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Filing cabinet with papers flying outDecisions Round-up: 29 July to 2 August 2013

There were eight decisions issued this week.  Read the learning points below.

 

Key messages:

  • When refusing a request because its burdensome, remember the duty to assist
    Requests that impose a significant burden can be refused, e.g. if they exceed the FOI Act's £600 upper limit, or if the level of burden contributes to the request being deemed "vexatious". In these circumstances, it will be good practice for authorities to engage with requesters under their duty to advise and assist, exploring whether e.g. a response could be provided if the request was narrowed. And requesters, remember that you don't have to wait for an authority to contact you - you can also ask an authority for advice to help you with your request.

 

  • Consider what can be released
    When applying an exemption, always consider whether there is any element of the information which might be suitable for release. Even very sensitive documents can contain some information which may be appropriate for disclosure. In Decision 146/2013 the authority agreed to disclose information relating to the structure of a document during our investigation, meaning that the requester received information about the general areas under consideration, but not the detail of those considerations.

 

  • Do your systems allow for the easy retrieval of information?
    Systems that support the fast identification and retrieval of information aren't just useful for FOI, they also help an authority to undertake its day-to-day functions more effectively. In Decision 147/2013 we found that the refusal of a request on cost grounds was appropriate, because the way in which information was recorded and stored meant that it could not be accessed within the £600 cost limit.

 

  • If you don't hold the information, be sure to tell the requester!
    While it is certainly helpful for authorities to provide additional information and context to requesters, remember to also clearly set out your response to the request at hand. In Decision 149/2013, an authority responded to a request by providing an explanation of its position, but didn't tell the requester that it didn't hold the information he'd asked for. This led to an appeal which might possibly have been avoided.

 

  • If you're dissatisfied with a response, use the appeal process
    If you're unhappy with the response you receive from a public authority, the most effective way forward will normally be to follow the FOI appeal process. In Decision 152/2013, a requester undertook their own inquiries to the authority about the handling of their request, with the refusal of those inquiries subsequently being appealed to the Commissioner.

 

  • The "neither confirm nor deny" provision and the public interest
    Section 18 of the FOI Act allows authorities to refuse to reveal whether information is held in certain circumstances. For this provision to be applied, the information (if it was held) must fall within the scope of one of a small number of exemptions, and it must be contrary to the public interest to reveal whether or not the information is held. If the exemption in question is subject to a public interest test, authorities should be prepared to put forward two separate sets of public interest arguments to the Commissioner - one in relation to the exemption, and the other in relation to the application of section 18. In Decision 150/2013, the authority's initial submissions did not do this clearly, so we were required to seek further clarification.

 

  Decisions issued:

  • Decision 145/2013 - Mr Tom Gordon and the Scottish Ministers
    Mr Gordon requested details of all agenda items for meetings of the Scottish Cabinet since 2007. The Ministers refused to comply with the request on the grounds that it was vexatious. Following investigation, we agreed with the Ministers' approach, on the basis that responding to the request would impose a significant and disproportionate burden on Ministers.

 

  • Decision 146/2013 - Mr Paul Hutcheon and the Scottish Ministers
    The Ministers refused Mr Hutcheon's request for its risk registers and risk assessments relating to referendum policy. Some information was released to Mr Hutcheon during the course of our investigation. We found that the remainder of the information had been correctly withheld under the exemption relation to the formulation of government policy.

  • Decision 147/2013 - Jackie Baillie MSP and the Scottish Ministers
    The Ministers refused Ms Baillie's request on the basis that responding would exceed the FOI Act's upper cost limit. Our investigation agreed that Ministers were entitled not to comply with the request on this basis.

 

  • Decision 148/2013 - Mr Rob Edwards and the Scottish Ministers
    Mr Edwards appealed the Ministers' refusal to release the names of farmers in receipt of agricultural subsidies in 2011. Similar information had previously been published, following an earlier decision by the Commissioner. However, we agreed with the Ministers' non-disclosure in this case. While we consider that there is a strong public interest in disclosure, we found that a recent decision of the European Court of Justice prevented us from ordering release.

 

  • Decision 149/2013 - Mr Stephen Woods and Glasgow City Council
    Mr Woods requested information relating to the requirement for certain specified Council employees to pay professional fees. The Council's response provided an explanation of policy decisions it had taken in the past on this matter. Following investigation, we found that the Council did not hold any information falling within the scope of the request, and that the Council should have informed Mr Woods of this in its response.

 

  • Decision 150/2013 - Mr James Hunter and the Scottish Ministers
    Mr Hunter requested details of specified correspondence between the Ministers and the Prince of Wales. The Ministers refused to confirm or deny whether information was held, under section 18 of the FOI Act. Following consideration of the specific circumstances of this case, we found that Ministers had been entitled to respond to the request in terms of section 18.

 

  • Decision 151/2013 - Mr S and the Scottish Prison Service (SPS)
    The SPS refused Mr S's request for information about specific impact assessments on the grounds that it was vexatious. We did not agree with the SPS's conclusion that the request was vexatious, and required that the information be disclosed to Mr S.

 

  • Decision 152/2013 - Mr Ross Sanderson and the Scottish Ministers
    Mr Sanderson's request for information relating to the handling of his previous request was refused. Following investigation, we found that Ministers had been entitled to withhold some information, but that the remainder should be disclosed.

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