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Filing cabinet with papers flying outDecisions Round-up: 25 February to 1 March 2013

Eleven decisions were published on the Commissioner's website this week. 

 

Key messages:

  • Be careful when considering using the "neither confirm nor deny" provisions
    Section 18 of the FOI Act - the "neither confirm nor deny" provision, which permits authorities to refuse to reveal whether information is held where it would not be in the public interest to do so - should only be used in certain, limited circumstances. Think carefully before applying section 18. Is it appropriate in the circumstances of your case? If information is already in the public domain, for example, section 18 is less likely to be appropriate. (Decision 027/2013)

 

  • Ensure any FOI response is based on the actual information held
    FOI responses should relate only to the information held in relation to a specific request. If you don't hold the requested information, let the requester know at the earliest opportunity. In Decision 026/2013, an authority initially sought to apply exemptions to information, only to later reveal that it didn't actually hold it.

 

  • Respond in a timely fashion when a case is appealed
    If an authority doesn't make appropriate submissions to us within a reasonable time period, the Commissioner may - depending on the circumstances - decide to proceed with a decision rather than prolong the case through further correspondence. This occurred in relation to a technical decision issued this week. (Decision 024/2013).

 

  • Environmental information which is in active use is unlikely to fall within the "incomplete information" exception
    Regulation 10(4)(d) of the EIRs allows a request for environmental information to be refused where the information is "in the course of completion". For this exception to be applied correctly, the information must genuinely be in the course of completion. It should not be applied to information which is simply inaccurate, or which may change over time. In Decision 020/2013, the Commissioner concluded that information could not be considered to be incomplete because the data was in active use by the authority to inform decision-making processes.

 

  • While it can be helpful to provide additional unrecorded information alongside a response, ensure you properly explain this to the requester
    Providing additional unrecorded information can help requesters better understand the context of their request. If you do this, make sure that the requester is clear that this is what you've done. In Decision 022/2013, the authority didn't hold any recorded information which would answer the request but, in an attempt to be helpful, told the requester what staff remembered. However, failing to clarify that no recorded information was held contributed to the case being appealed to the Commissioner.

 

Summary of decisions:

  • Decision 017/2013 - The Global Alliance Against Industrial Aquaculture (GAAIA) and the Scottish Ministers
    GAAIA requested sea lice data held in relation to Scottish salmon farms. Some information was provided, while other information was withheld on the basis that release would harm the interests of the providers of the information. Following investigation, the Commissioner found that the Scottish Ministers' response was correct.

 

  • Decision 018/2013 - Mr Alex Simpson and South Lanarkshire Council
    The Commissioner concluded that the fees notice issued by the Council under the EIRs to Mr Simpson was reasonable and appropriate.

 

  • Decision 019/2013 - Mr R Graham Dick and Glasgow City Council
    The Council withheld some information relating to the positioning of parking signs, while also notifying Mr Dick that other information was not held. Following investigation, the Commissioner found that the Council did hold some of the information which the Council claimed was not held. All relevant information held was released to Mr Dick during the Commissioner's investigation.

 

  • Decision 020/2013 - Mr Daniel Henderson and Falkirk Council
    Mr Henderson requested environmental information relating to historical maps and potentially contaminated land sites. Various EIR exceptions were cited by the Council to support non-disclosure, including that some information was otherwise accessible, that release would harm the interests of the person providing it, that some information was not held and that one request was manifestly unreasonable. The decision finds that the Council was wrong to withhold the information from Mr Henderson. The relevant information was released to him during the Commissioner's investigation.

 

  • Decision 021/2013 - Mr Sutherland and the Scottish Criminal Cases Review Commission (SCCRC)
    The SCCRC withheld information held in relation to a Supreme Court ruling (the Cadder judgement) on the basis that release would harm the effective conduct of public affairs. One document was released to Mr Sutherland during the investigation, with the Commissioner concluding that the SCCRC had acted correctly in withholding the remainder.

 

  • Decision 022/2013 - Ms Laura Cregan and East Lothian Council
    Ms Cregan requested information relating to repairs of a property. Some information was provided, with the Council informing her that it did not hold the remainder. During our investigation it emerged that the information provided to Ms Cregan was not drawn from recorded information, but had instead come from staff recollection of events. Our decision concludes that the Council should have made this clear to Ms Cregan when responding to her initial request, informing her that no recorded information was held.

 

  • Decision 023/2013 - Paul Hutcheon and the Scottish Ministers
    A technical decision which finds that Ministers failed to reply to Mr Hutcheon's request or request for review within the 20 working day period. The decision requires Ministers to issue a response.

 

  • Decision 024/2013 - David Rule and the Scottish Ministers
    Another technical decision, this time finding that Ministers failed to respond to Mr Rule's request or request for review within appropriate timescales. Ministers also failed to provide submissions to the Commissioner within a reasonable period, resulting in the Commissioner issuing her decision without any submissions from the authority.

 

  • Decision 025/2013 - Councillor Brian McCabe and Falkirk Council
    Councillor McCabe requested information held on a council employee's mobile device. The Council disclosed all the information that it considered was covered by the request. The Commissioner agreed that all relevant information had been provided, while also finding that the Council failed to respond to Councillor McCabe's request within 20 working days.

 

  • Decision 026/2013 - Councillor Stuart Currie and East Lothian Council
    The Council initially responded to Councillor Currie's request for information on work done by council staff on political manifestos by applying the FOI exemption relating to future publication. It later changed its position, notifying Councillor Currie that release would harm the effective conduct of public affairs. During the Commissioner's investigation it became apparent that the Council didn't hold the requested information. Our decision finds that the Council should have informed Councillor Currie of this.

 

  • Decision 027/2013 - Ms R and the Chief Constable of Tayside Police
    Ms R wrote to Tayside Police for information about the outcome of a court case. Tayside Police initially applied section 18, refusing to confirm or deny whether any information was held. During the Commissioner's investigation, they decided to confirm to Ms R that they held the information, but claimed they were entitled to withhold it under the FOI exemption protecting an individual's personal data. The Commissioner's investigation concluded that Tayside Police were entitled to withhold the information on this basis.

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