Decisions Round-up: 2 to 6 July 2018

Though the vexatious provision applies only to the request, not to the requester, this week's round up explains that past contact with the authority can be a relevant factor. It also looks at a case where we had to decide whether a response had been issued and draws attention to the importance of taking action to prevent late responses.

Learning points:


  • Vexatious requests: the background to the request can be relevant
    In deciding if a request is vexatious, the focus needs to be on the request, and not on the identity of the person making the request. However, in some cases, a requester's previous dealings with an authority will be relevant when considering the nature and effect of a request. In two decisions issued this week, Decisions 090/2018 and 094/2018, we agreed that the authorities were entitled to take account of their previous dealings with the requesters. In one case, the matter which was at the heart of the request went back almost 25 years. In the other, the requester had made over 700 information requests in just over two years.


  • Tips for requesters: be specific
    One of our top tips for requesters is to be as specific as you can when describing the information you want. Requests which are vague or wide-ranging might lead to a response taking longer or might lead to your request being refused on cost grounds. There's another reason to be specific - requests which are long and rambling, or which use intimidatory language, can contribute to a request being considered vexatious. But don't forget another of our top tips - authorities have a duty to help you make a request, so contact them for advice if you're not sure what to ask for.


  • He said/she said: the balance of probabilities …
    If a requester tells us they didn't get a response, but the authority assures us they sent one, we need to decide what happened based on the balance of probabilities (i.e. more probable than not). In Decision 092/2018, the requester told us the authority hadn't responded to their request for review. However, the authority was able to provide us with a copy of the response it said it had posted to the requester and to show, from its IT systems, that the response had been approved the day before it sent it. We concluded, on balance of probabilities, that the response had been sent and that there was no breach of the FOI Act.


  • Timescales (yet again)
    We can't ignore the fact that in three of the decisions issued this week (Decisions 095/2018, 096/2018 and 098/2018) authorities failed to respond to the requests - and requests for review - on time. We recognise that the occasional request can get missed or overlooked, but if this is becoming a pattern for your authority, think seriously about using our self-assessment module on responding on time.

Decisions issued:


  • Decision 090/2018 Mr D and Scottish Enterprise
    Scottish Enterprise was asked about financial irregularities. This related to an issue which had taken place 25 years ago and which had been investigated by various bodies. In the circumstances, we concluded that the request was vexatious.


  • Decision 091/2018 Rob Edwards and Transport Scotland
    This involved a request for the financial model for the M8 M73 M74 motorway improvements project. Transport Scotland disclosed some information, including a redacted version of the summary financial model, during the investigation. We agreed with Transport Scotland that the remaining information was excepted from disclosure under regulation 10(5)(e) of the EIRs: it was commercially confidential and disclosure would cause substantial harm.


  • Decision 092/2018 Mr N and Police Scotland
    This looked at whether Police Scotland had carried out a review. Mr N said he hadn't received a response to his request for review but we concluded, on balance, that the response had been sent and that Police Scotland had complied with the FOI Act.


  • Decision 094/2018 Brian Gourlay and West Dunbartonshire Council
    The Council was asked about the legal costs it had incurred in an Employment Tribunal case going back some years. Taking into account the history of Mr Gourlay's correspondence with the Council, we agreed that this request was vexatious.


  • Decision 095/2018 Mr H and Highland Council
    Mr H asked the Council for details of meetings with, and gifts received from, external organisations in the last three years. The Council failed to respond to the request or request for review within the timescales set down by the FOI Act/the EIRs. The decision orders the Council to carry out a review.


  • Decision 096/2018 Mark Irvine and Glasgow City Council
    Mr Irvine asked the Council about the costs of equal pay claims. The Council failed to respond to Mr Irvine's request, and request for review, within the timescales set down by the FOI Act.


  • Decision 098/2018 William Munro Construction (Highland) Ltd and Highland Council
    The Council failed to respond to a request, and request for review, about a waste management contract. The decision requires the Council to carry out a review. This is the second decision this week involving this Council failing to respond on time.

Resolved cases

We resolved 13 cases in June without the need for a formal decision.

In seven of these cases, the requester had appealed to us because the public authority hadn't carried out a review. Once we got involved, the authorities carried out a review and the requesters were happy to withdraw their appeals.

In a further three cases, the requesters withdrew their appeal on the basis of advice from our office:

  • one was satisfied with our preliminary findings that the authority didn't hold any information falling within the scope of their request;
  • in one case, it wasn't obvious what information the requester wanted. We recommended (after speaking to the authority who agreed not to treat a new request as a repeat request) that they make a more clearly worded request - the requester agreed;
  • in another case, the requester withdrew when we explained that we couldn't make a formal determination on whether information the authority didn't hold should in fact be held by the authority.

Of course, authorities also have a role to play in resolution. In one case, a requester withdrew their appeal when the authority disclosed the information they'd asked for. In another case, the requester withdrew when the authority disclosed information it didn't actually hold at the time of the request.

In a final case, the requester abandoned their appeal without telling us why.

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