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Round-up iconDecisions Round-up: 6 to 10 April 2015

 

We published eight decisions between 6 and 10 April - details, links and learning points below.

During March, we also resolved seven cases informally, settling them without the need for a decision. Learning points from these cases are included below.

In March, the Court of Session also issued its judgment in an appeal. Only a very small proportion of our decisions are appealed to the Court of Session, but we thought it might be helpful to start including information about any judgments in our round-ups. As you'll see, we'd like to know if this is the sort of thing you'd like us to include.

Key messages:

  • Don't leave it until the investigation to carry out proper searches

It's really important to carry out thorough searches so you don't overlook any information falling within the scope of the request. In Decisions 039/2015 and 046/2015 the authorities located additional information during our investigation. This information should either have been found when they responded to the initial request or the request for review. Carrying out proper searches at the right time means cases are less likely to be appealed to the Commissioner. Module 2 of our self-assessment toolkit allows authorities to test the effectiveness of the searches they carry out.

  • Disclose information that isn't exempt

Sometimes, particularly when information is only found during an investigation, authorities don't apply exemptions to the information, but still don't disclose it. This happened in Decision 039/2015. If information is withheld, but exemptions haven't been applied, we'll order the authority to disclose it.

  • Think about the requester when interpreting a request

When interpreting a request, you sometimes need to think about the person who is asking the question. An expert in a particular field might be able to draft their information request precisely and accurately, when most people might not have the same level of understanding. We looked at this in Decision 043/2015.

  • Advice and assistance - helping requesters to locate information that is otherwise accessible

Information is exempt from disclosure if the requester can reasonably obtain it other than by requesting it under the FOI Act (section 25). Don't forget your duty to advise and assist when applying this exemption. In Decision 044/2015, the authority gave the requester a link to the information, but didn't give him any advice on how to use the link so that he could find the information he wanted.

Decisions issued:

Mr Hutcheon asked Police Scotland about a Stop and Search event held in Fife. Police Scotland disclosed some information, but withheld other information under the exemptions relating to personal data and the effective conduct of public affairs. Police Scotland located additional information during the investigation, but did not apply any exemptions to that information. We found that Police Scotland were entitled to withhold some personal data, but ordered it to disclose other information. We also found that Police Scotland had failed to disclose information to which it had not applied any exemptions.

Mr X asked the SPS about a tender it had conducted to identify a suitably qualified person to carry out a specialist assessment. The SPS withheld some information on the basis that it was personal data and disclosure would breach the data protection principles. We disagreed that all of the information was personal data and ordered the SPS to disclose the information that wasn't. We were also satisfied that the SPS didn't hold all of the information Mr X had asked for.

Mr MacKinnon asked Education Scotland for a note of a telephone call and for comments about a school inspection report. Education Scotland withheld the information. We accepted that the telephone note could be withheld, but ordered Education Scotland to disclose the comments about the school inspection report.

This case involved a request to the Ministers about work which had been done on the White Paper "Scotland's Future". Mr McNeilage wanted to know who had compiled the White Paper (civil servants, SNP employees, etc.), how much time they had spent doing the work and the costs involved. The Ministers disclosed some information to Mr McNeilage. During the investigation, we looked at how the Ministers had interpreted Mr McNeilage's request and concluded that the Ministers had interpreted the request too narrowly. We also concluded that, under their duty to provide advice and assistance, the Ministers should have explained the role of special advisers to Mr McNeilage.

Mr Soutar wanted to know how many ombudsman, tribunal and court cases had found against the Council and what disciplinary action the Council had taken as a result. The Council disclosed some information, but withheld other information on the basis that it was otherwise available and therefore exempt from disclosure. It also told Mr Soutar (applying section 12(1) of the FOI Act) that it would cost too much to answer parts of his request. We found that the Council should have given Mr Soutar more advice on how to locate the information which was otherwise available. Otherwise, we were satisfied with the way the Council had responded to Mr Soutar's request.

Mr A asked the SPS for a copy of notes written during a hearing to consider a complaint made by him. The SPS told Mr A that the information was his own personal data and that he should make a subject access request for it under the DPA as it was exempt from disclosure under the FOI Act. We agreed.

Mr Mackay asked the Council about searches it had carried when responding to previous requests he had made to the Council. The Council initially told Mr Mackay that it did not hold the information. However, during the investigation, the Council told the Commissioner that it did hold the information and disclosed a redacted version of the information to Mr Mackay. In the decision, the Commissioner commented that she was disappointed by the Council's handling of the request, particularly as the Council's FOI practice had been assessed in 2010.

On 3 April 2014, Mr D asked the SPS about a regime review for a prison hall. The SPS provided some information, confirming on review that it did not hold any further information. We were satisfied that the SPS had provided Mr D with all of the information it held.

Cases resolved informally:

In some cases, where it is appropriate, we will work to resolve cases without the need for a formal decision. We resolved seven cases in March. Here are the main reasons these cases were resolved:

  • The requesters appealed to us because the authorities had failed to carry out reviews

In three cases the requesters had appealed to us because the authorities failed to carry out a review. In one case, the authority offered to carry out a review without the need for a decision and the requester was happy to withdraw his appeal on that basis. In the other cases, the authorities carried out a late review after the appeals were made to us. In both cases, the requesters were unhappy with the outcome of the review. They withdrew their initial appeals to us (which focussed only on the failure to respond to their review requests) and submitted new appeals which would let us look at the outcome of the reviews.

  • The requester took our advice on charging

In one case, the requester had appealed to us because an authority wanted to charge him for responding to a request under the EIRs. We told the requester that the authority was allowed to make a charge under the EIRs and suggested a number of ways he could take his case forward. In another case, responded to under the FOI Act, we told the requester it was likely we'd agree that the authority didn't have to respond to the request because it would cost too much to do so. This led to the authority giving the requester help to narrow down the request.

  • We told the authority we thought the information should be disclosed

Here, we looked at the information the authority had withheld and why the authority had withheld it. We told the authority we didn't think disclosing the information would cause any harm, particularly given the age of the information. The authority disclosed the information with personal data redacted. The requester was happy with this.

  • We were able to clarify what information had - and hadn't - been provided

The requester appealed to us as he was unhappy that the authority hadn't given him information. The authority thought it had disclosed the information to the requester and apologised for the oversight.

  • We told the requester that we were likely to agree with the authority that the information was exempt from disclosure

The requester asked for copies of witness statements. Early on in the investigation, we told her it was likely that we would find that the statements were exempt from disclosure. We suggested that she looked at some previous decisions which dealt with similar cases. This led to the requester withdrawing her application.

Court of Session judgment

Appeals against the Commissioner's decisions can be made to the Court of Session. William Beggs asked the Scottish Prison Service for a copy of the notes from an Internal Complaints Committee. The SPS told Mr Beggs that the information was his own personal data. This meant it was exempt from disclosure under the FOI Act (section 38(1)(a)). The SPS also suggested that Mr Beggs make a subject access request (SAR) for the notes under the DPA. Mr Beggs made a SAR and was given the information he had asked for.

However, Mr Beggs was unhappy with the SPS response and appealed to the Commissioner. This led to Decision 095/2014. During the investigation, the SPS withdrew its reliance on section 38(1)(a) and instead applied section 25 (information otherwise accessible). Given that Mr Beggs had been given the information by the SPS, we were satisfied that it was exempt from disclosure under section 25.

Mr Beggs appealed our decision to the Court of Session and the judgment was issued on 3 March. Mr Beggs argued that, because our decision hadn't made a formal finding on whether the information was his personal data, we had erred in law. He also argued that we had breached natural justice because we had not sought his submissions on section 25. The Court of Session disagreed and upheld our decision.

This is the first time we've included Court of Session judgments in our round-up. Did you find this useful? Contact us to let us know what you think.

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