Decisions Round-up: 1 to 5 July 2019

This week, we look at the disclosure of young people's personal data in response to a FOI request. In this case, we decided that consent was not an appropriate basis to disclose information given the clear imbalance of power between the children and the data controller. We also look at a case where the timing of a request was important when deciding whether an exemption for commercial sensitivity applied.

Learning points:

  • Relying on consent to disclose personal data may not always be appropriate
    Public authorities can rely on consent as a basis to disclose third party personal data in response to an FOI request, but this might not always be appropriate. Consent may not be a lawful basis for disclosing personal data where there is a clear imbalance of power between the data subject and the public authority. The General Data Protection Regulation (GDPR) also recognises that children's personal data merits specific protection. In Decision 098/2019, we considered the disclosure of school exam grades and concluded that there was an imbalance of power between the school pupils and the Council. It was therefore not appropriate for us to consider consent as a basis for processing.
  • Timing can be key when deciding whether commercial information can be disclosed
    The timing of a request for commercial information can be a critical factor when deciding how to respond. Decision 093/2019 considered whether commercial information submitted to support a claim for compensation could be disclosed. At the time of the FOI request and review, the claim remained unresolved and negotiations were ongoing. We recognised the potential harm to the claimant's business if the information were to be disclosed and the public interest in being able to conclude negotiations in a confidential setting. Our decision recognised that the position may change with the passage of time.

Decisions issued:

  • Decision 093/2019 Mr R and Fife Council
    Mr R asked about a claim for compensation following the issue of a Discontinuance Order. The Council refused to provide the information on the basis that it was commercially confidential. After investigating, we agreed with the Council. We also found that some information, only identified during our investigation, should have been found earlier.
  • Decision 097/2019 Ms Samantha Kerr and West Lothian Council
    The Council was asked about guidance and procedures relating to social workers' interactions with courts. The Council said that it held no information. We agreed, but found that the Council's review response was late.
  • Decision 098/2019 Mr Y and Stirling Council
    Mr Y asked for details of exam grades at a school, broken down by subject and grade. The Council provided some of the information, but refused to provide a more detailed breakdown on the basis that it would lead to individual pupils being identified and would breach data protection legislation. After an investigation, we agreed.
  • Mr W and the General Teaching Council for Scotland (GTCS)
    Mr W asked about an individual's attendance at meetings and tasks they undertook. The Commissioner was asked to decide whether the GTCS had found all the information falling within the scope of this request. We concluded that the GTCS had located and provided all the information that it held.

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