Lockerbie row rumbles on

Libyan leader Colonel Gaddafi never travels without his female bodyguards

Abdelbaset Ali Mohmed Al-Megrahi is the man some people think was responsible for carrying out the bomb attack on Pan Am 103 that crashed into Lockerbie killing a total of 270 people.

His conviction and his subsequent release on compassionate grounds has been the subject of a great deal of controversy.

Some people say he was innocent of the crime and should never have been imprisoned some say the least he deserved was to die in jail.

When he was diagnosed as being terminally ill with prostate cancer a decision was made to allow him to go back to his Libyan homeland for the last few days of his life. This took place in August last year.

The nub of the issue in his release was that he was only expected to live for a further three months and allowing him home was the humane thing to do.

Ten months later he is still alive and MSP George Foulkes wants to see the monthly medical reports on Al-Megrahi’s condition that are logged with East Renfrewshire Council.

Clearly the information is covered by the Data Protection Act and as medical data would also be considered to be ‘sensitive’.

Mr Foulkes said there was a clear public interest in the matter becoming public knowledge but because the data was subject to schedule 3 there were only two possible ways the information could be released.

Firstly if Mr Al-Megrahi gave his explicit consent to the information being released. He was contacted and didn’t give permission.

The second exception was if the information had already been made public by the deliberate actions of the data subject.

The Commissioner made checks to see how much of the medical data about Al-Megrahi he himself had made public and found media reports with generic information that his condition was getting better or worse. But there was no specific information in the reports.

So, the reports will remain secret. However, I’d be interested to know if people think making the same application after Mr Al-Megrahi dies might be successful.

Mr Foulkes is reported as saying: “Foulkes said: “I am very disappointed that the freedom of information laws within Scotland don’t allow the public access to this information.

“It is clear that Megrahi, through his lawyer, has vetoed it. This is matter of not just national interest but also international interest. There are relatives of Americans who died who are concerned about it.”

The decision [link] has caused some controversy in Scotland. In February, Bill Aitken, justice spokesman for the Scottish Conservatives, said: “It is almost bizarre to suggest that the biggest mass murderer in Scottish history should be just like any other client. He is not. The public have a right to know what is going on.”

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] .

FoI bugging the bugging watchdog?

Should we be expecting less kick and more water in the future from the OSC?

Tucked away in the Annual report of the Office of the Surveillance Commissioners (OSC) was an interesting nugget for those of us with an interest in Freedom of Information - the quango’s boss Sir Christopher Rose issued an apology for misinterpreting FoI law - but he gave away a much more telling comment about how he intends to deal with the legislation in the future.

Much to annoyance of many people the OSC was not and it appears is in no danger of being brought under the FoI regime. However, its sole duty is to monitor the way public bodies use surveillance and bugging techniques and is responsible for ensuring that authorities allowed to use such powers are not overstepping the line.

The OSC’s staff has a constant monitoring process going on which ensures they regularly produce reports for authorities on the way they have been using surveillance techniques. These reports cannot be obtained under FoI from the OSC because it is NOT covered by FoI.

But what has clearly annoyed the OSC was that those devious people from the media were asking for copies of his reports from the organisations they were then sent to.

A petulant Sir Christopher wrote in his annual report last year:

During this reporting period there has been a significant increase in the number of Freedom of Information requests from the media. It is not usually an area on which I comment but I report my concern. I never disclose the contents of my reports to anyone other than the relevant Chief Constable or Chief Executive. But requests to the recipients of my reports have been aimed at acquiring my reports, my correspondence to and from Chief Officers and the action plans related to the recommendations that I make.

 Responses by public authorities have been inconsistent and there is the perception that a decision by one authority to respond positively may lead the requestor to view negatively those which do not

disclose the information requested. When asked for guidance I have responded that it is in the public interest to demonstrate that covert surveillance conducted on behalf of the State is properly

regulated. This Annual Report is designed to provide that assurance. Seeking assurance of regulation is one thing, but attempting to acquire, under the auspices of freedom of information, operational details or knowledge of covert techniques is another. Redaction of these details from my reports could be misconstrued as secrecy or might adversely affect context and meaning.

 I favour the advice provided by the Information Commissioner (Guidance Note 25). I regard myself as a ‘qualified person’ as defined by Section 36 of the Freedom of Information Act and it is my ‘reasonable opinion’ that for public authorities to disclose the contents of my reports would prejudice the effective conduct of public affairs. The risk of disclosure might tempt some individuals to withhold the full details of covert activities from me or my representatives; it might inhibit my ability to provide the evidence that is necessary to support my recommendations and it might inhibit the free and frank exchange of views and provision of advice that is currently the hallmark of the relationship which my Office enjoys with public authorities.

 However this year he sounds a good deal more contrite:

Last year I commented on the impact of the Freedom of Information Act and the pressure on public authorities to disclose my reports. My intent was to address the difficulty of balancing transparency with the need to protect covert techniques and activity. They are not comfortable bedfellows. In order to provide evidence to support my recommendations, I frequently have to provide detail of

specific investigations or tactics. I protect my reports in accordance with the Government Protective Marking System. Without this evidence and protection, they would be of little value to the authority reported on. Redaction, however, can attract adverse comment. The OSC never discloses the content of its reports to third parties.

 I misled myself regarding section 36 of the Freedom of Information Act. I am not capable of being a ‘qualified person’ within the meaning of that Act. I therefore confirm that the decision whether to disclose my reports, and if so in what form, rests with each public authority. I have promised to review the design of my reports to assist public authorities to meet their obligations.

 What do we think does this last sentence means? Is he admitting that he is going to make sure less information of the kind he does not want disclosed is put in the reports because of the Freedom of Information legislation? Is this the first concrete example of the so-called ‘chilling effect’ where FoI laws actually work to create less openness because people are frightened and wary of disclosure?

 On a final point on this matter it may be that between Sir Christopher’s comments in the 07/08 report and his climb-down in the 08/09 report, the decision by the Scottish Information Commissioner could have had some influence.

 In a judgement against the Scottish Prison Service (SPS) the Scottish Information Commissioner ruled the report of the OSC should be made public subject to a few redactions in particularly sensitive sections.

 The decision notice stated: “The Commissioner does not accept the arguments put forward by the SPS that a statutory body with a defined statutory task, such the OSC, would materially water down the content of reports on the basis that they might be made generally available to the public.”

 It would appear the OSC may have decided he is going to do exactly that in future - should we expect a dilute future from the OSC?

[link to OSC report 07/08]

 [link to OSC report 08/09]

 [link to decision of Scottish Information Commissioner is case of the Scottish Prison Service]