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Filing cabinet with papers flying outDecisions Round-up: 26 to 30 August 2013

 12 decisions were published this week.  Read the learning points below.

 

Key messages:

  • FOI appeals can consider whether more information is held
    Appeals to the Commissioner aren't just made in relation to refusals to release information - requesters can also appeal if they think an authority has not provided all of the relevant information it holds. Appeals of this nature can often lead to more information being disclosed. But in two such cases this week we found that the authorities had provided all the information. (Decision 179/2013 and Decision 182/2013).

 

  • When applying the "personal data" exemption, provide clear, relevant arguments
    When considering the personal data exemption in section 38(1)(b) of the FOI Act, take time to carefully consider the issues. Clearly focused arguments exploring the legitimate interests of the requester and data subject(s) will help support your case in the event of an appeal. A recent Supreme Court ruling provides helpful guidance on the steps to follow when considering these interests.

 

  • Searches must be relevant, specific and thorough
    Any search for information by an authority should be appropriate and relevant to the information requested. Is your search likely to uncover all the information held? If the answer to this is no, you should review your search parameters. Our ruling in Decision 189/2013 requires an authority to carry out further searches, as we were not satisfied that those undertaken were adequate.

 

  • Provide your full name every time you make a request for information
    When requesting information, remember that you need to provide your full name - regardless of your relationship with the authority or your familiarity with its staff. An FOI request will only be valid when your full name is included, and the Commissioner can't begin an investigation if this is missing. There have been a small number of recent cases which we haven't been able to take forward for this reason. And authorities - remember to let the requester know that the full name is required if it's missing from their initial request.

 

  • When additional information is identified during an investigation, consider it properly
    Additional information relevant to a request is occasionally identified during the Commissioner's investigations. When this happens, the authority must assess this information as normal - either releasing it to the requester, or making a case for the application of an exemption. In Decision 184/2013, additional information was located, yet the authority did not apply an exemption but also did not release it. As a result, our decision required this information to be disclosed.

 

  • Ensure arguments for non-disclosure relate specifically to the information in question
    The starting point when considering any exemption should always be the content of the information - does the exemption apply to all or only some of it? Where relevant, establish at an early stage what information can be disclosed, then focus on considering why the remainder of the information should be withheld.

 

  • If arguing that information is confidential because it has been prepared in preparation for legal action, be sure that it has...
    Information which has been prepared in preparation for potential legal action will often fall within the scope of the FOI or EIR provisions that protect such information. However, when making this case, be sure that that is actually the reason your information was created. In Decision 186/2013, the Commissioner found that the information in question was prepared as part of a complaint, not in preparation for potential legal action. We went on to order the release of the information.

Decisions issued:

  • Decision 179/2013 - Grundon Waste Management Limited (GWM) and the Scottish Ministers
    GWM appealed because they did not consider that the Ministers had provided them with all the information held in relation to their request, which focused on a specific planning appeal. Following investigation, we concluded that all relevant information held had been released to GWM.

 

  • Decision 180/2013 - Mr D and Dumfries and Galloway Council
    A technical decision addressing the Council's failure to respond to Mr D's information request within 20 working days.

 

  • Decision 181/2013 Mr Anthony Giles and Westerns Isles NHS Board
    A technical decision focusing on the Board's failure to respond to Mr Giles' information request and request for review within the FOI Act's 20 working day timescales. During our investigation, the Board identified an administrative issue with its FOI arrangements. This led to the Board instigating a review of its FOI practices, and putting in place measures to reduce the risk of such failures happening again in the future.

 

  • Decision 182/2013 - Dr Robbie Coull and Highland Health Board
    Another appeal (see also Decision 179/2013) where the requester believed that additional information should have been provided in response to the request. Our investigation concluded that all relevant information was released.

 

  • Decision 183/2013 - Montrose Pictures Limited (MPL) and the Chief Constable of the Police Service of Scotland
    MPL requested information relating to a specific incident. While some information was provided, other information was withheld. Following MPL's appeal, further information was disclosed. Our decision finds that the Police had been entitled to withhold the remainder, on the basis of the FOI exemption protecting personal data (section 38).

 

  • Decision 184/2013 - Mr Tom Gordon and the Scottish Ministers
    Mr Gordon requested information regarding the Scottish Oil Fund. The Ministers withheld some information, citing various FOI exemptions. During our investigation the Ministers applied an exemption to information it had already released to Mr Gordon in the initial response. Additional information was identified during the investigation, but the Ministers did not apply any exemptions but also did not disclose the information to Mr Gordon. Our decision requires that all information be released to Mr Gordon.

 

  • Decision 185/2013 - Mr Paul Drury and NHS 24
    Mr Drury requested information on the revenue generated from certain types of telephone numbers used for patients' calls. Following investigation, we found that NHS 24 had provided Mr Drury with all the relevant information it held.

 

  • Decision 186/2013 - Mr Tim Quelch and Mr Donald Keith and City of Edinburgh Council
    Two requesters made separate requests for the same information relating to statutory notices. The Council withheld the information under the EIRs on the basis that there were ongoing disciplinary investigations taking place. On review, the Council also argued that the report had been prepared in anticipation of potential future legal action. We found that while some information had been correctly withheld, the majority should have been disclosed.

 

  • Decision 187/2013 - Mr Paul Macaskill and Western Isles NHS Board
  • Decision 188/2013 - Dr Peter Gordon and Western Isles NHS Board
    Following on from Decision 181/2013, two further technical decisions addressing Western Isles NHS Board's failure to respond to Mr Macaskill and Dr Gordon's information requests and requests for review within the timescales allowed for under the FOI Act.

 

  • Decision 189/2013 - Mr Jim Gault and Scottish Borders Council
    The Council provided some information to Mr Gault in relation to his request about a development, and told him that other relevant information could be inspected on Council premises. Our decision found that the Council had failed to provide all relevant information, and required it to undertake further searches.

 

  • Decision 190/2013 - Ms Barbara Ramsden and Highland Council
    Ms Ramsden requested information on contaminated land at a specific location. Information was provided, with some information "redacted" (blacked out), with the Council stating it was covered by the EIR exception that protects confidential legal information (regulation 10(5)(d)). Following investigation, we supported this conclusion, finding that the public interest arguments in favour of disclosure did not, in this case, outweigh those in withholding the information.
 

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