The never-ending saga of a simple request for information
by OUR LOCAL GOVERNMENT EDITOR
This is the story of a Freedom of Information request with a lifespan (so far) of thirteen months which perfectly illustrates how the current FOI system is letting down those who use it while at the same time allows councils and other public bodies to conceal intelligence for longer.
It was back in June 2023 when the draft annual accounts for the previous fiscal year showed that a fortunate individual who had been on the payroll of Scottish Borders Council trousered an exit package worth £160,295 on leaving his or her employment.
When council sources suggested the sizeable award had gone to Netta Meadows, the short-lived SBC chief executive who departed in mysterious circumstances in September 2022 after just 15 months in post, a FOI request seemed the best way to find out where such a substantial wad of taxpayers' cash had gone.
In addition, the local government 'trade' paper Municipal Journal had carried a report suggesting Ms Meadows had submitted a grievance, with a hearing due to take place shortly before she left.
So, the Borders local authority was asked for copies of all paperwork related to the procedure together with the reasons for her quitting the £136,000-a-year top job.
A month later came this response from People, Performance and Change at SBC: "The Council is obliged to publish details of any payments made to any employee who has a material controlling interest in the affairs of the Authority through the annual accounts remuneration statement. This applies to all members of the Council Management Team who held office during the year. No such payments were made to any Chief Officer in the year 2022/23. Were any such payments to be made to an individual they would be disclosed within the remuneration statement.
"As regards the further details you seek, the Council can neither confirm nor deny that it holds any such information. Any such information held would be exempt from disclosure in accordance with S.38(1))b) of the Act on the grounds that it constitutes personal data and its release would contravene the principles contained in S.86-91 of the Data Protection Act 2018."
Applying to the council for a review of their decision seemed pointless. But under FOI regulations a requester has no choice if the case is to be appealed to the Scottish Information Commissioner. The review process consumed another month of valuable time while interest in who had actually been given the £160,000 golden goodbye had already waned somewhat.
Needless to say, SBC stuck to its guns, and Commissioner David Hamilton was asked to intervene and investigate. Any hopes this would bring the lengthening email trail to a rapid end would soon be dashed.
The appeal was validated in early September 2023. But nothing more was heard from the Commissioner's office until December when there was a request for an update.
According to the SIC: "Please accept my apologies for how long you have been waiting for your case to be allocated to an investigator. I’m really sorry this process is taking so long. Your case is one of 200 that are still awaiting allocation to an investigating officer.
"However, our Head of Enforcement is in the process of assessing all of the cases in our backlog with a view to them all being transferred to an investigating officer and I can advise you that he reviewed your case this week. Our office is also recruiting for additional investigators."
There seemed to be cause for optimism in January 2024 when this email arrived from the information watchdog: "Our new strategy - From 1 January 2024, we will split our appeal caseload into two separate workstreams, with two distinct teams responsible for progressing appeal cases. Cases received prior to 1 January 2024 will be marked as ‘blue’ cases and progressed by a newly-established, highly effective and experienced team. Your appeal falls into the ‘blue’ category.
"Please be assured that we will continue to progress your application as quickly as possible. Where it appears appropriate, we will contact you shortly to confirm that you still have a live, ongoing interest in the information at the heart of your request and to explore whether there are any potential avenues to explore to resolve your application. My team may also provide you with an indication of the likely outcome of your case. Please bear in mind that my investigator(s) assigned to the ‘blue’ cases are highly experienced members of my Enforcement Team and we would encourage you to consider the advice they provide you very carefully."
However, this proved to be yet another false dawn. Three months later another update was requested.
The response this time had a familiar ring about it: "Your application is currently awaiting allocation to an investigator. At this stage, I cannot give you a timescale for when it is likely to be allocated or when you can expect to receive a decision.
"We will, however, endeavour to progress your case as quickly as we can. When your case is allocated to an investigator, they will contact you to introduce themselves and to set out the scope of their investigation. You may also be contacted prior to your case being allocated if potential avenues to resolve your application are identified. Further to the changes set out in our email of 23 January 2024, we have hired a number of new investigators this year and have two more investigators due to start with us at the end of the month. This will allow us to allocate cases more quickly."
With all remaining remnants of patience gone, SIC was approached on June 24th with the following message: "My request’s inclusion in the ‘blue’ category has failed to produce any progress, let alone reach a decision. This is extremely disappointing and frustrating. Can I respectfully ask for a detailed update on ‘progress’ with my case – has it even been allocated to an investigating officer? Has any contact been made with SBC? Under FOI regulations, public authorities are supposed to respond to requests within a given time. Are there parallel regulations for the timescale in which the SIC must produce a decision notice?"
In a rapid response received the same day, SIC declared: "I can confirm that there is not currently an investigating officer for your appeal. However progress has been made by our validation team, who handle certain initial steps before an investigator is assigned. We have requested information from the Scottish Borders Council, and received its comments in October 2023.
"The investigating officer, when assigned, will get in touch with both you and the council to introduce themselves and ask you any follow up questions they may have. On the basis of this information a draft decision shall be prepared, and go through a two stage approval process. In terms of our timescales, section 49(3)(b) of the Freedom of Information (Scotland) Act 2002 states that (subject to certain qualifications that do not seem to apply to your case) the Commissioner must "reach a decision on the application before the expiry of four months after receiving it, or before the expiry of such other period as is reasonable in the circumstances."
When it was pointed out to the SIC that the organisation was failing members of the public whose requests were blocked or denied by public bodies, the Commission provided a further response on July 17th.
This time they commented: "At this stage, it is not possible to provide a definitive timescale for when you can expect to receive a decision from the Commissioner. Generally, we would expect an investigation to conclude within a matter of months of the case being allocated to an investigator.
"However, a number of factors can affect this (e.g. workloads, case complexity, the volume of information we are required to consider, etc.). Your case is currently awaiting allocation to an investigator. For the reasons set out in previous correspondence to you from the Commissioner’s office on this matter, we cannot, at present, provide an estimate date for when this will take place. We will inform you as soon as we are in a position to allocate and progress your case."
CONCLUSION: Scotland's FOI system appears to be in disarray if this case is typical of the hundreds awaiting decisions. As we reported yesterday, 197 requesters are still due an outcome more than twelve months after lodging appeals with the SIC.
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