Scots Parliament loses McMeta request battle

Once you get a meta-request it can go on and on and on and........

The subject of so-called meta-requests (a request about how an earlier request was dealt with) has been one of my pet subjects after being found ensnarled in a saga over one such question with the Ministry of Justice.

My case is still rumbling on, after being bounced back by the High Court, although the MoJ has now provided me with two huge files of papers which I am working my way through.

Not to be outdone the Scots have also managed to get themselves embroiled in such a dispute over a request – and just like the decision south of the border the Scottish Information Commissioner has ruled against a blanket ban on such requests.

In Scotland the process began in August 2008 when Mr David Rule made a request to the Scottish Ministers for information. He was provided with an answer in October 2008.

Mr Rule then put in a request asking for a copy of the report that had been prepared by officials who had been responsible for putting together the response to his original question.

This was refused on the basis that the information was subject to S.30 of the Scottish FoI Act which mirrors S.36 (Prejudice of public affairs) in England.

When the case went before the Scottish Information Commissioner the Ministers plea for non-disclosure was that officials would be less likely to give “free and frank” advice if they knew in the future it would be made public.

However, the Commissioner ruled that the exemption did not apply to the report and so did not even go on to consider the public interest question.

He stated in his ruling that: “The Commissioner looks for authorities to demonstrate a real risk or likelihood that actual harm will occur at some time in the near (certainly the foreseeable) future, not simply that harm is a remote possibility.

“Also, the harm in question should take the form of substantial inhibition from expressing advice and/or views in as free and frank a manner as would be the case if disclosure could not be expected to follow. The word “substantial” is important here: the degree to which a person will or is likely to be inhibited in expressing themselves has to be of some real and demonstrable significance.”

Clearly the Commissioner is saying that the bar is set high for this exemption and in this case the Ministers didn’t really get anywhere near close to it.

The Decision Notice goes on to say: “The Commissioner does not accept that disclosure of this information would prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs.

“The prejudice envisaged, which entails the discontinuance of the production of such written reports to be replaced by oral feedback instead is not in the Commissioner’s view justified by disclosure and therefore should not be regarded as inevitable or likely.

“Any sensible reading of the report would show that it is a thorough and well-written account. Far from containing trenchant criticism it is largely factual and does not apportion blame but indicates where improvements can be made. Disclosure would not be likely to affect the nature or tenor of such a report, which shows the Ministers taking their freedom of information responsibilities seriously and would not justify the discontinuance of the production of such a report. The avoidance of such prejudice is entirely within the control of Ministers through the management of their officials.”

So the conclusion is that meta-requests are NOT automatically exempt from disclosure and any reports or correspondence on how an authority came to make a decision in relation to a Freedom of Information request can be disclosed.

But the key element here is that the meta-request has to be handled independently of the first request and it may be there is exempt information – but it all depends on the specifics of the case – north or south of the border.

You can find the decision notice [here] .