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Filing cabinet with papers flying outDecisions Round-up: 20 to 24 May 2013

We published ten decisions this week.

Key messages:

  • Make sure your responses are clear

You can save time and effort by ensuring that the content of your notices are clear. In Decision 087/2013, the Council's correspondence wasn't clear enough about the extent of its search, which led the investigator to ask the Council to check its searches. If the correspondence had been clearer, it would have been evident that the relevant searches had already been undertaken.

  • What is "environmental" information?

The definition of environmental information may sometimes include information which is not obviously environmental at first glance. In Decision 088/2013, information about fire loading and sprinkler systems was "environmental" as it related to factors affecting the environment e.g. fire and water. The Commissioner's briefing "Definition of Environmental Information" provides useful guidance (link provided).

  • Ask for recorded information

Scotland's FOI Act gives you a right to recorded information. When asking for information, try and state your request in a way which refers to the recorded information you would like. If you ask for opinions or reasons, these may not be contained in recorded information, and might therefore not be covered by FOI. If you're not sure how to frame your request, the authority has a duty to help you with this.

  • Information about ongoing disciplinary hearings needs protection

It's important for members of staff undergoing disciplinary action that they are treated fairly and with dignity. It's also important that public authorities are able to carry out investigations independently and objectively. As a result, information about ongoing disciplinary proceedings will rarely be disclosed (see Decision 090/2013).

  • Ensure your logging systems are robust

Good logging and monitoring systems can prevent situations where requests are not properly logged when they are received. This exposes you to the risk that you will fail to meet statutory timescales and become the subject of an avoidable investigation by our office.

  • Don't wait until the case is with the Commissioner before carrying out proper searches

Public authorities need to carry out proper searches for information when a request is received, and not wait until the Commissioner gets involved. Decision 093/2013 was another example of a public authority locating additional information during the Commissioner's investigation. Detailed searches are much more likely to satisfy applicants - and save the time and resources involved in dealing with the Commissioner.

  • Information can be held by a third party on behalf of an authority

Both FOISA and the EIRs give a right, not only to information held by public authorities, but to information held by a third party on their behalf. Whether the information is held "on behalf of" the authority will depend on the capacity in which it is held. You should always give careful consideration to whether information you have been asked for, which is held by a third party, is held on your behalf.

  • The Commissioner may rule on what is held - not what should be held

Where an authority claims it does not hold information it has been asked for, the Commissioner's remit extends only to investigating whether the information is held. She cannot comment on whether the authority should have recorded any, or more, information.

Summary of decisions:

Mr Bova asked for communications concerning a proposed housing development. The Council didn't respond initially, but when Mr Bova asked for a review, they told him they didn't hold any of the information he was asking for. When Mr Bova appealed to us, our investigator asked the Council to check whether it had interpreted the request too narrowly - but when the Council provided evidence of the searches it had undertaken it was clear that it had interpreted the request correctly, and in fact no relevant information was held. The Council could have made this clearer to Mr Bova in the first place.

Mr X asked for information about fire loading standards in prison cells, and the capacity of the sprinkler system at Glenochil Prison. The SPS refused to provide the information, initially under FOI. When Mr X appealed, it refused it under the EIRs, claiming its release might harm the protection of the environment. When Mr X appealed, the SPS undertook additional searches at the request of our investigating team. The Commissioner found that the exception didn't apply, but by then the SPS had provided the information to Mr X.

Mr O asked for a range of information about funding for the Central Borders Citizens' Advice Bureau (CAB). Two of his requests were refused because the Council didn't believe they were valid requests for recorded information, but instead questions designed to open debate. When the case came to us on appeal, we found that one was a simple request asking "why" the CAB was awarded a contract. The Commissioner felt this was valid - it could reasonably be interpreted as a request for recorded information relating to reasons for a decision. Another question, "in what way did the council think public money would benefit this charity despite its well-known fiscal deficiencies" appeared to be designed to start a debate rather than extract information.

Mr Millar asked the Council for a wide range of information about a statutory repairs notice it had issued. The Council disclosed a lot of information to Mr Miller, but withheld information about the inspection of the property on the basis that disclosing it would cause substantial prejudice to ongoing disciplinary proceedings. (Regular readers of the update will be aware of the problems being faced by the Council in relation to statutory repairs notices.) The Commissioner agreed that most of the withheld information would substantially prejudice these proceedings and agreed that the Council had been entitled to withhold it.

Shortly after the death of Paul McBride QC, Mr Hutcheon asked the Ministers for information about Mr McBride's reappointment to the Scottish Legal Aid Board in 2010. Ministers disclosed some information, but also withheld some on the basis that disclosure would cause real harm to the appointment process. This harm would be caused by inhibiting officials from giving advice on sensitive matters and by inhibiting good quality candidates from coming forward. Mr Hutcheon argued that it was in the public interest to find out if Mr McBride's political views had been considered during the re-appointment process, but the Commissioner concluded that the public interest lay in ensuring that the appointment process functioned as well as possible.

Mr Urpeth's initial request for information, and subsequent request for review, went unanswered by the Comhairle. When Mr Urpeth appealed to us, the Comhairle apologised and explained that the failure was due to a breakdown in systems, which had since been addressed by the allocation of resources to update the system. This was an issue which had come to light during an assessment visit from the Commissioner's staff in May 2012, and was being addressed as part of an agreed action plan of improvements. The Comhairle went on to respond to Mr Urpeth.

As with Mr Millar's case, Mr Tulloch asked the Council for a wide range of information about a statutory repairs notice (it appears that a template information request was used in both cases). The Council initially withheld some information and told Mr Tulloch that it did not hold other information. During the investigation, the Council located some additional information, including some which was already in the public domain, and disclosed it to Mr Tulloch. By the end of the investigation, the Commissioner was satisfied that the Council had disclosed all of the information it held to Mr Tulloch.

  • Decision 094/2013 - Ms Maxine Campbell and East Dunbartonshire Council (the Council)

Ms Campbell asked for copies of risk assessments, policy documents and maintenance schedules relating to cold weather conditions and the spreading of salt/grit. The Council argued that it did not hold the information as it had contracted the maintenance to a third party. However, when Ms Campbell appealed to us, the Commissioner found that the contractor held the information on behalf of the Council, given the Council retained responsibility for maintenance under health and safety legislation.

Mr Rule did not receive a response to his request for information but, following the intervention of our office, Ministers responded to his request for review claiming that it would cost more than £600 to deal with his request. Ministers suggested ways in which Mr Rule could reduce the scope of his request to enable it to be dealt with under the £600 threshold. However Mr Rule appealed to us and the Commissioner found that Ministers had failed to comply with statutory timescales for responding. As Ministers had since responded to the request for review, they did not have to undertake any further action.

  • Decision 096/2013 - Robert Potter & Partners LLP and Dumfries and Galloway Council (the Council)

This firm of architects asked for information relating to two regeneration projects in Dumfries, specifically relating to procurement and tendering for those projects. The Council disclosed some information but claimed it held no further information. The firm appealed to us, claiming it was inconceivable that the Council did not hold further information relating to these tendering processes. After an investigation, the Commissioner was satisfied, given its limited role in the tendering, that the Council did not hold any further information.

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