Decisions Round-up: 2 to 6 October 2017

Does the age of the information matter? This week we look at how age can determine whether or not information can be withheld, and have guidance on how the age of the information is calculated. We also have advice on when the vexatious provision should be used when dealing with wide-ranging requests.

In addition to the decisions issued, we take a closer look at how we managed to resolve five cases in September.

Learning points:

  • Historical records 1: most exemptions are time limited
    While some exemptions, can be applied regardless of how old the information is, most exemptions can't be applied once information gets to a particular age. In most cases, this is once the information is more than 15 years old. Make sure you know how long exemptions can be applied for - check our exemption briefings for details.


  • Historical records 2: check how the records are assembled
    It's not just the age of the information which matters - how the information is stored will also be relevant. Decision 159/2017 deals with a request for burial records. Some of the information was more than 15 years old, and the authority applied an exemption which lasts for 15 years. However, where records created at different times are, for administrative purposes, kept together in one file, all of the records can be treated as being created when the latest of the records was created (section 57(2) of the FOI Act). In this case, the burial records were together in one file, so the authority was entitled to apply the exemption to all the information, even though some of it was more than 15 years old.


  • Authorities shouldn't be too technical when interpreting a request
    In Decision 157/2017 , the Commissioner criticised an authority for initially applying a too technical interpretation of the request (in this case, "bid documents"). This meant that the authority excluded information which, if the request had been interpreted in layman's terms, clearly fell within scope. As ever, if in any doubt, authorities should ask the requester to confirm what information they want.


  • Wide ranging requests: vexatious or excessive costs?
    Under the FOI Act, authorities aren't required to comply with requests which costs more than £600 to deal with. Similarly, authorities aren't required to comply with requests which are vexatious. When an authority receives a request which will cost more than £600 to comply with, and the cost of the request is the main consideration (see Decision 160/2017), it will usually be better for the authority to refuse to comply on cost grounds rather than refusing the request because it is vexatious. That will allow the authority, where appropriate, to give advice and assistance to the requester on how to bring their request within the £600 limit.

Decisions issued:

  •  Decision 157/2017 James McEnaney and the Scottish Ministers (the Ministers)
    The Ministers were asked about a tender for work on the national standardised assessments introduced as part of the National Improvement Framework. The Ministers withheld some information, claiming disclosure would substantially prejudice the effective conduct of public affairs and the commercial interests of the company (ACER International UK Ltd.) which had been awarded the contract. The Ministers disclosed more information during the investigation. We were satisfied that the remaining information was exempt from disclosure. However, we weren't satisfied with the Ministers' interpretation of the request and commented on this in the decision.


  • Decision 158/2017 Guy Kerry and Highland Council (the Council)
    This decision finds that the Council failed to respond to a request and subsequent request for review about the Rua Reidh Lighthouse in Wester Ross. We ordered the Council to respond to Mr Kerry.


  • Decision 159/2017 Mr A and the City of Edinburgh Council (the Council)
    Mr A asked the Council for copies of interment and/or digging book entries for specified burial plots. The Council withheld the information on the basis that disclosure would, or would be likely to, prejudice substantially the effective conduct of public affairs . We weren't satisfied that disclosure would have this effect and ordered the Council to disclose the information.


  • Decision 160/2017 Russell Ashcroft and New College Lanarkshire (the College)
    The College was asked about specific internet searches carried out by a staff member and for information about the organisations funded by the College. The College decided the requests were vexatious. It later said that it wasn't obliged to comply because the requests would each cost (much more) than £600. As cost was the most significant driver, we focussed on this and concluded that the College wasn't obliged to comply with either request.


  • Decision 161/2017 Derrick Rawson and Perth & Kinross Council (the Council)
    The Council was asked for the costings in a bill of quantities supplied to it by Tayside Contracts. The Council refused to disclose the information, on the basis that disclosure would cause substantial prejudice to Tayside Contracts' commercial interests . We agreed: the information was sensitive pricing information. Disclosure would have made it very difficult for Tayside Contracts to bid competitively in future tendering exercises, and would have threatened its commercial viability.

Resolved cases

We also resolved five cases in September without the need for a formal decision.

  • In two cases, during the investigation, the public authorities disclosed the information they had withheld to the requesters. In both cases, the requesters were happy to withdraw their appeals once they received the information.


  • In another case, the requester appealed because they were unhappy that the authority had responded to their request under the EIRs rather than under the FOI Act. We explained to the requester that his request did in fact cover environmental information and that the authority had no choice but to respond under the EIRs. The requester was satisfied with this explanation and withdrew the appeal.


  • Finally, in two (connected) cases, and following an investigation, we told the requester that we were satisfied the public authority had already disclosed all of the information it held. The requester was happy to withdraw the appeals without the need for a formal decision.


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