FOI Request

I asked South Lanarkshire some weeks ago to provide me with a copy of the Council's legal advice in relation to the landmark Supreme Court hearing in July - and also for details of the Risk Assessment drawn up by the Council's senior officials.

Perhaps predictably, South Lanarkshire has refused my request - although you might have hoped that the Council would have learned some lessons about the importance of openness and transparency - when dealing with public money.

So, I have decided to ask for a review of the initial FOI response - because I far as I can see there is no valid reason to withhold this information - given that the underlying issues have all been settled and in such a comprehensive fashion by the UK Supreme Court.

As ever in these situations the obvious question is - "If the Council has nothing to hide, why doesn't it just come clean?"    


Dear South Lanarkshire Council 

FOI Review Request

I refer to the Council's letter to me dated 17 September 2013 and would like to submit the following FOI Review Request.

1 I do not agree with the Council's arguments in respect of my 2012 request, but in any event I would point out that the circumstances have changed significantly since that 2012 request, as a result of the recent landmark FOI decision of the UK Supreme Court.

2 In my view the Supreme Court decision puts my request in a quite different context in the sense that a clear legal precedent has now been set by the dismissal of the South Lanarkshire's ill-judged appeal. The five judges from the Supreme Court agreed with three senior judges from the Court of Session and the independent Scottish Information Commissioner in ruling that the information sought in my original 2010 FOI request rightly belonged in the public domain.

3 The Council's legal advice is, therefore, simply a matter of historical interest and record - not a matter of ongoing argument and debate since the underlying legal issues have now been resolved. As such, I can see no valid reason for not releasing details of the Council's advice as this cannot compromise or prejudice the Council's position going forward. 

4 Furthermore, it seems to me that the costs of fighting this case all the way to the UK Supreme Court (@£200,000) and losing unanimously - having lost unanimously at the Court of Session - calls into question the quality and efficacy of the Council's advice and its assessment of the risks involved. Against this background, I believe the Council's use of public money deserves more serious scrutiny and in the particular circumstances of this case, I believe the balance of the argument is tilted in favour of disclosure.

5 To my mind the same arguments apply to the advice of the Council's chief executive and the Council's executive director of finance. My view is that the advice of the Council's senior officials should be the subject of public scrutiny, not just because the Council got things so spectacularly wrong, but also because there is no ongoing legal action and there are no longer any issues of principle involved given the decision of the UK Supreme Court. In which case I believe there is no valid reason to prevent this information being released into the public domain.

6 In particular, I reject the argument that the release of such information would prevent a free and frank exchange of views on major issues within the Council. In fact I believe the opposite is true and that a wider examination of the Council's handling of this affair would help to improve its decision-making in the future. I have to say I cannot regard the Council as defending any high point of principle here. In fact, all I can see is the Council trying to protect senior officials and political leaders from potential embarrassment given their poor judgement in pursuing this case so far, which became reckless, in my view, after the unanimous decision of three senior judges in the Court of Session to uphold, unanimously, the adjudication of the Scottish Information Commissioner (SIC).   

7 Finally, I believe the Council's initial response has got the balance wrong in terms of weighing the public interest against the Council's perceived need for privacy and privileged communications on the part of its senior officials.

I look forward to your reply and would be grateful if you could respond to me by email to: markirvine@compuserve.com

Kind regards

Mark Irvine