The Scottish Information Commissioner (“the Commissioner”) recently decided that the Office of the Scottish Charity Regulator (“OSCR”) had ‘generally’ complied with the Freedom of Information (Scotland) Act 2002 (“FOISA”) when withholding information about a charity that was the subject of an ongoing inquiry.
A request had been made to OSCR, under FOISA, to disclose:
- a copy of the charity’s accounts;
- a copy of its application to become a charity;
- a copy of the charity’s constitution;
- any complaints made about the charity, including the number, date, nature and detail of complaint; and
- copies of all communication between the charity and OSCR in relation to the complaints.
OSCR provided information on points (1)-(3), withholding information relating to (4) and (5) by relying on the exemption that disclosure would prejudice:
- OSCR’s effective conduct of public affairs;
- the exercise of OSCR’s functions to protect a charity against misconduct or mismanagement (whether by the trustees or other persons); and
- the exercise of OSCR’s functions to protect a charity from loss or mismanagement.
The information requested related to an ongoing inquiry that OSCR was conducting into the charity and the regulator considered that disclosure of information before the inquiry’s conclusion would be damaging to the charity, its trustees and their reputations.
The Commissioner’s view was that OSCR was correct to withhold the majority of the information on the basis that disclosure would substantially prejudice the functions above. The Commissioner also found that the public interest in maintaining the exemption outweighed disclosure.
The Commissioner did not accept, however, that OSCR could rely on this exemption to withhold more general information on the number of complaints and the dates on which they were made. OSCR has now been required to disclose the number and dates of complaints made in relation to the charity in question.
This should provide charities facing an inquiry, and OSCR itself, with some clarity on the information that may be placed into the public domain in respect of a live statutory information request. That said, the Commissioner highlighted that OSCR, and public authorities more widely, must treat each request on a case-by-case basis, and public authorities should not take this decision to mean all information of this nature can be withheld.
If you have any questions on this case, inquiries conducted by OCSR, or statutory information requests, please feel free to get in touch.
Written by
Emma Maxwell
Director
Third Sector & Charity
Emma regularly provides advice to a range of public sector clients including a large number of local authorities, as well as housing associations.
Emma Manson
Senior Solicitor
Third Sector & Charity
Emma is a Senior Solicitor in our Glasgow office.
Harry Grieve
Trainee Solicitor
Harry is a trainee solicitor at Burness Paull.
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