Freedom of Information

South Lanarkshire Council are up to their old tricks again on Freedom of Information (FoI) and having been around this track once or twice before in recent years - I've decided not to mess about. 

So, I have submitted the following FoI appeal to the Scottish Information Commissioner - watch this space for further details.

Rosemary Agnew

Scottish Information Commissioner

Kinburn Castle

Doubledykes Road

Fife

KY16 9DS

Dear Ms Agnew

South Lanarkshire Council (SLC) – FoI Appeal

I enclose an exchange of correspondence with South Lanarkshire Council (SLC) regarding a FOISA enquiry, which I initiated with the council on 20 August 2013. 

I asked for a review of the Council’s initial decision, but remain dissatisfied with their response. I am, therefore, registering an appeal with the Scottish Information Commissioner (SIC) as I consider the Council’s response to be unsatisfactory for the following reasons:  

1. In my view, South Lanarkshire Council’s case for non-disclosure comes down to no more that a desire to protect senior officials and council members from the consequences of their poor judgment, over a period of years, in agreeing to pursue this case all the way to the UK Supreme Court where the Council’s appeal was unanimously dismissed, but only after incurring enormous public expense.
2. My original FoI request in 2010 was rejected by the Council as ‘vexatious’, yet ended up in the highest court in the land where five judges ruled decisively that the information I had requested belonged in the public domain all along. A  decision which supported an earlier unanimous judgment from three senior judges in Scotland’s Court of Session, and an independent adjudication from the Scottish Information Commissioner (SIC). 
3. In 2010 I accused South Lanarkshire Council of engaging in a cynical abuse of the FoI process and of using public money to delay disclosure when the Council had a duty to operate in an open and transparent manner. I said also that South Lanarkshire was the only council in Scotland to behave in this secretive and furtive way, which has proved to be correct as well.
4. So, what we have here, in my opinion, is a Council which has ‘long arms and deep pockets’ when it comes to spending public money, and I say that the public has a right to know how the Council arrived at its decision/s to fight this case all the way to the UK Supreme Court. In other words the public is entitled to know how the Council got things so spectacularly wrong, especially as further public scrutiny would hold the Council to account for its actions and, I suspect, improve the quality of its decision making in future. 
5. As far as I can see the recent decision of the UK Supreme Court has resolved all of the underlying legal arguments regarding disclosure. So I reject the Council’s  argument that the release of such information at this stage could prejudice its position going forward, since the information in question is now simply a matter of historical interest.
6. To my mind the Council has not offered any convincing arguments, never mind evidence, regarding the public interest or the potential benefit to be gained by disclosing the information I have requested. Yet it seems evident to me that the public interest would benefit greatly from a clearer understanding of what drove the Council to spend so much money and effort in fighting a case that was so comprehensively defeated in Scotland’s highest civil court and subsequently in the UK Supreme Court - on both occasions unanimously.
7. By way of example, I was a member of a public body myself for several years - SLARC (Scottish Local Authorities Remuneration Committee) which advised Scottish Ministers on pay and related issues involving elected local councillors. All Committee papers (minutes, documents and reports) were covered by the FoI regime and in presenting various reports to Scottish Ministers over the years, SLARC was required to explain and detail the evidence on which its recommendations to Scottish Ministers were being made.
8. In my view, the same standards should apply here. The public interest lies in requiring the Council to explain its decision/s and the decision making process which led to such a comprehensive rejection of its case, so much so that one of the Supreme Court judges described it as resembling something out of Alice in Wonderland after two hours of legal sophistry on the meaning of the word ‘necessary’. And as everyone knows, lawyers only offer advice but their ‘client’ has to make the final decision based on a wide range of factors including the assessment of risk.
9. My arguments, of course, also apply to the separate ‘risk assessment’ document prepared by senior council officials which is not a legal document at all, but is equally significant from a public interest point of view. Again I say that the public has a right to know how these matters were assessed and whether this was done on a professional and objective basis, which I suspect they were not.
10. So, if anyone has behaved vexatiously in this matter it is clearly South Lanarkshire Council and in the unique circumstances of this case, I say that the public interest test tilts the balance of the argument in favour of disclosure. In my view there is no evidence that the Council would be prejudiced by disclosure nor is there any evidence to suggest this would compromise the conduct of public affairs. In fact, I say the exact opposite is true and on that  basis I invite the Scottish Information Commissioner to uphold my appeal.     

I look forward to hearing from you in due course and if you require any further details or clarification at this stage, please contact me on my mobile phone number or by e-mail atmarkirvine@compuserve.com

Kind regards

Mark Irvine 

List of enclosures x 4

Original FOISA request to SLC dated 20 August 2013

Initial SLC response dated 17 September 2013

Further review letter to SLC dated 20 September 2013 

Final response letter from SLC dated 21 October 2013