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Freedom of InformationCommissioner issues first decisions ? "Valuable lessons to be learned"

News release: 12 June 2012

Rosemary Agnew issued three formal decisions today ? her first since becoming Scottish Information Commissioner in May this year. The decisions confirm that the new Commissioner continues to support some hard-won principles established by her predecessor, but also signal her commitment to providing positive learning opportunities for all of Scotland's public authorities.

In two decisions relating to City of Edinburgh Council, Mrs Agnew considered unrelated requests for information relating to repairs made to specific buildings ? both requests made during a Council investigation into potential wrongdoing in its Property Conservation Section. While the Council made similar arguments against disclosure under the Environmental Information Regulations in each case, the Commissioner ordered release in one case, but upheld the Council's decision to withhold the information in the other.

Mrs Agnew said "These two decisions underline the importance of examining the impact of release of the specific information in question ? a principle well established in Scotland's FOI law. In one case, the information could lead to the identification of people under investigation but about whom no conclusions had been reached. Release of information could substantially prejudice a fair trial. In the other case, the information being requested was largely factual and would not have the same damaging effect."

In another decision, the Commissioner ordered Dundee City Council to release weather forecast information, challenging the Council's view that such information was prepared in contemplation of litigation.

The Commissioner continued "In the Dundee City Council decision, we challenged the Council's interpretation of legislation in a number of places, including: what comprises information; when that information is environmental; and when information has been prepared for the purpose of legal proceedings.

"One of my priorities is to help public authorities to become more efficient and effective in their FOI practice, by providing them with the tools they need to do the job. My decisions are a valuable resource for public authorities providing them with the knowledge and understanding they need to improve their own practices."

Ends

For further information contact the Commissioner's Media Team on 01334 464610, out of hours on 07976 511752, or email media@itspublicknowledge.info

Notes to Editors

The Decisions

Decision 094/2012 Mr Craig Beveridge and City of Edinburgh Council

Mr Craig Beveridge requested from the City of Edinburgh Council (the Council) information as to whether anyone who is being investigated or has been suspended in connection with investigations relating to statutory notice repairs had been involved in making decisions regarding the service of a statutory notice on a particular property. The Council responded by applying the exception in regulation 10(5)(b) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) on the basis that if the information was disclosed it would, or would be likely to, substantially prejudice the ability of the Council to conduct an inquiry of a criminal or disciplinary nature. Following a review, Mr Beveridge remained dissatisfied and applied to the Commissioner for a decision. Following an investigation, the Commissioner found that the Council had dealt with Mr Beveridge's request for information in accordance with the EIRs by withholding the requested information in terms of regulation 10(5)(b) of the EIRs.

Decision 093/2012 Mr Bruce Thompson and City of Edinburgh Council

Mr Bruce Thompson requested from the City of Edinburgh Council (the Council) information that had been withheld within two pieces of correspondence disclosed in response to a previous information request. The Council did not respond to this request within the required timescale. Following a review, in which the Council withheld the requested information under regulations 10(4)(e) and 10(5)(b) of the Environmental Information (Scotland) Regulations 2004 (EIRs), Mr Thompson remained dissatisfied and applied to the Commissioner for a decision. Following an investigation, the Commissioner found that the Council had failed to deal with Mr Thompson's request for information in accordance with the EIRs. She found that it incorrectly applied the exceptions in regulations 10(4)(e) and 10(5)(b) of the EIRs to the requested information, and so it breached regulation 5(1) by withholding that information. The Commissioner also found that the Council had failed to respond to Mr Thompson's request within the timescale required by regulation 5(2) of the EIRs. She required the Council to provide the withheld information to Mr Thompson.

Decision 092/2012 Kathleen Winter and Dundee City Council

Ms Winter requested from Dundee City Council (the Council) information relating to winter maintenance activities carried out at a specified location and weather forecasts during a specified period. The Council refused to disclose the information on the basis that it was exempt from disclosure under sections 33(1)(b) (Commercial interests and the economy) and 36(1) (Confidentiality) of the Freedom of Information (Scotland) Act 2002 (FOISA). Following a review, in which the Council withdrew its reliance on the exemption in section 33(1)(b), Ms Winter remained dissatisfied and applied to the Commissioner for a decision. The Commissioner took the view that the information identified was environmental information, and asked for the Council's comments. The Council indicated that, should the Commissioner consider the case under the Environmental Information (Scotland) Regulations 2004 (the EIRs), it wished to rely on the exception under regulation 10(5)(b) of the EIRs in withholding the information. The Commissioner found that the Council had failed to deal with the request in line with the EIRs. She required the Council to disclose the withheld information to Ms Winter.

About the Commissioner

About the Scottish Information Commissioner

The Scottish Information Commissioner is responsible for enforcing and promoting the Freedom of Information (Scotland) Act 2002 (FOISA), the Environmental Information (Scotland) Regulations 2004 (EIRS), and the INSPIRE (Scotland) Regulations 2009.  FOISA and the EIRs came into force on 1 January 2005, giving anyone, anywhere in the world, important rights to access the information held by more than 10,000 public authorities in Scotland. The Commissioner's duties are set out in FOISA.

In summary, the Scottish Information Commissioner:

  • investigates appeals made to her when people are dissatisfied with how a public authority dealt with a request for information
  • issues legally enforceable decisions in relation to these appeals
  • promotes good practice amongst public authorities and
  • provides the public and public authorities with information about their rights and obligations under FOI laws.

The current Scottish Information Commissioner is Rosemary Agnew. Rosemary took up office on 1 May 2012, for a fixed period of six years. Her predecessor, Kevin Dunion, held the post of Commissioner for nine years, and demitted office in February 2012.  View The Scottish Information Commissioner's biography.

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