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