FOISA Education Council Incorrectly Relies On Confidentiality Exemption

The Freedom of Information (Scotland) Act 2002 (FOISA) gives individuals the right to ask for, and be given, any kind of recorded information from public authorities in Scotland. However, public authorities have the right to refuse an information request in certain circumstances, including when the information is exempt under FOISA. An exemption commonly used by public authorities is that of confidential information - as was the case in circumstances surrounding the recent decision of the Scottish Information Commissioner (SIC). FOISA provides that information is exempt if it was obtained by a Scottish public authority from another person and its disclosure to the public would constitute a breach of confidence actionable by that person.

What happened?

An individual named Mr Brown made an information request under FOISA to the Scottish Further and Higher Education Funding Council (SFC). Mr Brown had requested the names of individuals who had been interviewed in relation to a report (prepared on behalf of the SFC) on the governance procedures of a college following suspension of the college's principal. The SFC withheld the names of the interviewees, relying on the FOISA exemptions of confidentiality and personal information.

Mr Brown asked the SFC to review their decision (as he was entitled to do under FOISA), but the SFC decided to continue to withhold the information. If an individual has already been through the two steps of making a request and requesting a review and are still not happy, they can then appeal to the SIC - as Mr Brown did in this case.

The SFC argued that the verbal assurances on confidentiality were given to interviewees at the outset of interviews and therefore the exemption of confidentiality applied. Mr Brown accepted that the information obtained from the interviews may be confidential but that the names of the interviewees were not, and pointed out that the report stated that "SFC reserves to publish the report in whole or in part".

What did the SIC say?

The SIC found that the SFC wrongly relied on the confidentiality exemption:

The SIC's decision noted that a redacted version of the report was in the public domain, and although the interviewees' names were not provided outright, the report made reference to titles such as "The Chair" - so, at least some information in relation to the identities of some of the interviewees was in the public domain. However, the SIC conceded that most of the interviewees' names were...