Freedom of Information; not a general right of access to documents

A recent decision from the Scottish Information Commissioner has highlighted an important yet often overlooked point regarding freedom of information ("FOI") requests in Scotland; that the Freedom of Information (Scotland) Act 2002 ("FOISA") gives a right to be given access to recorded information, not to actual copies of documents.

The background

The Scottish Ministers received a FOISA request for correspondence relating to the Scottish referendum on independence. The applicant requested "information contained in any communication or correspondence including, though not restricted to: emails, letters, memos, minutes or other electronic/hand written notes/logs of conversations or telephone calls between Scottish Government Ministers (including the First Minister) or officials (including Special Advisers)". In response, the Ministers provided to the applicant the content of four emails; but not the emails themselves. Unsatisfied, the applicant asked the Ministers to confirm that the documents he had received represented the full correspondence, noting that he would prefer to receive exact copies of the documents. Additionally, he asked for the documents recording other correspondence relating to the referendum.

The Ministers did not provide the applicant with copies of the full emails, being of the view that the summarised content which had already been provided to the applicant was an adequate response to the FOI request. Furthermore, as regards the last part of the applicant's request, the Ministers noted that this was "a general request for copies of documents". This part of the request was therefore invalid in terms of section 8(1)(c) of FOISA, which requires that an FOI application "describes the information requested".

The applicant applied to the Commissioner for review of the Ministers' decision, making clear his dissatisfaction with the provision of edited documents and the continued refusal to provide exact copies.

The Commissioner's decision

The Commissioner upheld the Ministers' view that they could not be obliged to provide copies of documents and it was sufficient for the applicant to be provided with a summary of the content. However, for other reasons, the Commissioner found that the Ministers had failed to deal with the request in accordance with FOISA.

This is in-keeping with the Court of Session's 2009 decision Glasgow City Council and Dundee City Council v Scottish Information Commissioner which stressed the distinction between a general request for documents and a request for the information contained in the document. This decision was primarily based on two legal points. Firstly, FOISA provides a right to information and information is defined as "information recorded in any form" (section 73) (i.e. it is not limited to information in the form of exact documentation). Secondly, section 11 of FOISA lists the many means of providing information – including both "a copy of the information" and "a digest or summary of the information".

In short, this decision affirms that having a right of access to recorded information does not necessarily entitle the applicant to view the entire document within which the information is contained. The information may be presented, as occurred in this situation, in a summarised form. Alternatively, an edited form of the document may be presented with certain pieces of information removed if they are exempt from disclosure under FOISA, for example confidential information or personal data.

Comment

It is easy to see how FOISA could be misunderstood by members of the public as entitling them to documents they would not otherwise have access to. For the applicant, realisation that the entitlement is to recorded information and not necessarily to full documents could, in certain circumstances, be disappointing. For the body receiving the requests, appreciation that a request does not have to result in the full disclosure of documents may give back an element of control. However, it should be remembered that, although full copies of documents do not have to be disclosed, a public body cannot summarise or delete content to the extent that any relevant non-exempt information is withheld from the applicant. To do so would be to leave itself open to the Commissioner's review.