Decisions Round-up: 3 to 7 July 2017

In this week's round-up we have a case that illustrates some of the benefits of actively publishing information and a reminder that, when it comes to environmental information, being subject to a confidentiality clause does not necessarily mean that the information is exempt from release.

In addition to the decisions issued, we look at the cases resolved during June and at a Court of Session judgement following an appeal by Police Scotland against one of the Commissioner's decisions.

Learning points:


  • Is disclosing personal data "necessary"? It might depend on what's already out there.
    In 2012, we issued a decision ordering NHS Ayrshire and Arran to disclose redacted versions of significant adverse event reports (SAERs) to help share key learning points. Five years later, we've issued a very similar decision - this time involving NHS Lothian (Decision 099/2017 ). Following our 2012 decision, Healthcare Improvement Scotland asked all health boards to publish, as a matter of course, summaries of SAERs. This is not something which NHS Lothian does. If they did, it might not have been "necessary" (in terms of condition 6 of Schedule 2 to the Data Protection Act) for us to order them to disclose redacted versions of the SAERs.


  • Confidentiality clauses won't always prevent information being disclosed.
    The Environmental Information (Scotland) Regulations allow public authorities to withhold confidential information (regulation 10(5)(d)), but only where disclosure would, or would be likely to, cause substantial harm. In Decision 100/2017, we looked at a case where a confidentiality agreement remained in place, despite the contract having come to an end. We agreed that the confidentiality agreement still stood, but disagreed that disclosure would cause harm.


  • Can an authority argue that it doesn't hold information on its website?
    In Decision 101/2017, the authority said it didn't hold the information the requester wanted but told the requester he could carry out his own research and get the information from its website. FOI gives requesters a right to recorded information held by an authority. The information the requester wanted hadn't been compiled by the authority, but we decided that the authority did hold the information - it held the building blocks from which the information could be generated.


  • Is information "otherwise accessible" if the requester needs to carry out research and analysis?
    In Decision 101/2017, the authority also argued that the information was exempt from disclosure because it was "otherwise accessible" to the requester (section 25 of the FOI Act).  We disagreed. It was not clear how the requester could find the information he had asked for.

Decisions issued:


  • Decision 099/2017 ASAP-NHS and NHS Lothian
    ASAP-NHS is an action group which "promotes a safe, transparent and accountable NHS in Scotland". They asked NHS Lothian for copies of significant adverse event reports (SAERs) from 2013. NHS Lothian disclosed heavily redacted versions of the reports. We agreed that a lot of the information - in particular, information which would identify patients - was exempt from disclosure. However, a lot of the information which had been redacted could safely be disclosed without identifying individuals, so we ordered NHS Lothian to issue new versions of the SAERs to ASAP-NHS.


  • Decision 100/2017 Bill Chisholm and Scottish Borders Council
    This is the latest in a series of decisions about the Council's waste treatment contract with New Earth Solutions Group (NESG). The Council disclosed a lot of information to Mr Chisholm, but withheld information which would, in its view, prejudice substantially the confidentiality of commercial or industrial information. We concluded, given the age of the information, the information which was already in the public domain, the contents of the withheld information and the fact that NESG had gone into administration in 2016, that disclosure would not have the effect argued by the Council.


  • Decision 101/2017 Mr G and Transport Scotland
    Transport Scotland was asked about subsidies paid to Argyll Ferries. It argued that it did not hold some information and - at the same time - that the information was "otherwise accessible" to Mr G from information published on its website. We concluded that Transport Scotland did hold the information, but that it was not otherwise available to Mr G. We ordered Transport Scotland to give Mr G the information he had asked for.

Court of Session


On 23 June 2017, the Court of Session issued its Opinion in the case of Philip Gormley (the Chief Constable of the Police Service of Scotland) v Scottish Information Commissioner. Police Scotland had appealed Decision 222/2016, which required them to disclose the total number of Covert Human Intelligence Sources Police Scotland had had since their inception.

The Court of Session found in favour of the Commissioner.

In the Opinion, the Court emphasises that it is the responsibility of the public authority to satisfy the Commissioner that an exemption applies.

(We understand that the Opinion won't be published on the Scottish Court Service website. A copy has been attached to the html version of Decision 222/2016 on the Commissioner's website.)

Resolved cases

We also resolved 12 cases in June without the need for a formal decision after the requesters chose to withdraw their appeals.

  • In one case, the requester withdrew when we told him, following an investigation, that we agreed it would cost more than £600 to comply with the request. This meant that the authority didn't need to respond. However, the authority gave the requester some background information to his request which was enough to satisfy him.


  • In a couple of cases, it became clear that the requesters hadn't been specific enough in what they'd asked for. They agreed to withdraw their appeals and start the process again.


  • In four cases, the requesters withdrew after being given some or all of the information they'd asked for once we got involved.


  • We were satisfied, following an investigation, that the authority didn't hold the information it had been asked for. The requester withdrew his appeal without the need for a formal decision.


  • One case focussed on whether the information that had been asked for was covered by the FOI Act or the Environmental Information (Scotland) Regulations. We were able to point the requester to a number of cases where we had concluded that similar information was environmental information, and she withdrew her appeal.


  • In two cases the (same) requester decided to withdraw their appeal shortly after making it.


  • In a final case, personal data had been withheld. We discussed the definition of personal data with the requester, who hadn't realised how wide the definition was, and told him that we wouldn't order disclosure of the information. He agreed to withdraw his appeal.


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