Decision Notice 108/2023: Incidents involving specific named religious groups
Authority: Police Service of Scotland
Case Ref: 202200600
Summary
The Applicant asked the Authority for information about incidents related to the imprisonment, attack or
deprivation of human rights of people belonging to specific named religious groups. The Authority told the
Applicant that it did not hold any information falling within the scope of the request. The Commissioner
investigated and was satisfied that the Authority did not hold the information requested.
Relevant statutory provisions
Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (4) (General entitlement); 17(1) (Notice
that information is not held); 21(1) (Review by Scottish public authority); 47(1) and (2) (Application for
decision by Commissioner)
The full text of each of the statutory provisions cited above is reproduced in Appendix 1 to this decision. The
Appendix forms part of this decision.
Background
1. On 25 March 2022, the Applicant made a request for information to the Authority. The Applicant asked for
a full statistical count and disclosure of all incidents of the following:
(i) the imprisonment, attacks, or deprivation of the human rights of Christian anti-communism politicians or
activists
(ii) the imprisonment, attacks, or deprivation of the human rights of Catholic families or their advocates
(iii) the imprisonment, attacks, or deprivation of the human rights of Christian pro-life politicians or
activists
between 25 March 2019 and 25 March 2022.
2. The Authority responded on 21 April 2022. The Authority notified the Applicant, under section 17 of
FOISA, that it did not hold the requested information about “imprisonment” or “deprivation of the human rights”.
The Authority also explained that to search for information regarding attacks, which it had interpreted as being a
“physical assault”, would, under section 12 of FOISA, exceed the cost of compliance as it would have to
individually assess for relevance all crimes of violence recorded during the three-year period specified in the
request. The Authority advised the Applicant that information about “imprisonment” was likely to be held by the
Scottish Prison Service.
3. Later the same day, the Applicant wrote to the Authority requesting a review of its decision. The
Applicant stated that they were dissatisfied with the decision because they believed the information requested was
held by the Authority and could be provided without exceeding the cost limit under FOISA.
4. The Authority notified the Applicant of the outcome of its review on 23 May 2022. The Authority upheld
its original decision without modification and further explained its role and the type of information it held.
5. On 23 May 2022, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1)
of FOISA. The Applicant stated that they were dissatisfied with the outcome of the Authority’s review because
they believed the Authority held the information requested and it had failed to respond to their request for
review within the prescribed timescale.
6. The Applicant did not raise dissatisfaction with the Authority’s response that it would exceed the cost of
compliance under FOISA to comply with their request. Consequently, this matter has not been investigated.
Investigation
7. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the
power to carry out an investigation.
8. On 21 June 2022, the Authority was notified in writing that the Applicant had made a valid application.
The case was subsequently allocated to an investigating officer.
9. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide
comments on an application. The Authority was invited to comment on this application and to answer specific
questions in support of its position that the requested information was not held. It was also asked for comments
on the time taken to respond to the request for review.
Commissioner’s analysis and findings
10. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority.
Section 17(1) – Notice that information is not held
11. Section 1(1) of FOISA provides that a person who requests information from a Scottish public authority
which holds it is entitled to be given that information by the authority, subject to qualifications which, by
virtue of section 1(6) of FOISA, allow Scottish public authorities to withhold information or charge a fee for it.
The qualifications contained in section 1(6) are not applicable in this case.
12. In terms of section 1(4) of FOISA, the information to be provided in response to a request under section
1(1) is that falling within the scope of the request and held by the authority at the time the request is
received. This is not necessarily to be equated with information an applicant believes the authority should hold.
If no such information is held by the authority, section 17(1) of FOISA requires it to give the applicant notice
in writing to that effect.
13. The standard of proof to determine whether a Scottish public authority holds information is the civil
standard of the balance of probabilities. In determining where the balance of probabilities lies, the
Commissioner considers the scope, quality, thoroughness and results of the searches carried out by the public
authority.
14. The Commissioner also considers, where appropriate, any reason offered by the public authority to explain
why it does not hold the information. While it may be relevant as part of this exercise to explore expectations
about what the authority should hold, ultimately the Commissioner’s role is to determine what relevant recorded
information is (or was, at the time the request was received) actually held by the authority.
The Authority’s submissions
15. The Authority explained that it would not class individuals in police custody as “imprisoned” as that is
usually a short-term situation leading either to release or transfer to a prison if the individual is remanded in
custody following court (at which point “imprisoned” would be more appropriate terminology).
16. The Authority submitted that it could be argued that any act of criminality against a person could be a
breach of their human rights, but it did not record incidents or crimes in those terms.
17. The Authority explained that the system it uses to record data about incidents reported to the police is
primarily a resource deployment system, which captures the nature of the incident and enough detail to inform the
police response only (e.g., the personal details of the caller, the location of the incident and free text boxes
for further descriptions).
18. The Authority confirmed that the system it uses has no further specific fields for the personal details of
the parties involved (e.g., their religion or their occupation).
19. The Authority explained that it therefore had no means by which to search incidents based on any of the
categories mentioned by the Applicant in their request.
20. The Authority noted that, as it advised the Applicant in its original response, the only scenario where it
is likely that such detail would be captured is in a recorded hate crime. While the Authority could search for
crimes recorded as motivated by religion where the linked parties were Catholic, links to their advocacy, politics
or occupation are not searchable. Additionally, while “attacks” could be reasonably interpreted as crimes of
violence, “deprivation of human rights” has no obvious corresponding crime type.
21. Consequently, the Authority was satisfied that it did not hold the requested information.
The Applicant’s submissions
22. The Applicant submitted that they believed the Authority did hold information falling within the scope of
their request.
The Commissioner’s view
23. Having considered all relevant submissions and the terms of the request, the Commissioner is satisfied
that the Authority took adequate and proportionate steps in the circumstances to establish whether it held any
information that fell within the scope of the Applicant’s request.
24. Given the explanations and submissions provided, the Commissioner is satisfied, particularly given the
nature of the information requested, that the Authority does not (and did not, on receipt of the request) hold any
information falling within the scope of the Applicant’s request.
25. While the Applicant believed and expected the specified information to be held by the Authority, the Commissioner is satisfied that this was not the case.
26. The Commissioner therefore concludes that the Authority was correct to give the Applicant notice, in terms of section 17(1) of FOISA, that it did not hold the information requested.
Handling of the request – failure to comply with timescales
27. The Applicant was dissatisfied with the time taken by the Authority to respond to their requirement
for review.
28. Section 21(1) of FOISA gives authorities a maximum of 20 working days after receipt of the
requirement to comply with a requirement for review, subject to qualifications which are not relevant in
this case.
29. It is a matter of fact that the Authority did not provide a response to the Applicant's requirement
for review within 20 working days.
30. The Commissioner must therefore find that the Authority failed to comply with section 21(1) of
FOISA in this case.
Decision
The Commissioner finds that, in the respects specified in the application, the Authority partially complied with
Part 1 of the Freedom of Information (Scotland) Act 2002 in responding to the information request made by the
Applicant.
The Commissioner finds that the Authority complied with Part 1 of FOISA by informing the Applicant, in line with
section 17(1), that the requested information was not held.
However, the Authority failed to comply Part 1 of FOISA by failing to comply with the timescale, as set out in
section 21(1), for responding to the Applicant’s requirement for review.
The Commissioner does not require the Authority to take any action with respect to this failure.
Appeal
Should either the Applicant or the Authority wish to appeal against this decision, they have the right to appeal
to the Court of Session on a point of law only. Any such appeal must be made within 42 days after the date of
intimation of this decision.
Euan McCulloch
Head of Enforcement
9 November 2023
Appendix 1: Relevant statutory provisions
Freedom of Information (Scotland) Act 2002
1 General entitlement
(1) A person who requests information from a Scottish public authority which holds it is entitled to be given
it by the authority.
(2) The person who makes such a request is in this Part and in Parts 2 and 7 referred to as the “applicant.”
…
(4) The information to be given by the authority is that held by it at the time the request is received,
except that, subject to subsection (5), any amendment or deletion which would have been made, regardless of the
receipt of the request, between that time and the time it gives the information may be made before the information
is given.
...
17 Notice that information is not held
(1) Where-
(a) a Scottish public authority receives a request which would require it either-
(i) to comply with section 1(1); or
(ii) to determine any question arising by virtue of paragraph (a) or (b) of section 2(1),
if it held the information to which the request relates; but
(b) the authority does not hold that information,
it must, within the time allowed by or by virtue of section 10 for complying with the request, give the applicant
notice in writing that it does not hold it.
…
21 Review by Scottish public authority
(1) Subject to subsection (2), a Scottish public authority receiving a requirement for review must (unless
that requirement is withdrawn or is as mentioned in subsection (8)) comply promptly; and in any event by not later
than the twentieth working day after receipt by it of the requirement.
...
47 Application for decision by Commissioner
(1) A person who is dissatisfied with -
(a) a notice under section 21(5) or (9); or
(b) the failure of a Scottish public authority to which a requirement for review was made to give such a
notice.
may make application to the Commissioner for a decision whether, in any respect specified in that application, the
request for information to which the requirement relates has been dealt with in accordance with Part 1 of this
Act.
(2) An application under subsection (1) must -
(a) be in writing or in another form which, by reason of its having some permanency, is capable of being used
for subsequent reference (as, for example, a recording made on audio or video tape);
(b) state the name of the applicant and an address for correspondence; and
(c) specify –
(i) the request for information to which the requirement for review relates;
(ii) the matter which was specified under sub-paragraph (ii) of section 20(3)(c); and
(iii) the matter which gives rise to the dissatisfaction mentioned in subsection (1).
