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Filing cabinet with papers flying outDecisions Round-up: 19 to 23 August 2013

We published seven decisions this week.

 

Key messages:

  • Keep a clear record of what you disclose in response to information requests

It's important that you know what you have released in response to an information request. If the requester asks for a review, and an appeal to the Commissioner's office, you will need to know exactly what has been supplied, and what withheld. It is a much more efficient use of resources to keep a note of it at the time, than have to establish it retrospectively. As can be seen in Decision 172/2013, it can severely delay the Commissioner coming to a decision, which means an equivalent delay for the requester receiving information to which they are entitled.

  • Keep a record of searches you undertake for requested information

This learning point comes up regularly in Decisions Round-ups. Keeping a record of the searches you undertake, and the outcome of those searches, is vital if you are called upon to justify a conclusion that information is not held. If you cannot demonstrate the means by which you reached that conclusion, you may be called upon to repeat searches you have already undertaken. If, however, you can show that you have conducted robust searches, it is easier for the Commissioner to accept that you do not hold the information.

  • Ensure arguments for withholding information relate specifically to the information in question

Again, a regular issue in Decisions Round-up. The Commissioner accepts that general arguments in favour of applying an exemption are important as they provide useful context. However, you must also be able to demonstrate that the conditions of an exemption apply to the specific information in question. The starting point should always be the content of that information - does the exemption apply to it? If you cannot make the arguments in relation to the information you've been asked for, ask yourself whether the exemption really does apply.

  • Provide adequate submissions to support decisions to withhold information

It is your responsibility to justify any decision that you make about responding to a request. If you do not make proper submissions to the Commissioner during an investigation, she is likely to issue a decision based on the information available to her, and will not normally pursue additional submissions. In Decision 174/2013 she did so, because the interests of data subjects were at stake, but she won't always do so.   makes it clear what we expect of you during an investigation, including the standards of submissions required.  

  • Ensure your review process is robust

It is important that your review process is sufficiently robust and thorough to identify and put right any mistakes in the way a request was originally dealt with. In Decision 174/2013, the initial view that the request was invalid might have been questioned and corrected on review - it was only when our investigator pointed out that the Council did not have any difficulty identifying the information requested, that it finally agreed the request was valid.

  • Take care to protect personal information from inadvertent release

It is important to identify and take account of any personal data contained in information covered by a request, in order to ensure that rights of data subjects are protected as required by the Data Protection Act 1998.

  • The timing of a request can have an impact on the public interest arguments

The public interest in withholding information can reduce over time. It's important to take into consideration not only the specific content of information, but the timing of the request, when assessing the public interest. Decision 175/2013 provides an example - the balance of the public interest here was influenced by the timing of the request. Had Mr Gordon asked for the information while the evaluation of entries to the competition was still underway, this may have affected the weight given to the public interest in withholding the information.

  • Don't claim information is not held because you think it is incomplete

It doesn't follow that, just because you may think information is incomplete, old or inaccurate, that you do not hold it. In such circumstances, unless any exemptions or other relevant provisions apply, you should disclose the information. In doing so, you can provide any explanation or context which will help the requester understand your concerns about the limitations of the information.

  • Legal advice and the public interest

In Decision 177/2013, the Commissioner sets out some helpful detail on the treatment of public interest arguments in responding to requests for legal advice. The starting point will always be a strong in-built public interest in favour of withholding legal advice, as the protection of communications between lawyers and their clients is fundamental to the administration of justice. This doesn't means that legal advice can never be released - it is not an absolute exemption - but the public interest arguments for release must be strong. For example, disclosure may be appropriate where:

  • the requirement for disclosure is overwhelming
  • the privileged material discloses wrongdoing by/within an authority
  • the material discloses an apparently irresponsible and wilful disregard of advice
  • a large number of people are affected by the advice
  • the passage of time is so great that disclosure cannot cause harm.

 

Summary of decisions:

Mr Edwards asked the Ministers for information relating to extension of the operating lives of the Torness and Hunterston nuclear plants. Ministers extended the time to respond by 40 working days, claiming the information requested was complex and voluminous - but in the event took around 120 additional days to respond. Ministers withheld most of the information on the grounds that its release would inhibit free and frank discussion. The Commissioner found that, for much of the information, Ministers had failed to show how this was the case - most of it related to fact-checking or refining language, not policy discussion. The Commissioner also found that the requested information - some 40 pages - was neither complex nor voluminous, so the time extension was unjustified. She also noted that it took several attempts, including an information notice, to obtain confirmation of what information Ministers had actually provided to Mr Edwards - a failure caused by poor labelling which Ministers have assured will be rectified.

Gallaher Ltd asked for information relating to the "public health levy" and the earlier proposal for a "large retailers supplement". Ministers withheld the information under a number of exemptions, i.e. formulation of government policy, prejudice to international relations, legal advice. The Commissioner found that Ministers were entitled to withhold the information, with a few exceptions - but that they had failed to respond to Gallaher's request for review in time.

Mr Hunter asked the Council for information concerning pothole compensation, damage claims and appeals. The Council claimed that the request was invalid, as they would have to analyse documents and apply judgement in compiling information. It disclosed some information, but upheld its original position on review. When Mr Hunter appealed to us, the Council accepted the request was valid, but argued the information was excepted under the EIRs. On viewing the withheld information, the investigator pointed out that it contained personal information of staff and claimants, and invited the Council to say whether it should be disclosed. The Council made submissions relating to staff, but made no arguments in relation to claimants' personal data.

The Commissioner agreed that some information could be withheld on the grounds it was personal information, but ordered the rest to be disclosed. She expressed concern at the Council's inability to see that the request was valid until it was pointed out by the investigator. She also criticised the Council for not providing any arguments to support its application of exceptions until (in the interests of fairness) prompted to do so by the investigator.

Mr Gordon asked for the score cards used by the judges in the George Square design contest. The Council withheld them under the EIRs on the grounds that they were internal communications. They upheld this position on review, claiming it was in the public interest for judges to hold free and frank discussions about the merits of contestants in the competition. Mr Gordon, on the contrary, felt that the considerable public cost of the competition, coupled with the fact that the judges were professionals, undermined the Council's argument. The Commissioner accepted that there is a public interest in protecting the evaluation process at the time of the evaluation, but noted that Mr Gordon's request came after the announcement of the winning design. She ordered the Council to disclose the scorecards.

Mr Hepburn asked Education Scotland for information about the bandwidths available to Scottish schools, but Education Scotland claimed it did not hold the information. When this came to us on appeal, Education Scotland explained that it did hold information, but it was incomplete, varied in age, and was unlikely to be accurate. The Commissioner found that Education Scotland had not been entitled to notify Mr Hepburn that it did not hold the information, and ordered it to now respond to him on the basis that it did hold the information.

Mr Rules asked Ministers for all information they held in their central records, relating to a decision made by the Commissioner which ordered them to disclose information about their local income tax policy.[1] Ministers withheld the information, mostly on the grounds it was legal advice, which was privileged, and in some cases because its release would prejudice the conduct of public affairs. The Commissioner accepted that the legal advice should be withheld - there is a significant in-built public interest attached to legal professional privilege, and in this case, the public interest arguments for disclosure did not outweigh this. She also felt that the sensitivity of the information requested was such that Ministers had correctly concluded its release would prejudice the conduct of public affairs.

Mr Gordon asked Ministers for their submissions to the Law Officers for legal advice regarding an independent Scotland's position in the EU. Minister withheld the submissions, as they related to a request for the provision of advice by the Law Officers (a specific exemption under section 29(1)(c)). While the Commissioner accepted that there is a strong public interest in matters which will help the public make an informed choice at the forthcoming independence referendum, she recognised the strong public interest in maintaining the confidentiality of communications of legal advisers and their clients. She also noted that Ministers have committed to set out their position on EU membership in their forthcoming white paper. She upheld Minister's decision to withhold the information.


 


[1] Decision 025/2011 Mr Simon Johnson of the Daily Telegraph and the Scottish Ministers

 

 

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