Decisions Round-up: 12 to 23 August 2019

This week's decisions consider some less commonly-used areas of FOI law, including our first ever decision on one FOI exemption. We also have useful guidance on using the FOI "neither confirm nor deny" provision, we highlight an example of good practice when using the "future publication" exemption and have helpful guidance on redacting information. 


Learning points:

  • Information is exempt if disclosing it would constitute contempt of court
    Under section 26(c) of the FOI Act, authorities can refuse to disclose information if disclosing it would constitute, or be punishable, as contempt of court. This week, we published our first ever decision dealing with this exemption - Decision 125/2019. We found that disclosing complaints against Alex Salmond, the former First Minister, would be contempt of court in the light of a court order prohibiting the publication of information which would identify the complainers.
  • Good practice in redacting information
    In Decision 119/2019, the requester was unhappy with the way exempt information had been removed from documents: the authority had inserted the word "redacted" but did not make it clear how much information had been removed. There are no rules in FOI law (or the Code of Practice) for redacting information. However, the Commissioner recognised that there can be value to applicants in knowing just how much information has been redacted from a document.
  • Good practice when using the future publication exemption
    If an authority intends to publish information before an information request is received, the information can be exempted from disclosure, provided publication will take place within 12 weeks, it is reasonable to delay publication and the public interest favours a delay. Decision 113/2019 is an example of good practice when applying this exemption: the authority provided a date for publication and told the requester when information ended up being published earlier than expected.
  • Get it right first time - and save time
    In three decisions issued this week (all involving central government), the authority changed its position during our investigation, for example by confirming it didn't hold information it had previously exempted from disclosure or disclosing information it had previously withheld - see Decisions 119/2019, 122/2019 and 125/2019. If the authority had got things right at the start, it might have reduced the likelihood of an appeal.
  • Read requests carefully
    It's important that authorities make sure they understand requests before responding. In Decision 114/2019, the requester asked two separate questions - the first request specified dates, but the second didn't. The authority limited the second request to the dates specified for the first request. This led to us ordering the authority to do further work.
  • We can't always resolve underlying disputes
    Occasionally, as with Decision 117/2019, requests are composed in such a way as to try to elicit a particular response from an authority, particularly if there is a fundamental difference of opinion between the requester and the authority. In such cases, the Commissioner will consider whether an authority has been reasonable in the way it interpreted the request and will determine whether the response was appropriate. However, he cannot come to a view on the underlying dispute which led to the request.
  • Neither confirm nor deny: is the information already public knowledge?
    Section 18 of the FOI Act allows public authorities to refuse to say whether they hold information in some limited circumstances. However, authorities need to be careful about using the provision. If it's already public knowledge that an authority holds information (as was the case with complaints in Decision 125/2019), the provision usually won't apply.
  • Retention schedules can provide evidence of information not held
    Many of our investigations focus on whether an authority holds information - five of the decisions published this week looked at whether information was held. We have to decide, on a balance of probabilities, whether information is held and whether reasonable searches have been carried out. In Decision 115/2019, the requester asked for information that was over 10 years old. One of the factors we took into account was the authority's retention schedule, which made it clear that the information would have been destroyed after three years.


Decisions issued:

  • Decision 113/2019 Mr M and Scottish Borders Council
    The Council was asked for details of corporate credit card spending. The Council told the requester it intended to publish the information within 12 weeks and that it was therefore exempt from disclosure. The Commissioner agreed the Council had been entitled to apply this exemption.
  • Decision 114/2019 Mr N and Police Scotland
    Mr N asked Police Scotland about allegations made against NHS Ayrshire and Arran during a specific timeframe and about instructions from the procurator fiscal. While the Commissioner was satisfied that Police Scotland didn't hold any information for the first request, he noted that Police Scotland had limited its response to the second request to the timeframe mentioned only in the first request. He ordered Police Scotland to respond in full to the second request.
  • Decision 115/2019 Miss H and the Scottish Qualifications Authority (the SQA)
    The SQA was asked about a joint investigation it had carried out in 2008. The Commissioner was satisfied the SQA no longer held the information.
  • Decision 116/2019 Mr N and Fife College
    Fife College was asked about a complaint made against one of its students. The College refused to confirm or deny whether it held the information. The Commissioner agreed that this was the correct approach.
  • Decision 117/2019 Mr R and City of Edinburgh Council
    Mr R asked the Council about a lease of land related to the redevelopment of the St James Centre. The Commissioner agreed that the Council didn't hold the information. However, he also found that the Council had failed to respond to Mr R's request for review on time.
  • Decision 118/2019 Mr N and Glasgow City Council
    The Council was asked about a proposed Rangers Fanzone at Ibrox. The Council disclosed information, but withheld some personal data and some information disclosure of which would, in its view, substantially prejudice the effective conduct of public affairs. We agreed, given the background to the proposal (including a death threat made against a Council employee) that the Council was entitled to withhold the information.
  • Decision 119/2019 Salmon & Trout Conservation Scotland and the Scottish Ministers
    The Ministers were asked about a sea lice infestation of wild salmon at the River Blackwater on Lewis. The Ministers disclosed the information during the investigation - the Commissioner found they should have disclosed in response to the initial request.
  • Decision 120/2019 Mr A and the Scottish Ministers
    Mr A asked the Ministers about its consultation on Disability Scotland. The Commissioner found that the Ministers failed to respond to Mr A's request on time.
  • Decision 122/2019 Mr R and Transport Scotland
    Transport Scotland was asked about landscape planting works for the M8/M73/M74 roadworks contract. Transport Scotland told Mr R it didn't hold some of the information he had asked for - and that other information was commercially confidential under the EIRs. During the investigation, Transport Scotland told the Commissioner it didn't actually hold this information either. The Commissioner was satisfied Transport Scotland didn't hold the information, but found that Transport Scotland should have told Mr R this when it initially responded to his request.
  • Decision 125/2019 Mr J and the Scottish Ministers
    The Ministers were asked for anonymised copies of complaints made against Alex Salmond, the former First Minister, and for guidance given to female members of staff on being alone with him. The Ministers initially refused to confirm or deny whether they held any of this information. During our investigation, they confirmed they held the complaints against Mr Salmond, but still refused to confirm or deny whether any guidance existed.

    The Commissioner found that the Ministers should have confirmed they held the complaints, but was satisfied that they were exempt under the FOI Act, as disclosure would be contempt of court. He also found that the Ministers were entitled to refuse to confirm or deny whether they held any information about guidance given to female members of staff as doing so would harm the administration of justice.

Back to Top