Western Ferries User Charter Meetings - Decision on the Appeal

I have received (20 July 2007) the Decision from the Information Commissioner's Office on my appeal on the Western Ferries Users' Charter Meetings. The full judgement runs to 33 pages and clearly will need some consideration. It will be posted in full on the Commissioner's website by Thursday 26 July.

Background to the Appeal

On 1 February 2006 I wrote to the Executive requesting details of what were termed the "Users' Charter" meetings between the Executive and Western Ferries. The possible existence of these meetings had only become publicly known through a remark by the Managing Director of Western Ferries in a local paper that ministers had responded positively to his proposals for a "Users' Charter". Since he had also made it clear separately that any such "Users' Charter" would be contingent on Western being sole operator of vehicle carrying services Gourock-Dunoon, such meetings clearly had potentially serious public interest implications. Mr Jim Mather MSP made a parallel request for information, and through questions he had asked in parliament, it had been made clear that there had been six such meetings in 2004 and 2005.

I received this communication from the Executive 28th February 2006 and associated documents were made available. I was advised that some information and some whole documents had been withheld under exemptions provided for by the Freedom of Information Scotland Act 2002 (hence FOISA).

On March 1 2006, I asked the Executive to review its decision to withhold information, citing overriding public interest reasons why the information should be published. My reasons were detailed in a letter to the Executive.

The Executive replied on 30 March 2006, upholding its original decision in full.

I then lodged an appeal to the Scottish Information Commissioner 31 March 2006 noting that the Executive had not commented on the detailed points made in my letter of 1 March 2006. The grounds for the appeal were the same as in my earlier letter.

The Commissioner's office then allocated to the case to an investigating officer. The Decision on the appeal was communicated to me by letter this week (19th July 2007). The Decision will be published in full on the Commissioner's website next week. The Executive now have 45 days to comply with the results of the appeal.

Results of my Appeal

In summary, 34 items (internal and external correspondence, minutes of meetings) were considered by the Commissioner as potentially relevant to the appeal.

4 items were subsequently deemed to be not relevant to the subject of the appeal
10 items had already been released as part of the original request for information
9 items had the original decision to withhold under FOISA exemption approved by the Commissioner.

But 11 items had the original decision to withhold under exemption under FOISA overturned, in whole or in part, by the Commissioner.

In 8 of these cases, the Commissioner found that the exemption had been misapplied by the then Executive (hence TTE) to part of the item (and that the information should now be disclosed) and also that public interest still lay in disclosure even for parts to which exemptions had been correctly applied. In all, the Commissioner identified 15 instances in these 8 documents where exemptions had been misapplied. In the remaining 3 cases, the Commissioner decided public interest still lay in disclosure even for some parts to which exemptions had been correctly applied.

Another way of looking at this is to consider the Commissoner's judgment on whether exemptions had been correctly applied to each item. Since a single item had as many as four different claims for exemption under different clauses of FOISA, this meant that there were more claims for exemptions than there were items.

Some claims for exemption were not considered because the Commissioner had already decided that a parallel claim for exemption for the same item under a different clause had already justified withholding the information.

For those claims for exemptions that the Commissioner did look at, here are the results;

Exemption applies: 15 claims
Exemption applies but only in part, other information should be released: 7 claims
Exemption applies but public interest lies in disclosure: 10 claims
Exemption misapplied: 15 claims

In other words, in only a minority of its claims did TTE get the balance of public interest right in claiming exemption from disclosure under FOISA.


Clearly we do not know the significance (if any) of this information until it is released to me (it has to be within 45 days). But for me at the moment there are some facts that stand out. As the Commissioner notes (para 38) "Professor Kay did not have the benefit of access to the documents under consideration but has commented on the general public interest issues associated with this case".

That being the case, if these public servants were doing their job properly in the public interest, given they are the professionals in this field and have the relevant information in front of them and the law at their fingertips, it raises questions as to how and why the Information Commissioner could find in my favour so often, and so often find against TTE.

So why should that be? I identified both the problem and a solution in my Extras blog here last year. My case was not unusual, but the important thing to realise why and what solutions exist. It is all a question of incentives.

But there are parallel considerations of crucial public interest. If these civil servants cannot be relied on to interpret domestic (Scottish) legislation in this area competently, what are the implications of relying on them to interpret properly international (EC) legislation in this area such as the relevance of the 1992 Maritime Cabotage Regulation, the European Court Altmark decision, and various EC state aid laws? In a different context (but still public policy for ferries) this same group of civil servants stated previously and categorically that I was wrong to argue the relevance of the Altmark decision in this context and also rejected my arguments that PSOs under EC rules were needed to subsidise lifeline ferry services. As I note elsewhere on these ferry pages in my comment on Answer by the Commission, the Commission has recently confirmed that I was right on both these counts and TTE was wrong.

Footnote on European dimension

The Decision notes that TTE added a further claim for exemption under FOISA clause 32(1)(a)(ii) - international relations - to one document (Document 15) after my appeal to the Commissioner was lodged. The Commissioner's decision reveals TTE claimed that:

"disclosure of this document would substantially prejuduce relations between the United Kingdom and the European Commission".

Now there is a statement to read again to make sure you got it right.

The Commissioner said that no reasons were given for applying this exemption and that in the absence of substantial arguments, the exemption was wrongly applied, so relevant information is to be released to me.

There may be nothing much at all in this; the Commissioner implies some of the information to be released was already public knowledge - but it still will be interesting to see what this document, or at least the bits that will be released to me, says. Either TTE was seriously overhyping (not unlikely given their track record) that the UK's national interests and relations with the EC would be threatened by disclosure, or they really may have seen their actions in this context as prejudicing their position with the Commission if these discussions became public. Either way, it will be interesting to see.

Neil Kay 21st July 2007