EXAMPLES OF ADVICE GIVEN TO APPLICANTS

-----Original Message-----

From: Simin Abrahams

Sent: 14 November 2005 10:38

To: 'a bee'

Subject: RE: application to the Scottish Information Commissioner

Hi

I'm afraid to have say that your application to us is invalid and we're

unable to continue with the investigation. This remains the case even if

you provide us your real identity at this stage. The legal advice we

have received confirms that an applicant should have used his/her real

identity from the beginning when an initial application for information

is made. Without a real identity and particularly when an applicant

changes their name halfway through the process, it may not be possible

to enforce a decision. So I suggest that, if you wish to pursue this,

you make a fresh application to the university using your real name or

alternatively get a friend or relative to make an application.

I am sorry about this and there will be a satisfactory outcome for you.

Regards,

Simin Abrahams

Freedom of Information Officer

------------------------------------------------------------------------

--

The Office of the Scottish Information Commissioner

Kinburn Castle, Doubledykes Road,

St Andrews, KY16 9DS

Tel: 01334 464610

Fax: 01334 464611

-----Original Message-----

From: Margaret Keyse

Sent: 24 October 2005 16:49

To: [redacted]

Cc: Simin Abrahams

Subject: FOI - ST ANDREWS UNIVERSITY

Dear Foo Moo

I refer to the email which I sent you at the end of September and to your subsequent response. I have now had an opportunity to discuss this case with Kevin Dunion, Scottish Information Commissioner.

As you are aware, during the course of this investigation, it became clear that you used a pseudonym both in making your original freedom of information request to St Andrews University and in your application to the Commissioner. The Commissioner had previously taken the view that a request or application made using a pseudonym would be valid. However, towards the end of the investigation, we began to doubt whether we could enforce such a decision in the Court of Session and we sought legal advice on the matter.

The advice we received was that a request or an application made using a pseudonym is invalid. Section 8 of the Freedom of Information (Scotland) Act 2002 (which sets out the criteria for a valid request) and section 47 (which sets out the criteria for a valid application to the Commissioner) state that, amongst other things, an application must state the name of the applicant and an address for correspondence. The advice given to the Commissioner is that this means that it must be the actual name of the applicant and not a pseudonym. The Commissioner has accepted this legal advice. Consequently, I must advise you that your application to the Commissioner is invalid. This means that the Commissioner does not have the power to carry out an investigation or to issue a decision notice.

I appreciate that this will be frustrating for you. As you will appreciate, this is the first time that the Commissioner has dealt with this situation and it was important to establish the legal position.

I will therefore now write to St Andrews University to advise them that your application to the Commissioner is deemed to be invalid and that no decision will be issued.

If you still want to access the information, I think you have two main options:

1. make a new request to the University using your real name or

2. ask a friend or relative to make a new request to the University.

The guidance on the Commissioner's website will be amended to reflect his position on the use of pseudonyms by the end of the week.

I am very sorry for any difficulties that this has caused you.

Regards,

Margaret Keyse

Head of Investigations

--------------------------------------------------------

The Office of the Scottish Information Commissioner

Kinburn Castle, Doubledykes Road

St Andrews, KY16 9DS

Tel: 01334 464610

Fax: 01334 464611

-----Original Message-----

From: Simin Abrahams

Sent: 15 December 2005 11:27

To: [redacted]

Subject: application to the Scottish Information Commissioner

Dear Ma Baker,

Our Ref. 200501686,

Public authority: South Lanarkshire Council

Following my email of 12 December, I am writing to advise that the Commissioner finds your application invalid and that he is unable to investigate your complaint or to issue a formal decision notice.

During the course of this investigation, it became clear that you used a pseudonym both in making your original freedom of information request to South Lanarkshire Council and in your application to the Commissioner. The Commissioner had previously taken the view that a request or application made using a pseudonym would be valid. However, towards the end of the investigation, we began to doubt whether we could enforce such a decision in the Court of Session and we sought legal advice on the matter.

The advice we received was that a request or an application made using a pseudonym is invalid. Section 8 of the Freedom of Information (Scotland) Act 2002 (which sets out the criteria for a valid request) and section 47 (which sets out the criteria for a valid application to the Commissioner) state that, amongst other things, an application must state the name of the applicant and an address for correspondence. The advice given to the Commissioner is that this means that it must be the actual name of the applicant and not a pseudonym. The Commissioner has accepted this legal advice. Consequently, I must advise you that your application to the Commissioner is invalid. This means that the Commissioner does not have the power to carry out an investigation or to issue a decision notice.

I appreciate that this will be frustrating for you. As you will appreciate, this is the first few similar cases which the Commissioner has dealt with and it was important to establish the legal position.

I will therefore now written to South Lanarkshire Council to advise them that your application to the Commissioner is deemed to be invalid and that no decision will be issued.

If you still want to access the information, I think you have two main options:

1. make a new request to the Council using your real name or

2. ask a friend or relative to make a new request to the Council.

The guidance on the Commissioner's website has been amended to reflect his position on the use of pseudonyms.

I am very sorry for any difficulties that this has caused you.

Regards,

Simin Abrahams

Freedom of Information Officer

--------------------------------------------------------------------------

The Office of the Scottish Information Commissioner

Kinburn Castle, Doubledykes Road,

St Andrews, KY16 9DS

Tel: 01334 464610

Fax: 01334 464611

Dear [redacted]

Application for Decision of Scottish Information Commissioner

Public Authority: SportScotland

Thank you for your letter of 10 March, clarifying that your information request to sportscotland was made under a pseudonym rather than your own name.

Unfortunately, this means that the Commissioner is unable to investigate your case. We have received legal advice that if an applicant has used a pseudonym, the Commissioner would be unable to take legal enforcement action against the public authority if it did not comply with his decision on the matter.

I'm afraid this means that, in terms of section 47 of the Freedom of Information (Scotland) Act 2002, your application is not valid and the Commissioner does not have the power to carry out an investigation into your case.

I appreciate that this must be a frustrating outcome, and that you may have had good reasons for not wishing to disclose your identity to sportscotland. If you want to pursue this matter further, perhaps you could consider whether someone else could make the same information request to sportscotland, using their own name.

I am sorry we cannot accept your current application to the Commissioner. If you would like to discuss anything in this letter, please phone me on 01334 464628.

Yours sincerely

Alison Davies

Freedom of Information Officer