Decisions Round-up: 3 to 7 August 2015

How do you interpret requests for information? When should you clarify what the request is for? Do you 'think EIRs' when first looking at a request? This week's Decisions Round-up gives tips to help you get it right on these points, and more.

Key messages:

  • Make sure you can show that harm will occur, before withholding information
    In Decision 119/2015, we didn't accept that disclosure of some information would be likely to inhibit officials from providing similar advice in future. There was no obvious sensitivity about the information or the context in which it had been provided. However, we accepted that other information should be withheld, where the authority was able to show why inhibition was likely to follow disclosure.
  • Make sure you actually hold information before refusing to provide it
    A recurring theme, with several recent decisions is where authorities have applied an exemption to information which, on investigation, it turns out they don't hold. Decision 122/2015 is a case like this.
  • If the request can be interpreted in more than one way, seek clarification
    In Decision 121/2015 we criticise an authority for interpreting a request too narrowly. Where there is any uncertainty about the range of information covered by the request, you should check what the applicant intended as soon as possible.
  • Sometimes a public authority won't hold the information that you ask for
    Often, people make requests for information which they expect to be available from the public authority, but are told that the authority doesn't hold it. In these cases, we expect the authority to be able to show that it has carried out reasonable searches or that there are good reasons why it could not be expected to hold the information. Cases like this feature in Decisions 117/2015, 118/2015 and 123/2015.
  • Remember the EIRs
    Requests for environmental information must be considered under the EIRs . In Decision 120/2015, the authority realised that the information was environmental when carrying out its review. It would have been better if this had been identified when it first replied to the request.

    To read more about when the EIRs apply, read our briefing on 'What is Environmental Information?' .

Decisions issued:

  • Decision 117/2015 James Duff and the Accountant in Bankruptcy (AIB)
    Mr Duff asked for reports showing that legislation had been complied with in his own case. He was told that the AIB did not hold the requested information. After taking into account the age of the information and the limited role of the AIB under the legislation, we accepted this.
  • Decision 118/2015 Robert Robb and the Chief Constable of the Police Service of Scotland
    Mr Robb asked for information about particular bail checks, and the time taken for these checks to be carried out. Police Scotland replied that it did not hold information about the time taken to do the bail checks, and that it would cost more than £600 to provide the number of bail checks.

    We accepted that Police Scotland did not keep records of the time taken to carry out bail checks. Because of the way in which bail checks are recorded, we accepted that it would cost considerably more than £600 to provide the number of bail checks requested by Mr Robb.
  • Decision 119/2015 Tommy Kane and the Scottish Ministers
    Mr Kane asked for correspondence about the use of private contractors in Scotland's NHS. The Ministers provided some information but withheld information from three documents, arguing that disclosure would inhibit the free and frank provision of advice. We accepted their arguments in relation to some of the information, but ordered disclosure of other information.
  • Decision 120/2015 The Kennel Club and the Scottish Ministers
    The Kennel Club asked for information about Orkney's Core Paths Plan. The Ministers provided some information but withheld some legal advice. After reviewing their decision, the Ministers decided that the information was environmental information and withheld it under the exception for internal communications. We accepted that there was a strong public interest in withholding the legal advice (on administration of justice grounds), which outweighed the public interest in disclosing it.
  • Decision 121/2015 Alastair Tibbitt and City of Edinburgh Council
    Mr Tibbitt asked for information about a consultancy contract relating to the economic development of Edinburgh's East End. The Council provided some information and told him some was exempt from disclosure. After review, the Council told him that it did not hold the information it had previously said was exempt.

    We accepted that, on its own interpretation of the request, the Council did not hold the information. However, we found that this interpretation was too narrow and required the Council to give a further response to Mr Tibbitt.
  • Decision 122/2015 Allan Nugent and Glasgow City Council
    Mr Nugent asked for information about a meeting between the Council and Glasgow Taxis Ltd, and mandates submitted by the union, Unite. The Council refused to provide information from the mandates on the grounds that it was "sensitive personal data" and exempt from disclosure.

    We found that the Council did not hold any mandates from the members of Unite, and should have told Mr Nugent this. The Council provided some information and told Mr Nugent that it did not hold other information covered by his request.
  • Decision 123/2015 Mr J and the Scottish Prison Service (SPS)
    Mr J asked for information relating to an investigation carried out by the SPS and New College Lanarkshire, into allegations about a College staff member based at HMP Shotts. After investigating, we accepted that the SPS did not hold the information.
  • Decision 124/2015 Paul Hutcheon and the Scottish Ministers
    Mr Hutcheon asked for information about hospitality at Bute House since Nicola Sturgeon became First Minister, and for dates of meetings with Rupert Murdoch. We found that the Ministers failed to respond to his request and review within the FOI Act's timescales.
  • Decision 125/2015 Peigi MacSween and the Scottish Ambulance Service (SAS) Board
    Ms MacSween asked for information about actions SAS had taken following a complaint she had raised. We found that the Board failed to respond to her review within the FOI Act's timescales and expressed concern that it had taken nearly four months for a reply to be sent.

Cases resolved informally:

In some cases, where it is appropriate, we will work to resolve cases without the need for a formal decision. We resolved nine cases this way in July. Here are the main reasons the cases were resolved:

  • The authority provided information during the investigation
    This happened in four cases. The requesters were satisfied with the information and withdrew their appeals.
  • We told the authority we were unlikely to agree that a request was vexatious
    This led to the authority giving a different response to the requester.
  • The authority responded to the request for review after an appeal was made to us
    This happened in two cases. In one, the requester was happy with the response and decided to withdraw his appeal. In the other, the requester wasn't happy with the response - he will make a new appeal to us based on the outcome of the review.
  • We told the requester we were likely to agree the request was too wide
    This led to the requester withdrawing their appeal. We also gave them advice about making new, narrower requests that wouldn't fall foul of the excessive costs provisions.
  • The requester was unhappy that the authority had refused to say whether it held any information
    During the investigation, the authority confirmed it didn't hold the requested information and the requester was happy to withdraw his appeal.

Court of Session judgment:

Charles Welsh asked Dumfries and Galloway Council (the Council) for information about the revision of its disciplinary policy. By the end of the investigation, we were satisfied that the Council had given Mr Welsh all of the information it held - see Decision 147/2014.

Mr Welsh appealed our decision to the Court of Session and the judgment was issued on 10 June 2015.

Mr Welsh argued that we had not taken full account of the evidence before us and so had failed to ensure that the representatives of the Council who corresponded with us during the investigation were not facing a conflict of interest. Mr Welsh suggested that we should have asked the Council to convene a committee specifically to deal with our investigation.

He asked the Court to order us to make a finding that the Council's records keeping had breached the Scottish Ministers' Code of Practice on Records Management and requiring us to commence a criminal investigation into his allegations that information had deliberately been withheld from him.

The Court of Session did not uphold any of Mr Welsh's grounds of appeal. The Court also commented that it had no power to give these kind of directions to the Commissioner.

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