in Edinburgh, which houses Scotland’s highest & most inaccessible court – the Court of Session.

The exhibition runs from 28 July to 29 August as venue 402 for the Edinburgh Fringe. Be there, or be aware!

Among the reasons for the multi million pound taxpayer spend on a court no one in Scotland can actually get to without paying tens of thousands of pounds to Edinburgh based QCs, Eric McQueen - the Chief Executive of the Scottish Court Service told staggered msps on the Scottish Parliament’s Justice Committee that “there was no fire certificate in place for the building”.

McQueen also revealed the judges had actually wanted to spend well over £120 Million on the project but this budget was “was brought to a stop to allow us to reassess things and to consider the best strategy”.

McQueen notably did not elaborate to msps on why the £120million plus budget was brought to a halt, probably because no explanation had been dreamed up beforehand which was plausible enough to cover it.

Court Boss & top judge tell MSPs they wanted to spend £120million on top court

Anyone going along to the exhibition please feel free to ask some searching questions on why Scotland’s judiciary are so secretive about their interests and why Scotland’s top court is so inaccessible to the public (– Ed)

Celebrating Parliament House redevelopment

An exhibition was opened today commemorating the completion of the five year, £58 million redevelopment of Parliament House, home of the Supreme Courts of Scotland.

The Lord President, the Rt. Hon. Lord Gill, Chairman of the Scottish Court Service, unveiled a plaque marking the project which was completed last year on time and on budget.

Lord Gill said: “Behind the façade of Parliament House is a collection of buildings ranging over seven floors and containing more than 700 rooms. The oldest building, Parliament Hall, is nearly 400 years old, and it is vitally important that this building is properly maintained for future generations.

“I wish to thank the many individuals and teams who were involved in the project. This work was carried out while the business of the courts continued, and its success has been achieved by effective planning and co-operation.”

Speeches were also delivered by the Cabinet Secretary for Justice, Kenny MacAskill, MSP, Lord Advocate Frank Mulholland, QC, and the Dean of the Faculty of Advocates, James Wolffe, QC.

SCS Chief Executive Eric McQueen said: “The SCS is responsible for preserving this 17th century building which is in a world heritage site and the work involved was a significant challenge. The success of the project has resulted in the improvement of facilities and access for all court users, including victims and witnesses.

“The traditional courtrooms have been fully preserved while at the same time adapted to enable the presentation of evidence, productions and documents, electronically and remotely, from any part of the world. This is part of our ambition to put digital innovation at the heart of our Service.”

The project involved the renewal of all mechanical, electrical and information technology installations, fire safety measures, the introduction of energy efficiency schemes and the improvement of environmental controls in Parliament House, home to the Court of Session and the High Court of Judiciary.

The exhibition - 'Parliament House, The Hidden Gem' - will feature from 28 July to 29 August as venue 402 for the Edinburgh Fringe. It provides a glimpse into the history, traditions and purpose of the Supreme Courts building and will be open Monday to Friday, 10:30-1600. The exhibition was sponsored by Currie and Brown, Asset Management and Construction Consultancy (project managers) and Interserve Construction (principal contractors).

Wednesday, June 04, 2014

All rise for 18th Century as Scottish Court Service announce cull of local courts in new delivery of justice services for Scotland

Delivery of justice in Scotland set back 300 years say critics. THE Scottish Court Service (SCS) has announced it is creating a new court structure “for the future” in the restructuring of court services in Scotland which will result in the closure of most local courts across the country under the guise of reform. The sweeping proposals to cull many of Scotland’s local courts were  set out in Shaping Scotland's Court Services, published following a ‘public consultation’ organised by the court service & Scottish Government.

However, critics of the plans which include both legal professionals and court users say the move is little more than a move by the Scottish Government to centralise justice in a handful of justice hubs where cases and their outcomes can be more easily controlled or influenced by vested interests.

Commenting on the planned changes a solicitor said: “We are turning the clock back three hundred years on the delivery of justice in Scotland.”

Court users & consumer groups have also pointed out it will be even more difficult than present for members of the public to obtain access to justice once local courts have closed.

Delivering court services for the 21st century

The Scottish Court Service (SCS) is creating a new court structure for the future and Phase II gets underway on May 31, 2014.

From that date, court business previously held in Stonehaven, Cupar and Arbroath Sheriff and Justice of the Peace Courts will transfer to Aberdeen, Dundee and Forfar Sheriff and Justice of the Peace Courts respectively.

The court restructure is part of some of the most visionary changes to Scotland's justice system in well over a century and supports legislative reform, improves services and facilities for court users, including victims and witnesses, and is affordable in the long term.

The volume of business transacted in the courts which will close over a two year period, is around 5% of the overall court business across Scotland. Court capacity in all receiving courts will be supported by the transfer of staff and members of the judiciary from closing courts to deal with the business.

SCS Chief Executive Eric McQueen said: "Our vision is to have court structures in place that are cost effective, proportionate, accessible and efficient. Cases and appeals will be heard by the right court in both civil and criminal cases, with the highest courts reserved for the most serious and complex cases. Court procedures will be as easy as possible to understand and access and cases dealt with as efficiently as possible once they come to court.

"To achieve this we are targeting our investment to create a modern court structure throughout Scotland. Our Corporate Plan for 2014-17 sets out our programme for the next three years to transform our services and put digital innovation at their heart.

"Investing in fewer courts enables us to make these improvements to facilities and technology, which will provide better services for all court users, and in particular victims and witnesses. Where sheriff courts are closing we have installed facilities to allow victims and witnesses to use video technology to give evidence or make contact with the court, where this is allowed by the current legislation. Future legislative changes will extend the circumstances where video links are possible in criminal and civil procedures."

Arbroath Sheriff and Justice of the Peace Court business will transfer to Forfar Sheriff and Justice of the Peace Court where the SCS has been able to target savings to invest in improved court facilities. Improvements are being made for vulnerable witnesses; new accommodation is provided for the Witness Service and better custody facilities as required by HMIP (Her Majesty's Inspectorate of Prisons for Scotland).

Similarly in Dundee Sheriff and Justice of the Peace Court, which will take the business from Cupar Sheriff and Justice of the Peace Court, the SCS has improved accommodation for witnesses and jurors, providing new non-custodial interview rooms and created catering facilities to serve all court users. With the High Court no longer sitting in Dundee the court will have ample capacity to deal with future business levels and will be fully fit for purpose.

In Aberdeen, where court business will be taken from Stonehaven, construction is already underway of a modern and fully equipped civil centre and commercial court with state of the art technology. The separation of criminal and civil proceedings at this location will provide a greatly improved court environment allowing, for example, children's hearings to take place in a more appropriate courtroom setting.

There will be no compulsory redundancies in delivering this programme.

Restructuring relating to the closure of courts required approval by the Scottish Parliament.

In November 2013 the following courts closed in Phase I of the programme:
Annan JP Court, Cumbernauld JP Court, Irvine JP Court, Motherwell JP Court, Dornoch Sheriff & JP Court, Kirkcudbright Sheriff & JP Court, Rothesay Sheriff Court.

May 2014 phase II:

Arbroath Sheriff & JP Court, Cupar Sheriff & JP Court, Stonehaven Sheriff & JP Court.

January 2015 phase III:

Dingwall Sheriff & JP Court, Duns Sheriff & JP Court, Haddington Sheriff & JP Court, Peebles Sheriff & JP Court.

Other changes will see High Court trials concentrated mainly in the Edinburgh, Glasgow and Aberdeen centres and over a ten year period, sheriff and jury trials will become focussed in 16 mainland courts. The four island courts will continue to hear all business within the jurisdiction of the sheriff. These courts will also deal with specialist civil business, with the remaining courts dealing principally with the jurisdiction of the new summary sheriffs proposed by the Courts Reform (Scotland) Bill.

More information on Shaping Scotland's Court Services:

Scottish Court Service – Corporate Plan 2014-17

Scottish Government - Making Justice Work

Sunday, May 18, 2014

Scottish Information Commissioner rejects call for honesty in Holyrood petition proposal to amend law on inaccurate & false FOI responses from public bodies

Scots FOI Chief rejects calls for honesty over lack of powers to deal with inaccurate data from public bodies. APPEARING to reject calls for new ‘honesty powers’ to deal with Scots public authorities who provide dishonest or inaccurate data in response to Freedom of Information requests, Scottish Information Commissioner Rosemary Agnew has claimed Scotland’s FOI system is "open, transparent and honest" – even though evidence & case examples suggest public authorities are releasing dodgy data in an attempt to avoid public scrutiny of their activities.

The Scottish Information Commissioner made the claims to MSPs during her appearance on 6 May at the Scottish Parliament’s Public Petitions Committee where msps considered proposals to give the Commissioner new powers to deal with dishonest public bodies, contained in Petition PE1512 Amendments to the Freedom of Information Scotland Act 2002 filed by retired Scotsman journalist Mr 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 petition also seeks powers to impose monetary penalties on any public body which breaches the amended FOISA regulations on accuracy.

Scottish Information Commissioner Evidence to MSPs on Petition PE1512 6th May 2014

Giving evidence to MSPs, Ms Agnew appeared to suggest a variety of reasons could lead to the information being requested not being released, such as public bodies not searching for the information in the correct place, inaccuracies in public records, or the information not being held by the public body.

Throughout the debate Ms Agnew appeared unable to justify her opposition to the petition’s proposals to bring requirements of honesty into the FOI framework, giving at times rambling answers to questions put by msps. The full meeting minutes are available here: Official Report of meeting 6 May 2014 (434KB pdf)

The Commissioner went on to tell the Committee tthe most effective way to deal with FOIs was "getting it right first time"  - although many FOI requesters including some msps who use Freedom of Information to find out what Scottish public authorities are really up to, may find Ms Agnew’s claim on this point hard to swallow.

Commenting on Ms Agnew’s appearance before MSPs, the Petitioner, Mr Chisholm said: “In her evidence to the Committee on May 6th, the Scottish Information Commissioner (SIC) said she saw no need to amend the current legislation. This, despite the fact that 12,000 responders to FOI requests may be breaking the law in any given year, and even though there has not been a single prosecution or conviction under Section 65 of FOISA.”

Mr Chisholm continued: “The SIC also explained that an individual with a complaint about the accuracy of a FOI response had recourse under other Acts as well as FOISA. But it would seem much more logical for all issues relating to Freedom of Information to be monitored and governed by FOISA. How is that individual supposed to negotiate the labyrinth of legislation which seems to have been concocted to protect local authorities, Government agencies, and other organisations covered by FOISA?”

Concerns have also been raised over the Information Commissioner’s policy towards public authorities who provide dodgy information in response to FOI requests after it emerged in responses to the petition that not one single prosecution of a public body breaching FOI laws has taken place – even though the Information  Commissioner and Police Scotland identified 10 cases where there was evidence that suggested a section 65 offence may have been committed.

Concluding the debate. the  Committee agreed to defer consideration of the petition to a future meeting to allow time for the  Scottish  Government  to  respond  and  to  enable  the  petitioner  to comment on evidence received.

Scottish Law Reporter previously reported on the Petition 1512 here : MSPs to question Scottish Information Commissioner over proposal to amend law on inaccurate & false FOI responses from public bodies


Disclosures obtained under Freedom of Information legislation and forwarded to Scottish Law Reporter have revealed how the Scottish Information Commissioner held discussions on how to respond to queries from the Scottish Parliament’s Petitions Committee on calls to integrate honesty clauses into the FOI Act.

In documents published today, the SIC is seen to discuss with staff as to how to reply to MSPs questions on the petition, and

Apparently concerned of queries over the lack of prosecutions of FOI violations, the SIC staff express concerns as noted : “Rosemary is to give evidence to the committee on Tuesday 6 May. One of the issues we expect will come up is about the number of s65 cases we've had. IT s a bit of a side issue (Mr Chisholm's concern appears to be about whether he was provided all information in scope of his request, though we never did have an application to investigate), but it was raised during Tuesday's committee meeting as one of the tests of whether FOISA is working.”

Commenting on the documents earlier today, transparency campaigners described the SIC’s efforts to wind up Mr Chisholm’s petition as “outrageous”.

A legal insider added “Considering the Information Commissioner has already admitted she does not have powers to investigate cases of dishonest FOI responses, perhaps the SIC may better focus its obvious influence in ensuring an honesty clause is attached to the Freedom of Information Scotland Act rather than expending so much effort to kill off the idea that anyone making an FOI request should expect honesty in responses from public bodies funded by taxpayers.”

Tuesday, April 29, 2014

MSPs to question Scottish Information Commissioner over proposal to amend law on inaccurate & false FOI responses from public bodies

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.