Decisions Round-up: 3 to 7 September 2018

The issue of whether information is held or not held is considered this week, along with the important point that advice authorities provide to FOI requesters should be realistic and helpful.

Learning points:


  • Information not held - or held in the wrong format?
    In Decision 133/2018, the authority held raw statistical data, but the requester had asked for it to be provided in a particular format (a spreadsheet and tables). We agreed that it was not "reasonably practicable" to provide the information in that format. In this case, the initial response from the authority was that the information was not held, which was potentially confusing for the requester.
  • Repeated requests - have the circumstances changed?
    If a request has been made before, and the circumstances and context haven't changed, authorities may treat the request as being repeated or vexatious. In Decision 136/2018, the request had already been considered in a previous decision, and there had been no change in circumstances. In this case, we warned the requester that any further requests for the same information were likely to be manifestly unreasonable under the EIRs.


  • Advice should be realistic
    In , we criticised the authority for providing the requester with advice on framing requests for information which it was highly unlikely to disclose, if held. Authorities should ensure the advice they provide is realistic and helpful, e.g. helping to word requests which have a reasonable prospect of obtaining at least some information, or at least managing expectations if that is unlikely to be possible.


  • Copyright and Intellectual Property Rights
    We haven't often considered the exception relating to intellectual property rights, but did so in Decision 141/2018. We accepted that the information was protected by copyright, but disclosure of copyrighted material in response to a request for information does not, by itself, breach copyright law. Substantial prejudice to intellectual property rights would require something more than merely their infringement.

Decisions issued:

  • Decision 133/2018 Patrick Smith and the Scottish Qualifications Authority (SQA)
    Mr Smith asked the SQA for progression statistics for National 5 to Higher and from Higher to Advanced Higher. Mr Smith asked the SQA to provide the information by means of a spreadsheet, as a series of tables, one for each subject.

    While it held the raw data, the SQA did not hold the information in the format requested by Mr Smith. We agreed with the SQA that it was not reasonably practicable to provide the information in that format and that, in any case, disclosing the information would incur excessive costs.
  • Decision 134/2018 Mr D and Fife Council
    The Council was asked for emails between it and the University of St Andrews about a boatshed and the lease of land at Lochore Meadows Country Park.

    The Council refused to disclose the information as it believed disclosure would harm its, and the University's, commercial interests and would constitute an actionable breach of confidence. We agreed that some, but not all, of the information could be withheld.


  • Decision 135/2018 Mr K and the Scottish Prison Service (SPS)
    The SPS was asked for a copy of a critical incident report regarding a named prisoner. The SPS disclosed the first part of the report, but withheld the second part in its entirety, on the basis that disclosure would breach the Data Protection Act. We agreed.


  • Decision 136/2018 Mr R and Dumfries and Galloway Council
    Mr R asked about the adoption of private drainage systems in 1976. The Council explained (as it had previously told Mr R) that local authorities had not been responsible for water and sewerage since local government reorganisation in 1996 and that all of the records it held at reorganisation had been passed to the relevant water authority (now Scottish Water).

    We agreed that the Council did not hold the information.


  • Decision 137/2018 Mr M and Glasgow City Council
    Mr M asked the Council about its Workforce Pay and Benefits Review. The Council told him it would cost more than £600 to respond, which meant it didn't have to comply with the request. We agreed. We also agreed that the Council had given adequate advice and assistance to the requester about narrowing his request.


  • Mr M and Police Scotland
    Police Scotland were asked for details of allegations of sexual abuse carried out by 86 named priests. We agreed that Police Scotland were entitled neither to confirm nor deny whether any information was held, given the effects that disclosure could have on the prevention or detection of crime.


  • Decision 139/2018 Stuart and Nan Greaves and VisitScotland
    Mr and Mrs Greaves asked VisitScotland for a copy of a quality assurance report it had carried out on a rental property. VisitScotland refused to disclose the report, arguing that disclosure would harm the commercial interests of the operator of the property. We decided that some information could be disclosed from the report without damaging the operator's interests.


  • Decision 140/2018 X and the University of Aberdeen
    The University was asked about a property it owned. The University provided information and stated that it did not hold any other information. The Commissioner was asked to decide whether the University held more information. After investigation, we were satisfied that the University had identified all of the information it held.


  • Decision 141/2018 Mr N and Highlands and Islands Enterprise (HIE)
    HIE was asked for a copy of a 2017 condition report on the foundations of various tows at Cairngorm mountain. HIE refused to provide the information, considering it to be both confidentially commercial and the intellectual property of the report's author (and claiming substantial prejudice on both counts). We disagreed that substantial prejudice would occur and ordered HIE to disclose the report.


Resolved cases

The FOI Act allows us to try to resolve cases informally. This often involves us giving advice to requesters to let them decide whether to continue with the appeal or, in the case of public authorities, to decide whether to disclose information they had previously withheld.

  • We resolved 25 cases informally in August: In nine of these cases, requesters withdrew their appeals after the public authority disclosed previously withheld information.


  • Four of the cases had been appealed to us on the basis that the public authority hadn't responded to the request - these appeals were withdrawn after the authorities provided a response.


  • In seven connected cases, we realised that the requests didn't actually cover the information the requesters really wanted. We advised them they would be better to make new, more clearly defined requests. They agreed, and decided to withdraw their appeals.


  • In one case, the appeal was identical to one we'd just issued a decision on. The requester withdrew when we sent them a link to the decision and explained we'd already found the information was exempt from disclosure.


  • The rest of the cases were closed for a variety of reasons, usually because we had told the public authority the Commissioner was unlikely to agree with their approach if it went to decision.

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