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Filing cabinet with papers flying outDecisions Round-up: 10 to 14 September 2012

A round-up of the key learning points from the decisions published this week.

 

Key messages:

  • Remember the duty to advise and assist
    Public authorities have a duty to advise and assist those making information requests. If a requester specifically asks for assistance, authorities should be particularly careful to ensure they provide it. The duty applies in relation to both FOI requests and requests for environmental information. In one decision this week (Decision 153/2012), a requester asked for help in formulating an EIR request but, in this case, advice was not forthcoming.
  • There are limits to what is accessible under FOI
    If information isn't appropriate for release into the public domain, it won't normally be accessible through FOI. In Decision 150/2012, a requester sought access to personal records relating to his deceased relatives. While the requester argued that the failure to disclose the records would breach his human rights, we took the view that disclosure into the public domain would breach the human rights of other surviving relatives.
  • When is environmental information "in the course of completion"?
    The EIRs allow information to be withheld where that information is still in the course of completion. Remember that it is the specific information or document that must be in the course of completion, rather than e.g. any process or policy to which the information relates. In Decision 153/2012, we found that, while the project to which a request related was on-going, the documents in question were nevertheless "complete".
  • In requests involving personal data of employees, think carefully about seniority
    When considering requests for the personal data of public authority employees, the seniority of the individual in question is a key factor. Generally speaking, the more senior a person is, the more likely that information relating to their public duties can be released fairly. In Decision 151/2012 we considered a range of withheld personal data, finding that, while the authority had got it right in most cases, there was some additional information relating to senior staff that was appropriate for release.
  • When responding to requests, focus on the actual information sought
    When responding to an information request, ensure that the information provided actually responds to the request made.  In Decision 152/2012, the authority responded by providing a large volume of information on matters which broadly related to the request, but which did not clearly answer the specific requests made.
  • "Neither confirm nor deny" provisions should not be used lightly
    Section 18 of Scotland's FOI Act permits authorities to refuse to reveal whether information exists or is held in certain limited circumstances. These provisions require careful consideration, and should only be used when revealing the existence of information would be contrary to the public interest. In Decision 148/2012, the authority first applied section 18 in response to the requester's request for review, having previously confirmed that information was held in response to the initial request. The authority also failed to set out the reasons for the application of section 18 when asked to do so by my office.

Summary of decisions:

  • Decision 148/2012 - Mr Johnny Gailey and City of Edinburgh Council
    Mr Gailey requested correspondence relating to a site in Edinburgh. Following its review, the Council notified Mr Gailey that it would neither confirm or deny whether any information relating to the sale of site existed or was held. We concluded that the Council was not entitled to do this.

  • Decision 149/2012 - Mr Alex Morrice and City of Edinburgh Council
    This case concerned a request for information about statutory repair work at a specified property. The Council disclosed the information to Mr Morrice during our investigation. In the absence of any submissions to the contrary, we could not accept that the Council had been entitled to withhold any information in the first instance.

  • Decision 150/2012 - Mr M and South Lanarkshire Council
    Mr M requested social work and homecare records relating to his deceased parents. We agreed with the Council that the records were confidential. We also found, when considering Mr M's argument that non-disclosure would breach his human rights, that disclosure into the public domain would breach the human rights of others.
  • Decision 151/2012 - Bal-Na-Gask (Holdings) Ltd and Strathclyde Partnership for Transport (SPT)
    Bal-Na-Gask Ltd asked SPT for information it held about the company. Our decision found that the SPT did not hold some of the requested information, and had correctly withheld most of the remainder. We also found that some personal data covered by the request was appropriate for disclosure.
  • Decision 152/2012 - Dr DHS Reid and the Scottish Ministers
    Dr Reid asked for information about the process of being referred to an NHS consultant. Following receipt of information, Dr Reid felt that the response did not provide what he had asked for. We found that Ministers had, for the most part, complied with Dr Reid's request. The decision also discusses how the request might have more effectively been responded to in the first instance.
  • Decision 153/2012 - Mr Steven Vass of the Sunday Herald and the Scottish Ministers
    Mr Vass requested information about the scoring of 16 Tax Incremental Financing (TIF) proposals. During the investigation, the Commissioner advised that the request should have been dealt with under the EIRs. While we agreed that the information constituted internal communications, we nevertheless found that the public interest favoured its disclosure. We also found that the authority in this case had failed to provide appropriate advice and assistance, and had incorrectly applied the EIR exception relating to incomplete information.

  • Decision 154/2012 - Mr Steven Vass of the Sunday Herald and Scottish Future Trust
    This case deals with a similar request as to Decision 153/2012. As with that case, we found that the information was internal communications, but that the public interest favoured disclosure.

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