Decisions Round-up: 04 to 08 February 2019

This week, we learn about how exemptions can be used for information held for criminal investigations. We also consider the challenge of applying redactions to large documents in a case where inconsistencies crept in, and a case where 'legal professional privilege' couldn't apply to information that had already been made public.

Learning points:

  • A prosecution doesn't have to have taken place for a criminal investigations exemption to apply
    The exemptions in the FOI Act relating to criminal investigations apply if the information has been held at any time for this purpose. For example, in Decision 008/2019, it didn't matter that the case has never gone - and will never go - to prosecution. However, it may still be relevant when considering the public interest.
  • Information is only 'legally privileged' if it's not already public
    'Legal professional privilege' exists to ensure that communications between a lawyer and client (or documents created in contemplation of legal action), can be kept confidential.

    We rarely require a public authority to disclose information which is privileged. However, information can no longer be privileged if it's been made public already, either in full or through a comprehensive summary. In Decision 009/2019, the essence of the withheld information had been made known by the public authority already, so it was no longer confidential and therefore no longer privileged.
  • Redactions must be consistent
    When redacting information from large or multiple documents, public authorities need to ensure this is done consistently. If particular information is disclosed in one place, it will be in the public domain and shouldn't be withheld elsewhere (Decision 010/2019).
  • Authorities should give clear directions about where to find information
    When providing documents that contain requested information or when providing links to where information may be found online, it's important to provide clear directions to where the information can be found. That's an important part of authorities' duty to provide advice and assistance (Decision 011/2019).


Decisions issued:

  • Decision 007/2019 Mr J and Edinburgh Napier University
    Mr J asked about a staff engagement survey. The University withheld the information on the basis that disclosure would substantially prejudice the effective conduct of public affairs (for reasons relating to staff being willing to contribute freely, ensuring an effective survey). We found that they had been entitled to withhold it.
  • Decision 008/2019 Mr L and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Police Scotland were asked about a specific incident. They refused to disclose the information as it related to a criminal investigation. We found that they had been entitled to withhold the information, because it was held in order to establish whether a person should be prosecuted for an offence. In this case, the public interest favoured withholding it.
  • Decision 009/2019 Mr Q and Dumfries & Galloway Council
    Mr Q asked for a copy of an insurance investigation report. The Council withheld the information because it had been created in contemplation of litigation. During the investigation, some of the information was disclosed. However, we also found other information was not subject to litigation privilege (because it was no longer confidential) and required the Council to disclose it.
  • Decision 010/2019 Ms E and City of Edinburgh Council
    Ms E asked the Council for information which had been redacted from the published version of its contract with the developer of the former Royal High School site. The Council withheld it because of the harm it would cause to its own economic interests and those of the developer. The Commissioner did not accept this for all of the information withheld and ordered the Council to disclose some more information from the contract.
  • Decision 011/2019 Mr Y and Visit Scotland
    Visit Scotland was asked for audience targeting information relating to the "Scotland is Now" campaign. They provided some information and stated that more was available on its website. Mr Y believed VisitScotland held more information than this. After investigating, we were satisfied that all of the information was on the website or in the documents disclosed. However, we also found it had failed to provide reasonable advice and assistance to allow Mr Y to find the information he wanted. We required VisitScotland to rectify this.

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