Decisions Round-up: 2 to 6 May 2016

 It's not always easy for authorities to spot a request for review. This week's round-up has advice for both authorities and requesters to help the review process run more smoothly. 

Learning points:

  • Can all staff spot a request for review?
    Remember that any correspondence expressing dissatisfaction with the way an authority has handled an information request could be a valid request for review. It just has to contain the requester's name and address and be sent on time. Valuable time can be lost if a review is missed, so all public authority staff should be trained to spot them, and take action.

    And for requesters: it's a good idea to be as clear as you can when asking for a review. The clearer you are, the less the chance that your review request will be overlooked, and the response delayed.

    Requesters can also narrow their request when asking for a review - this won't make it a new request. As long as the information sought was covered in the original request, it should be treated as a review by the authority.

    It's also good practice for a review to be carried out by someone who wasn't involved in the original request. These issues are discussed in Decision 089/2016.


  • Think carefully before refusing to confirm or deny
    Under section 18 of the FOI Act a public authority can, in some circumstances, refuse to confirm or deny whether it holds information - or even whether the information exists. Obviously, this is something to be done sparingly, and only when the circumstances genuinely demand it. Doing so must be in the public interest, and the information - if it was held (and it might not be) - must be capable of being withheld under a limited number of exemptions.

    Authorities should also bear in mind that they can't use this provision if they've already revealed whether they hold the information. In Decision 092/2016, we found that Police Scotland weren't entitled to claim section 18 once they'd acknowledged to the requester that they didn't hold the information he was looking for.


  • Requesters - think about taking up advice to narrow a request
    If a public authority refuses to respond to a request because it would cost to do so, we'd usually expect it to give the requester advice on how the request might be narrowed. We'd also recommend to requesters that they think carefully about following such advice, particularly if they've made a request that's very broad in scope. It may be the only way of getting any of the information you're looking for - see Decision 091/2016 for an example.


  • Publicly available information won't always be free
    Both the FOI Act and the Environmental Information (Scotland) Regulations (the EIRs) require public authorities to publish certain types of information, so it can be easily accessed without having to make an information request. Authorities can refuse information requests for publicly available information because it's available to the requester through another route. Authorities can also set a charge for published information, where it's reasonable to do so.

    In Decision 090/2016, we found that an authority wasn't obliged to give the requester a copy of a document he could get from another authority for a small charge. The information was "easily accessible" (the test in the EIRs) to this particular requester - although bear in mind that publicly available information may not be "easily accessible" to all requesters.


  • "Internal communications" generally means what is says
    There's an exception in the EIRs for internal communications. Usually, this covers communications within the authority that's claiming the exception. There may be circumstances in which the relationship between the authority and a third party means that communications can be classified as internal, but these are likely to be rare. It's certainly not intended that every communication between the authority and any third party service provider should be an internal communication - as we found in Decision 089/2016.


  • Respond in time!
    Both the FOI Act and the EIRs require authorities to respond to requests and requests for review within a set time. As we've said before, complying with these timescales is important. This round-up includes two cases where a response was late (Decisions 089/2016 and 098/2016).

Decisions issued:

  • Decision 089/2016 Thomas McFadden and East Dunbartonshire Council
    Mr McFadden asked the Council for information relating to asbestos at his home address, and asbestos test sample results for all vacant properties over the preceding year.

    The Council provided some information, but said that other information could be withheld under the EIRs as internal communications. We found that some of this information should not have been withheld as it didn't constitute an internal communication. We also found other procedural issues, in particular failures to respond on time and handle the request for review properly.


  • Decision 090/2016 David Telford and North Ayrshire Council
    Mr Telford asked for a copy of a planning agreement relating to the Council's local development plan. The Council dealt with the request under the EIRs and refused to provide the information on the basis that it was already available and easily accessible (in this case from the Registers of Scotland, for a fee). We found that the Council was entitled to do this.


  • Decision 091/2016 David Eyre and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Police Scotland were asked for copies of all Memorandums of Understanding that it, or its predecessors, had entered into since 2000. Police Scotland refused the request, stating that complying would cost more than the £600 limit. The Commissioner accepted this.


  • Decision 092/2016 Marc Ellison and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Mr Ellison asked Police Scotland for details of purchases from two named companies. Police Scotland refused to confirm or deny whether they held the information, or whether the information existed, under section 18 of the FOI Act.

    During the investigation, Police Scotland told Mr Ellison that they didn't hold the information he was looking for. As a result, we found Police Scotland was not entitled to respond in terms of section 18.


  • Decision 098/2016 Mr S and West Lothian Council
    Mr S asked for information about lair records. We found that the Council failed to comply with Mr S's requirement for review within the required timescale.

Resolved cases:

We also resolved six cases in April without the need for a formal decision. The summaries below provide insight into the less visible role that resolution can play in improving relationships between authorities and requesters.

These are the main reasons the cases were resolved:

  • Information was disclosed during the investigation
    As usual, the main reason for cases being resolved was that authorities disclosed additional information to the requester during our investigation. We encourage information to be disclosed wherever possible, as this ensures the requester can receive any disclosable information as early as possible. That happened four times in April. The requesters were happy with what was disclosed and withdrew their appeals.


  • We treated the appeal as abandoned
    We can refuse to carry out an investigation if we are satisfied that the requester has abandoned their appeal. In two case, we wrote to the requester, asking them to clarify their position after the public authority had responded to their request (in one case) and published what appeared to be the majority of the relevant information (in the other). When the requester didn't respond after reminders, we closed the case.

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