Posted on August 12th, 2009 1 comment
The Scottish Information Commissioner Kevin Dunion has issued an interesting decision notice which could provide scope for a more relaxed interpretation of S.40(Personal Information) south of the border.
The case in question relates to the results of disciplinary hearings held on police officers found guilty of drink-driving.
Dumfries and Galloway Police told Guardian reporter Ian Cobain how many officers were convicted but refused to state what had then happened to them. The police force said the disciplinary hearing information was covered by S.38 of the Freedom of Information Scotland Act – the rough equivalent of S.40 in England, Wales and Northern Ireland.
The police force admitted two officers had been convicted of drink-driving but refused to state what had become of them. However, following an internal appeal the police stated that neither officer now worked for them – but didn’t state how they came to have left the force.
As a matter of contrast between the systems north and south of the border it is interesting to note that the original question was sent on February 1, 2008 and the Scottish Information Commissioner was already in contact with Dumfries and Galloway Police Force on March 18.
In summary Dumfries and Galloway Police said the release of the information would be a breach of the first Data Protection principle, there was no ‘legitimate interest’ under the act and that officers had a right to privacy under Article 8 of the European Convention on Human Rights. It also stated that it was common knowledge within the force that these two officers had been the subject of misconduct hearings and if the information was released people would know exactly what had happened to them.
The Commissioner accepted that the information was ‘personal data’ under the terms of the Data Protection Act but he also accepted that Mr Cobain had a ‘legitimate interest’ in obtaining the information.
The reporter had argued the offence of drink-driving was a serious crime and guidance in England stated that convicted officers should be dismissed while in Scotland the policy was not as clear cut.
The Commissioner then stated how he had to conduct a balancing exercise to see if the “legitimate interests of Mr Cobain outweigh those of the police officers” and if so the information of what became of the police officers could be disclosed without breaching the first data protection principle.
In summary he said: “The Commissioner accepts the police officers may have had a certain expectation that the outcome of the disciplinary hearing would not be disclosed. Indeed, he accepts that it is uncommon for the outcome of disciplinary hearings to be disclosed. However, given the special role which police officers play in society, and the seriousness of the offence, the Commissioner considers that in this case the rights and freedoms or legitimate interests of the officers involved are outweighed by the legitimate interests of Mr Cobain.”
Because disclosure would not be a breach of the Data Protection Act the information was not covered by S.38 of FOISA.
We have seen few decisions where the protection afforded an individual under the Data Protection Act can be waived so this has important ramifications. High profile public servants have had to come to terms with the fact their salaries will become public knowledge now if they fall out of line they can no longer expect a complete blanket ban on how they were dealt with.
Posted on April 11th, 2009 No comments
An important test case looks set to be heading to the Court of Session in Scotland in relation to the disclosure of where paedophiles are housed.
Three Scottish Housing Associations have been trying to use the Act to establish if they have become “dumping grounds” for sex offenders when they are released from prison.
Requests to Strathclyde Police and then the Scottish Information Commissioner have been refused on the basis that disclosure would be a breach under the Data Protection Act of the individuals’ personal data.
The Housing Associations argue that they do not want exact addresses but postcodes so it can be seen if such individuals are being foisted on to them.
The Associations say accurate data on the subject would allow a more informed debate about the topic of how and where paedophiles are housed.
It is believed the Associations have been attempting to get hold of the statistical data since the 2004 murder of schoolboy Mark Cummings in Royston, Glasgow, by Stuart Leggate, who had previous convictions for sexually assaulting children and was on the sex offenders’ register (link).
For more details on the case see the following article from The Herald (link).
Editor’s note: In the early days of FoI in England my successful appeal ended with police forces in England increasing the geographical data they gave out about sex offenders (link). However, it is still very wide and nowhere near as specific as the Housing Associations in this case are requesting. I understand the concerns about vigilante attacks but if you were a parent living in this accommodation or an official tasked with housing families wouldn’t you like to know who the neighbours are?
Posted on March 13th, 2009 No comments
Kevin Dunion, the Scottish Information Commissioner has launched an attack on the UK Government and Westminster saying those in power south of the border are losing their nerve about Freedom of Information.
He says they are backsliding on their commitment to freedom of information and returning to the secrecy culture of the 1960s and 1970s.
Speaking to the Sunday Herald, Mr Dunion highlighted Jack Straw’s first use of the ministerial veto to block the release of Cabinet minutes dealing with the Iraq war.
He also said many MPs simply “don’t get” the concept of letting the public see the detail of how they spend taxpayers’ money, despite it being the norm at Holyrood.
Mr Dunion said: “I discern a palpably different mood north and south of the border. I just wonder, where are the friends of FoI down south?
“We are very keen to press ahead with the extension of FoI in Scotland, and we are in discussion with Bruce Crawford minister for parliamentary business.
“Down south, the indications are that’s far from the government’s agenda. It’s more concerned with amending FoI, to make sure it doesn’t apply to things like Northern Rock and to use the veto to stop the release of Cabinet minutes.
“Those are all really negative indicators from down south, which at the moment we don’t seem to have any parallel for in Scotland.”
“The use by Jack Straw of the veto should not be at all downplayed,” said Dunion. “It is a nuclear option for a minister to press the button on using the veto and overriding not just the information commissioner, but the Information Tribunal.
“We are now getting clear signals that English legislation may be amended so that Cabinet minutes become absolutely exempt. That is quite a departure from progressive thinking in FoI. That’s going back to 1960s, 1970s thinking.”
His comments come as the SNP government considers whether to extend the reach of FoI to a new range of organisations in Scotland.
Dunion has asked for the biggest Public Private Partnership (PPP) contracts, including privately run Kilmarnock Prison, and around 80 arms-length council trusts, many handling leisure services, to be designated as open to FoI.
Starting with housing associations owning more than 1000 homes, he has also asked for all 170 registered social landlords to be designated. The change would not expose private companies to every kind of FoI request, but it would open up specific contracts under which they carried out a public function, such as building a hospital or maintaining a school.