Shepherd and Wedderburn LLP
  June 15, 2005 - Scotland

Time to Appraise your Freedom Of Information Forecast
  by Hazel Moffat

What's your Freedom of Information forecast? Reasonably sunny, distinctly rainy or altogether a bit hazy? Whatever your response, it is possible to brighten your outlook and weather those FOI storms. If you’re an in-house lawyer in a public body in Scotland you'll no doubt be more than familiar with the Freedom of Information (Scotland) Act 2002. Five months on from the Act's full implementation date of 1 January 2005, it's time to take stock of your public body's progress so far. One of the best ways of doing this is to carry out an internal audit of your organisation’s FOI compliance record to date. Whether you carry this out in-house, or outsource it to an independent third party, there are a number of key questions that should be asked in order to test the robustness of your procedures. Are deadlines being met? Are staff aware of what is required of them under FOI? Do you think your employer's procedures are sufficiently comprehensive? Have you had occasion to withhold information? How easy was it to determine what information should be withheld? Have you carried out any internal reviews and how did they go? Have you reworded confidentially clauses? Are you alerting potential and actual contractors to the requirements of the FOI Act? These questions should be asked of all staff so that everyone is given an opportunity to pass comment, and express any concerns. So send out 'round-robin' emails. Post messages on your intranet. Put FOI on meeting agendas. Make sure that everyone at all levels is given an opportunity to be heard. Audits enable public bodies to identify procedural problems and knowledge gaps, and to take remedial action. This action may be taken by the public body in isolation, or it may be taken after consultation with other public bodies. Consultation is an effective tool in identifying common solutions to common problems. One problem frequently highlighted by audits relates to when legal advice should be sought. All too often lawyers are being dragged in to provide advice on complex areas of law at the last gasp. This is clearly far from ideal. Given that public bodies have a maximum of 20 working days to respond to requests, and to carry out internal reviews, it is critical that all staff know to seek legal help as soon as possible. The sooner in-house lawyers are made aware of FOI queries and internal reviews, the sooner key issues can be addressed and the sooner any referrals can be made to external legal advisers, if required. External legal advisers can provide specialist input on complex FOI requests, and can, in particular, help to demonstrate the independence and impartiality of an internal review process. Another issue often thrown up by audits is the manner in which external legal advice is sought. Best practice dictates that all communications with external lawyers should be made through an in-house legal team. This helps ensure that there is control over the flow of information and advice, and that communications, which can often be extremely candid, attract legal privilege and do not require to be disclosed. This is particularly important as legal privilege is also one limb of the confidentiality exemption contained in the FOI regime enabling public bodies lawfully to withhold this information. This legal privilege point is particularly important in view of the landmark legal judgement in the Three Rivers case last year. In this case, the English Court of Appeal held that communications only attract legal privilege if they are between a client and his solicitor, and that a client is the person or persons within an organisation authorised to instruct the solicitors. This means that according to the Court of Appeal's interpretation, communications from an employee within an organisation who does not have authorisation to instruct solicitors would not attract legal privilege. Whilst this judgement is not binding in Scotland, it is persuasive. To keep legal privilege intact and protect legal advice from disclosure under FOI as far as possible, it is absolutely vital to ensure that external referrals are directed through the in-house legal team or by properly authorised employees. Taking the time now to identify and fix any problems in the FOI process can ensure blue skies ahead.


Footnotes:
Hazel Moffat is an associate specialising in public law with commercial law firm Shepherd+ Wedderburn +44 (0)131 473 5423