UPDATE 30 June: In the 2nd last sentence of this post I stated incorrectly that the Crown Office had to reply to my FOI Internal Review request by 6 August. I counted 20 days from submission rather than 20 working days. The due date is actually 14 August. Apologies!
At last, some more information is to be revealed .… but not much and not quite yet!
Paul Delamore, one of the co-authors of the recent Scotland on Sunday article on Willie’s death, has won his appeal to the Information Commissioner over Police Scotland’s refusal to release information requested under our Freedom of Information Act, FOISA (2002).
What did Delamore ask?
Only six questions!
|1||At what time on the 6th April 1985 were the police notified of a gunshot wound?|
And at what time on the 6th April 1985 were the family of Mr Macrae notified about his situation?
I see that there is a date (7th April 1985) for the photos of the gun in the request. Could I please also get a time on when these were taken?
Following on from this, could I also please get the time/date of when the photographs of the car in the request were taken?
Could I also get the time of when the car was removed from the locus on the 7th April 1985?
On what date/time was the post-mortem conducted?
We don’t have that information yet but Police Scotland have been given until 4 August to provide it to Delamore,
The Commissioner therefore requires Police Scotland to disclose all of the withheld information to Mr Delamore by 4 August 2015.
I have emailed Police Scotland to find out when and where I will be able to access the information and I will write about this as soon as I am able.
The victory is not so much about the information to be made public but rather it is the reasons the Information Commissioner has given for ordering release which open the door to yet more requests.
BUT I must caution that release is dependent on the particular information requested. Other cases may fall at the hurdles which Delamore cleared.
I apologise if you know this already but let me outline briefly how FOI works. All information held by public bodies is available to the public unless it falls into specific categories which are deemed to be exempt from release. All is not lost if information is exempt because, although some categories are ‘absolute’ (i.e the information CANNOT be released), others are ‘qualified’ which means that a public interest test must be applied. If it is in the public interest that the information be released then it is released.
In Delamore’s appeal, the Information Commissioner concluded, for one of the exemptions claimed by Police Scotland, that the public interest lay in allowing release.
Commissioner’s considerations on Section 34(1)(b) of FOISA (Investigations by Scottish public authorities and proceedings arising out of such investigations)
31. The Commissioner acknowledges that when individuals provide information to Police Scotland to assist with any investigation (criminal or otherwise) they have an expectation that the information they provide will be held in confidence and will be used only for the purposes of a police investigation. The Commissioner notes that Police Scotland are concerned that if witness statements (or parts of witness statements) are disclosed in this case, this may reduce the public’s willingness to come forward in the future and assist Police Scotland with their investigations.
32. Police Scotland have provided evidence to show that the information requested by Mr Delamore is contained within witness statements. However, in this case, it is clear that Mr Delamore has not asked for any witness statements; he is merely asking for specific facts from Police Scotland’s investigation into the circumstances of Mr Macrae’s death. For example, Mr Delamore asked for the time a photograph of a gun was taken, the date and time that a post-mortem took place, and the time that police were notified of a gunshot wound. The Commissioner acknowledges that these facts are contained within witness statements, but she does not accept that their disclosure, in isolation from the context provided by the rest of the statement, would cause the type of harm cited by Police Scotland.
33. The Commissioner does not accept that disclosure of the requested information would have any impact on the public’s willingness to assist the police with future investigations. The Commissioner considers that none of the witnesses providing the statements containing the requested information could be identified from disclosure of the factual information Mr Delamore has requested. The information does not represent anyone’s views or recollections. Overall, the Commissioner is not persuaded that disclosure of the requested information in this case would dissuade anyone from co-operating with Police Scotland in any future incident.
34. The Commissioner agrees that “public interest” does not mean “of interest to the public” but “in the interest of the public”. However, in some circumstances it may be in the public interest to disclose information in which the public is interested: if, for example, disclosure would serve the general public interest that information is accessible, and therefore enhance scrutiny of decision-making processes and improve accountability.
35. The Commissioner is aware that the death of Mr Macrae has been subject to continuing speculation over the last 30 years and it is undoubtedly of interest to the public. Since his death, there has been a multitude of news stories raising questions over the official verdict of suicide. The investigation into Mr Macrae’s death was reviewed by the Crown Office in 2010/2011, and there is currently a public petition requesting a Fatal Accident Inquiry into his death, which has now gathered more than 10,000 signatures. The Commissioner notes that there has been a significant level of public distrust regarding the original investigation into the death of Mr Macrae. She takes the view that disclosure of additional factual information about the case could be in the public interest, by helping to establish the known facts and, in doing
so, perhaps help dispel public distrust.
36. On balance, the Commissioner finds that the public interest in maintaining the exemption in section 34(1)(b) of FOISA is not outweighed by the public interest in disclosure of the withheld information. Accordingly, the Commissioner requires Police Scotland to disclose to Mr Delamore all of the information falling within the scope of parts 1, 2, 4 and 5 of his request.
37. In this case, the information is factual and concise, and can be extracted easily from the documents. That being the case, the Commissioner considers it would be acceptable for Police Scotland to extract the information and summarise it in a single, separate, document, if they so wished. But Police Scotland must ensure that it is clear what information relates to which part of Mr Delamore’s information request.
Police Scotland also claimed that the date and time of Macrae’s post-mortem was exempt under section 39 of FOISA. The Commissioner judged that the information requested was not exempt because the necessary condition was not demonstrated (i.e. release of information “would, or would be likely to, endanger the physical or mental health or the safety of an individual” [FOISA 2002]). Because she so ruled there was no need to apply the public interest test.
The Commissioner’s reasoning was as follows.
Commissioner’s conclusions on section 39(1) of FOISA
45. The Commissioner has no doubt that the loss of Mr Macrae must have caused (and will continue to cause) mental anguish and distress to Mr Macrae’s family. She accepts that any press coverage about his death, or the investigation into his death, will only serve to remind the Macrae family of the loss they have suffered, thus adding to their stress and anguish. However, based on the submissions provided by Police Scotland, it is clear that media interest surrounding Mr Macrae’s death has never waned and recurs annually. Given that Police Scotland does not disclose new information about the case on a yearly basis, this cycle of media attention indicates to the Commissioner that media interest is not dependent on the emergence of new factual information, but rather it thrives on the emergence or re-emergence of theories and speculation.
46. While the Commissioner does not seek to underestimate the distress caused to a mourning family by media intrusion, she finds that Police Scotland have provided no evidence to suggest that withholding the requested information would, in any way, prevent this ongoing media attention, or that this media attention is endangering the mental health of members of Mr Macrae’s family. The Macrae family have endured repeated speculation about Mr Macrae’s death since it was first reported, and sadly, despite their own requests for those interested parties to accept the official version of events, it is likely that they will continue to endure such speculation, regardless of whether information is disclosed in this case or not.
47. The Commissioner does not consider that withholding the time and date of the post-mortem, would, in any way, lessen the media interest in Mr Macrae’s death, or that disclosing it is likely to endanger the mental health of anyone associated with Mr Macrae. In light of this, the Commissioner finds that the exemption in section 39(1) of FOISA does not apply to the information withheld under part 6 of Mr Delamore’s request.
48. Having concluded that the exemption was wrongly applied, the Commissioner is not required to consider the public interest test in relation to disclosing or withholding this information. She requires Police Scotland to disclose the information to Mr Delamore.
I am particularly interested in this decision and the reasoning because I have an on-going FOI request with the Crown Office who applied both section 34 and 39 – and others - to all my questions bar one.
Until recently, I knew nothing of FOISA but that position changed in April when I emailed a list of 36 questions to the Crown Office. They had the information and so I asked them. I hadn’t thought of Freedom of Information until the Crown Office got back to me saying that they treated my email as such and then refused to answer 35 of my 36 questions.
On Friday, 17 July, I asked the Crown Office to carry out an internal review of their response by considering again only 7 of my original 36 questions.
Oh, how I wished I’d known about the Delamore decision. I ‘sweated blood’ trying to make my case and Delamore was waiting for me. I knew Delamore had appealed to the Commission but I didn’t know the Commissioner had ruled on 19 June. I had checked the Commissioner’s website on 20 June but it hadn’t been updated. So close!
Hopefully, the Crown Office view will have changed in the light of Delamore’s case. If not, I’ll head straight to an appeal to the Commissioner.
Probably best that I wait until my case has moved on a bit. The Crown Office has 20 days to reply and so I should have heard by 14 August.
I’ll keep you posted.