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Filing cabinet with papers flying outDecisions Round-up: 16 to 20 July 2012

Scottish Information Commissioner, Rosemary Agnew, published five decisions this week. The decisions were in response to applications made to her by requesters dissatisfied with the way in which Scottish public authorities dealt with their information requests made under the Freedom of Information (Scotland) Act 2002 (the FOI Act) and the Environmental Information (Scotland) Regulations 2004 (the EIRs).

Key messages

  • Search thoroughly for information at both the request and review stage.
    One of the decisions published this week is an example of an application that might not have reached the Commissioner had the public authority searched thoroughly when dealing with the request. Make sure that staff responding to requests know where to search and whom to ask, and that they have the authority to obtain information from colleagues at all levels.
  • Make sure you understand the request properly from the outset.
    Read the detail - are you looking for the right information, in relation to the right time-frame? If it is not clear what the requester is looking for, engage with them and provide advice and information to help them articulate more clearly what information they are seeking. Equally, if you are the requester have you set out what you want clearly? If you are unsure about how to set out your request, contact the public authority and seek advice before you make the information request.
  • Deal with each request on a case-by-case basis.
    Requests are often similar, or asking for information from similar types of documents. Don't take a blanket approach, consider each one on the basis of the information held - even if it is the same type of information it may not be covered by exemptions in the same way.

Summary of key decisions

  • Stirling Council releases a "significant amount" of additional information after further searches made during the Commissioner's investigation.
    A requester asked the Council for copies of correspondence which contained specific phrases, and took place between a council official and a number of named individuals and organisations. In its response, the Council said it did not hold any information containing the specific phrases, but it did provide the requester with other documentation which mentioned the same search terms. During the Commissioner's investigation, the Council was asked to conduct further searches and as a result identified a significant amount of information that had been overlooked in the original search. This information was released to the requester during the investigation.

    The Commissioner's decision on this case finds that the Council did not respond correctly to the initial request. The decision highlights the importance of public authorities conducting proper searches when requests are received.

    See: http://www.itspublicknowledge.info/uploadedFiles/Decision118-2012.pdf
  • The importance of interpreting information requests accurately is highlighted by an application about City of Edinburgh Council.
    A requester asked for a range of information dating from 2008 in relation to a Statutory Notice for repairs, served on the requester by the Council. The Council provided a copy of the Notice, along with subsequent information relating to the commencement of repairs in 2011. The requester was dissatisfied that the Council did not provide information relevant to his request - i.e. documentation from 2008. The Council continued to claim that all relevant information had been provided.

    During the investigation, the Commissioner's staff drew the Council's attention to the fact that it was information from 2008 that was sought. The Council acknowledged it did not hold relevant information from that time, and that it should have informed the applicant when it first replied to the request.

    In her decision, the Commissioner expresses her concern that many months of investigation were required before the Council acknowledged that it had misinterpreted the request. While she noted that it can be helpful for authorities to provide additional information in response to requests, they should not, as in this case, give the impression that the additional information provided is actually what was requested.

    See: http://www.itspublicknowledge.info/uploadedFiles/Decision116-2012.pdf

  • Scottish Ministers reminded that requests must be considered on a "case by case" basis.

    Tom Gordon of the Sunday Herald asked the Scottish Ministers for all of the information contained in 18 internal audit reports, relating to their Health and Social Care Directorate. The Ministers withheld all 18 reports in their entirety, citing the FOI Act exemption that protects information where disclosure would harm the effective conduct of public affairs.

    Following her investigation, the Commissioner concludes that the Ministers were wrong to withhold the audit reports in their entirety and that the majority of the information in the reports was, in fact, appropriate for release. She accepts that the exemption had been correctly applied to some information contained in four out of the 18 withheld reports and this is reflected in her decision that the Ministers must disclose the 18 reports, subject to the redaction, or "blacking-out", of the exempt information.

    The Commissioner's decision also expresses disappointment that the Ministers continued to seek to exempt the information in its entirety throughout her investigation, despite a 2007 Court of Session ruling which considered and rejected a similar "blanket" approach.

    See: http://www.itspublicknowledge.info/uploadedFiles/Decision117-2012.pdf. The court ruling referred to is available at: www.scotcourts.gov.uk/opinions/2007CSIH08.html.

    All of the Commissioner's decisions are published in full at www.itspublicknowledge.info/decisions.

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