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ADVICE NOTE FOR THE SCOTTISH information commissioner

freedom of information (scotland) act 2002

Advice Note on requests for information by solicitors

Introduction and Summary

We have been asked by Margaret Keyse, Head of Investigations at the Office of the Scottish Information Commissioner (the Commissioner) to consider how information requests from solicitors should be treated by the Commissioner. Our e-mail instructions from Ms Keyse dated 22 September 2005 refer to three different types of requests received by public authorities from solicitors, namely, those in which the solicitor involved:

names the client on whose behalf the request is being made;
states that he is acting on behalf of a client, but does not name that client;
makes no reference to acting on behalf of a client. In such cases the solicitor may be acting on behalf of a client or may be making a request on his own behalf.

In terms of section 49(8) of the Freedom of Information (Scotland) Act 2002 (“the Act”) decision notices must contain details about the right to appeal to the Court of Session and we have been asked for our advice regarding who actually has the right to appeal each of the scenarios described above.
This note considers whether the applicant's identity is required in terms of the Act. It concludes that in order to properly constitute a request in terms of the Act the applicant's identity should be disclosed and that a public authority would be entitled to refuse a request which did not disclose the identity of the applicant. It goes on to discuss with reference to the Act why this should be the position and argues that public authorities should be advised to inform the requesting solicitor that such a request is not a request in terms of the Act and should request the identity of the client from the solicitor. Further, the authority should advise that, if the solicitor is not willing to disclose his client's identity the solicitor should make the request himself. It then discusses, by reference to the law of agency, who has a right to sue under contract in the circumstances detailed at 1.1.1, 1.1.2 and 1.1.3 above. It concludes, distinguishing the law of agency, that where the client is not disclosed, in order for the Act to operate effectively, the solicitor should be the only party with a right of appeal. It then suggests the appropriate wording for decision notices.

Section 8(1)(b) of the Act

Section 8 (1) (b) provides:
“Any reference in this Act to “requesting information” is a reference to making a request which….(b) states the name of the applicant and an address for correspondence;”
It is therefore a requirement of the Act that a request states the name of the applicant. As Coppel notes with reference to the equivalent provision in the Freedom of Information Act 2000:
“In the House of Lords debate on this provision it was suggested by the Parliamentary Under-Secretary of State for the Home Office that s8(1)(b) of the Freedom of Information Act 2000 did not require an applicant to give his real name (Hansard, HL Vol.619, November 14, 2000, col.184). However, the requirement in s 8(1)(b) to give the name of the applicant rather than a name for the applicant suggests the contrary.”
This does not prevent an application being made on behalf of someone else. This situation was addressed in the House of Commons' Public Administration Committee's Third Report with reference to the equivalent provision of the 2000 Act:
“”States the name of the applicant and an address for correspondence”: applications cannot be anonymous. Will there be anything to prevent one person (or a company) applying on behalf of another?

There is nothing to stop one person applying on behalf of another, but, as applications are in the first instance “purpose blind”, there will be no difference between such an application and one on the applicant's own behalf.”

This therefore accords with the view that a solicitor can make a request on behalf of a named client. However, where the solicitor advises that a request is being made on behalf of a client, but does not name them, that request is effectively an anonymous request and as a result does not comply with s8(1)(b) of the Act. The authority would therefore be entitled to refuse to deal with the request.
Section 15 of the Act, however, provides that a public authority, “must, so far is it is reasonable to expect it to do so, provide advice and assistance to a person who proposes to make, or has made, a request for information.” As a result, if a public authority receives such a request in order to comply with the section 15 duty, the public authority should inform the solicitor that he has not made a request in terms of s8(1)(b) of the Act. The authority should advise that the solicitor can either make the request on behalf of a named client or make the request himself.
It may be advisable for the Commissioner to consider publishing guidance to applicants and public authorities on this issue. There is already guidance on the Commissioner's website (http://www.itspublicknowledge.info/yourrights/faqs/faqspas.htm) regarding a request from someone who has provided an obviously false name such as Mickey Mouse. It notes, with reference to section 8(1)(a) that a real name and postal address is not required by the Act and that all that the public authority needs is a means of reply to the request. It may be that this reference should be to section 8(1)(b) of the Act. In any event we consider that, for the Act to operate effectively and, in terms of section 8(1)(b), the name of the applicant and a means of reply are required. If an obviously false name has been provided, the name of the applicant has not been provided and the information has not been requested in terms of section 8(1)(b) of the Act.
Where a solicitor makes a request and makes no mention of a client, that request should be treated as having been made by the solicitor. The terminology used in the request should be examined to ascertain whether the request has been made by the solicitor as an individual or on behalf of the solicitor's firm.
Why it should be necessary to name the applicant ?

The guidance notes to section 8 of the Act state:

“The requirement to give a name and address is obviously necessary so that more details may be required from the applicant and, ultimately, any information and/or notices must be passed to the applicant. It also may be relevant to establishing whether the provisions relating to personal data at s.38 or repeated requests at s.14 apply.”

Aside from the vexatious requests point which is covered below and the section 38 exemption, there are other exemptions the application of which may potentially be affected by the identity of the applicant.
The section 25 exemption provides that “information which the applicant can reasonably obtain” other than by an FOI request is absolutely exempt. As the Commissioner's briefing note on this exemption states, the applicability of this exemption depends on the applicant's personal circumstances. For example, if the applicant had a visual impairment then information accessible to the public at large may not be accessible to that particular applicant. As a result, the applicability of this exemption may not require the name of the applicant, but does depend on the applicant's personal circumstances.
The section 26 exemption provides that information is absolutely exempt if its release is prohibited by statute. Certain statutes provide that information can only be released for specific purposes. In order for the public authority to determine whether or not the information can be released in these circumstances the identity of the applicant may be a factor.
The section 38 exemption provides that information is exempt where the applicant is the data subject. Therefore, without knowing the identity of the applicant, the public authority cannot ascertain whether or not this exemption is applicable.
Section 14 of the Act provides that an authority is not obliged to comply with repeated or vexatious requests. In order to determine whether a request is repeated or vexatious the public authority will require the identity of the applicant. The guidance notes to section 14 of the Act refer to a case brought by Mr ABW (case 99151) which was decided by the Irish Commissioner. In this case the Irish Commissioner determined that:

“Requests made by the same person in or around the same time as part of a series of requests dealing with the same topic may sometimes (but not always) be treated as frivolous or vexatious….”

In order to determine whether a request has been made by the same person in or around the same time the public authority will require the identity of the applicant.

The identity of the applicant may also be relevant to a public authority when applying the public interest test. As Coppel notes, “Case law in most comparative jurisdictions recognises that the public interest in disclosure embraces the right of an individual to have disclosed documents that relate to him or that may affect his interests.” As Coppel goes on to note, the section 38 exemption will apply to any personal information, however other information, although not personal, may be of particular significance to the applicant. Coppel refers to the Australian case Burns v Australian National University (No 1) which concerned an applicant who requested information relating to an institution with which he was associated.
Agency

The solicitor/client relationship is a relationship of agency with certain special features. As a result the law of agency will apply to contracts entered into by solicitors on behalf of clients.
“If A contracts as an agent for a disclosed principal, A cannot competently sue or be sued with reference to the contract.” As a result, if as at 1.1.1 the solicitor advised that he was acting on behalf of a named client, in relation to a contract, the client would be the only person who could sue or be sued. This supports the view that a 1.1.1 request should be treated as having been made by the client.
However, “The general rule where a person enters into a contract for a principal who is undisclosed is that the principal may come forward and take the benefit of the contract, or be made liable under it at the suit of the other contracting party, and the rule in general obtains, not only where the agent contracts nominally as such, but also where he contracts without reference to agency at all, provided always that the person who claims, or is alleged, to be the undisclosed principal can bear that character consistently with the terms of the contract.”
Therefore, if 1.1.2, where the solicitor advises that he is acting for a client, but doesn't name them, and 1.1.3, where the solicitor does not mention a client, above related to a contract the client would be entitled to come forward and take the benefit of that contract. However, notwithstanding this common law position in relation to contract, section 8(1)(b) of the Act clearly provides that a request must state the name of the applicant and that if that name has not been provided then information has not been requested in terms of the Act.
As a result we consider that, whilst the law of agency provides some support, to apply its principles to the Act would not be in accordance with the Act and would mean that certain provisions of the Act were unworkable (3 above).
Section 49(8)

As Ms Keyse noted in her instructing e-mail, section 49(8) of the Act obliges the Commissioner to include the particulars of the right to appeal in a decision notice. Currently this is stated in the following terms, “should either [the public authority] or [the applicant] wish to appeal….”. This wording should contain the name of the solicitor's client only.
Where the request has been made by a solicitor on behalf of an un-named client the wording should be, “should either [the public authority], or [the solicitor or solicitor's firm] wish to appeal….”. This is subject to the advice given at 2.8 above, that the authority should have advised the solicitor that information requested in this manner does not constitute a request and, as a result some clarification should have been obtained from the solicitor.
Where no client has been mentioned the wording should again be, “should either [the public authority] or [the solicitor or solicitor's firm] wish to appeal….”.
As stated above the underlying client may, arguably, have a right to appeal, but the Commissioner and the public authority are entitled to treat the solicitor as the applicant and in these circumstances should not accept that an un-named client has a right of appeal.

Brodies LLP

7 October 2005

Ref: IJR.CMO.SCO268.12

Philip Coppel, Information Rights 2004 note 16 on p.304

(Cm.4355), July 29, 1999, Annex 6, para 14 referred to in Coppel supra at p.305

Coppel, supra at p.408

(1984) 6 ALD 193

Craig v Blackater 1923 SC 472 at 486, per Lord Anderson, referred to in Walker, “The Law of Contracts and Related Obligations”, at p.453

Hill SS Co v Hugo Stinnes Ltd 1941 SC 324 at 441

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