Decisions Round-up: 2 to 6 December 2019

In our Tips for Requesters, we advise that FOI requests should be kept separate from other contact with a public authority. However, authorities should be mindful that sometimes a request for information will be made within other correspondence, such as a complaint or an enquiry about a service. This week's round-up includes an example of this.

We also have a reminder that the Commissioner can only consider whether authorities were right about providing the information they hold - not whether they hold the right information - and that what information is already publicly available can have a bearing on whether an exemption applies.

Learning points:

  • Identifying the relevant information and considering it fully
    If the requester is to get a full response to their request, it's important that the public authority identifies all the information it holds that falls within the scope of the request, and considers that information fully in deciding how to respond. Lessons in these areas were identified in Decision 170/2019.
  • The Commissioner has to keep within his remit
    In a decision, we can only consider whether a Scottish public authority responded to an information request in accordance with the legislation we're responsible for. If a requester's concern doesn't relate to an FOI matter, we can't comment on the authority's practices, nor whether it's following the relevant law or its own policies correctly. In Decision 172/2019, we found that the authority had interpreted a request reasonably, in accordance with its own understanding of the relevant employment procedures. While the requester may have had a different understanding of those procedures, it would have been beyond our remit to require the authority to respond on the basis of his understanding.
  • Information requests may be found in other correspondence
    Public authorities should bear in mind that not all information requests will be neatly labelled as such. They may be found within other correspondence, such as complaints, but they still need to be responded to under the FOI legislation. In Decision 173/2019, we found a request which hadn't been recognised and responded to appropriately.
  • Authorities should always check what's already public
    Before withholding information under any exemption, it's important to check whether it's available to the public already - we found that this wasn't done (and so information was withheld incorrectly) in Decision 174/2019.

Decisions issued:

  • Decision 170/2019: Transport Scotland
    Transport Scotland was asked about compensation or damages claims submitted to it by contractors in relation to the Queensferry Crossing project. Transport Scotland withheld the information as it considered disclosure would harm the commercial interests of the contractors. We found that Transport Scotland had correctly withheld some information, but other information had been wrongly withheld and should be disclosed. We also found that some information, only identified during the investigation, should have been found earlier.
  • Decision 171/2019: Glasgow City Council
    The Council received two information requests for records relating to a named cafe. It disclosed information. The requester believed further information was held. Our decision found that the Council didn't hold any more information.
  • Decision 172/2019: Aberdeenshire Council
    The Council was asked for information about the number of requests for contract changes under its 'Worksmart' flexible working policy. It provided information it believed fell within the scope of the request. The requester was dissatisfied, arguing that he had been given the wrong information by the Council and other information was held. We found that the Council interpreted the request reasonably and took adequate, proportionate steps to establish what it held; we didn't find that any further information was held.
  • Decision 173/2019: General Teaching Council for Scotland (GTCS)
    The GTCS was asked about the assessment and quality assurance procedures at the Scottish Qualifications Authority (SQA). The GTCS failed to treat this as an information request but did disclose information it held, with some redaction. The information was disclosed in full during the investigation.

    The Commissioner investigated and found that the GTCS was wrong to withhold some information and failed to inform the requester of his rights. Given that the requester received the information requested during the investigation, the Commissioner didn't require the GTCS to take any action.
  • Decision 174/2019: Scottish Enterprise
    Scottish Enterprise was asked for information regarding the account management of Raytheon Systems Ltd and Chemring Energetics. Scottish Enterprise disclosed some information but withheld the remainder, arguing that it was either commercially sensitive or that disclosure would lead to an actionable breach of confidence. Some of this information was disclosed during our investigation.

    We found that the information disclosed during the investigation had been wrongly withheld: the remaining information had been correctly withheld under the exemption protecting commercially sensitive information.
  • Decision 175/2019: Scottish Ministers
    The requester asked the Ministers for a copy of the Social Security Directorate People Survey 2018. The Ministers withheld the information on the grounds that disclosure would harm the effective conduct of public affairs. The Commissioner found that the information had been wrongly withheld and required its disclosure.

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