Ken wrote:
>When we receive an FOI request we decide if the information is available
to the public or not.
That is the correct approach. My only point (made in consideration of the
Hansard report referred to in an earlier posting)was that the identity of
an applicant can be taken into consideration if an obvious pseudonym is
used and the Commissioner's guidance states that.
>It is quite clear from the Act and Guidance that the name and address are
>for the purpose of communicating the information and for no other stated
>purpose. FOIA Section 8(b).
What the Act actually says is a (valid) request is one which
"states the name of the applicant and an address for correspondence"
The word THE and the conjunctive AND may be significant. If the provision
had said a (valid) request is one which 'provides/states a name and an
address for correspondence' then you would be absolutely right. But it
doesn't and there is less clarity than you would have us believe.
If you are right then there would be no need for the Commissioner to state
in his guidance that "if you send your request by email, you must give
your name in the body of the email to fulfil the requirement that the name
of the applicant is given." In other words the provision of a name seems
to do more than just facilitate correspondence.
The provision in the Act as it stands is open to interpretation and
provides for the possibility of a request being denied if a false identity
is used. You may disagree but the point is made by both the UK and
Scottish Commissioner and has also been made by John Wadham (former
Director of Liberty)in relation to the Father Cristmas example. Of course
the recipient authority would have to know that a false identity is being
used.
>In England individuals do not as yet have an official identity. We can
>and do call ourselves what we want and for now this is perfectly legal.
>So if I choose to call myself Horatio Nelson today, that is my name
>today. We may not like this but until we have an official identity (and
>card) no doubt we are who we say we are.
I'm not certain that that is correct. At present you may become habitually
known by another name but unless you change it by deed poll for legal
purposes your name will remain that which was registered on or shortly
after birth. In certain circumstances giving or using a false identity is
an offence. Also if you call yourself Nelson today and some other name
tomorrow then certainty is lost and in those circumstances I would be
absolutely justified in seeking evidence that your legal identity was
indeed Horatio Nelson.
>the Scottish Information Commissioner is wrong if he says anything else
The Scottish Commissioner changed his guidance on how public authorities
should deal with requests made under a pseudonym after receiving legal
advice on the matter. The updated guidance makes it clear that for an
application to be valid, the actual name of the applicant must be used.
The Commissioner will not investigate cases where a pseudonym has been
used. His position is now consistent with the approach taken by the UK
Commissioner. In this area I don't believe Scots Law is any different
from English Law.
Kevin
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