Decisions Round-up: 4 to 8 July 2016

This week's round-up highlights one of the differences between FOI and the EIRs, and provides confirmation that information can't be withheld solely because it's unverified or inaccurate. We also discuss a case where a requester withdrew an appeal because they were worried about harming their relationship with a public body... 


Key messages:

  • FOI is everyone's right
    Each month we publish details of cases that are resolved informally, without the need for a decision. These cases usually offer good news: cases are resolved because the authority has disclosed more information, or because the requester has a better understanding of the reasons for non-disclosure. In one case this month, however, a requester chose to withdraw because they were concerned that pursuing an appeal may impact negatively on their relationship with the authority.

    This is concerning. FOI is everyone's right, and requesters should never feel worried or inhibited about exercising their rights. And requesters should certainly not be punished for using FOI: the Commissioner would take a dim view if she found this to be the case.


  • All recorded information is covered
    In Decision 141/2016, the public authority told the requesters that it didn't hold some statistical information. During the investigation, it emerged that the authority did hold information, but had concerns about disclosing "unverified" data. It did not mention these concerns to the requesters, or apply any exemption to the data, which was clearly covered by the request. The accuracy of information is not, on its own, a reason why it should not be disclosed. Authorities can choose to provide additional explanation so that information is seen in context.


  • Requests cannot be transferred (under the FOI Act)
    Decision 141/2016 also includes a reminder that requests cannot be transferred to another authority under the FOI Act. Instead, where possible, the requester should be advised to make a new request to the authority which holds the information. (Requests can be transferred under the Environmental Information Regulations.)


  • In complex cases, it's important to provide advice and assistance
    Some cases are complex, because of the information involved or the background to the request. Providing additional advice or explanation may help the requester understand why the response to their request may not be what they expected. It may also help the authority make sense of a complicated situation. Decisions 135/2016 and 141/2016 are two cases where this failed to happen.


  • Carry out adequate searches before responding to a request
    It's important to make sure that information is located and provided at the earliest opportunity. Getting this right can avoid having to respond to a request for review and/or an appeal to the Commissioner. In Decision 139/2016, we were concerned that adequate searches for a relatively straightforward request were only carried out once we had started to investigate. The same was true in Decisions 134/2016, 137/2016 and 138/2016, where the authorities failed to identify all information they held until we investigated.


  • Confidentiality - when is it lost?
    Under FOI information can be withheld if a claim of "confidentiality" could be maintained in legal proceedings. This could apply, for example, to communications between a solicitor and client, or to documents prepared to inform legal proceedings. Decision 136/2016 considers whether a report lost its confidential status because some information was disclosed in an email to the requester. We accepted that the report was prepared in contemplation of legal action, and noted that the emails were marked "without prejudice". In the circumstances, we accepted that the information had not been made public or disclosed in a way which resulted in a loss of confidentiality.


Decisions issued:

  • Decision 134/2016 Stephen Williams and East Ayrshire Council
    Mr Williams made a two-part request to the Council about the contact details of the manager(s) responsible for children leaving care. The Council answered the first part of the request, but not the second. The Council disclosed information which answered the second part of the request during our investigation.


  • Decision 135/2016 Ben Paechter and City of Edinburgh Council
    Professor Paechter asked for a letter which the Council had referred to in a submission to the Scottish Public Services Ombudsman. The Council provided a letter, but Professor Paechter didn't accept it was the right one. The Council then told him it didn't hold the letter he wanted. After investigation, we accepted that the Council didn't hold the letter.

    The sequence of correspondence was complex, and we found that the Council had failed to provide reasonable advice and assistance to Professor Paechter. This was provided during our investigation.


  • Decision 136/2016 Mrs Y and Glasgow City Council
    Mrs Y asked for an assessor's report about damage to her car. The Council refused to provide the report because it was confidential. Some of the information in the report had been disclosed to Mrs Y in an email marked "without prejudice". We found that, in this case, this did not affect the confidential status of the information in the report, and accepted that it was correctly withheld.


  • Decision 137/2016 Mr N and the Scottish Prison Service (the SPS)
    The SPS was asked for the rules about getting married or entering into a civil partnership in prison. The SPS disclosed some information. In its response, it mentioned a draft policy, but didn't say whether this fell within the scope of Mr N's request. During the investigation, we told the SPS we were satisfied that the draft policy was covered by the request. The SPS disclosed it to Mr N.


  • Decision 138/2016 Gordon Cairns and East Lothian Council
    Mr Cairns asked for information about funding for Dunbar Community Bakery. The Council disclosed some information and told him that any remaining information it had was held on behalf of the Scottish Ministers, meaning that the Council didn't hold it for the purposes of the FOI Act. We accepted that some information was held on behalf of the Scottish Ministers (this information was disclosed during the investigation) but found that the Council held information on its own behalf that it failed to locate until our investigation began.


  • Decision 139/2016 Mr H and the Scottish Prison Service (the SPS)
    In response to a request for specific policies and procedures, the SPS provided Mr H with some information. He believed it had not provided all the information covered by his request. After further searches were carried out during our investigation, Mr H received more information. We found that this information should have been identified and provided when the SPS first responded to his request.


  • Decision 140/2016 Pat Toms and Glasgow City Council
    Mr Toms asked for the name of a Council employee and the department in which they worked. After review, the Council disclosed the name of the department, but withheld the name of the employee. We accepted that it was correct to withhold this personal data.


  • Decision 141/2016 Scottish Parliament's Cross Party Group on Chronic Pain (the CPG) and NHS Dumfries and Galloway
    The CPG asked for information about chronic pain services, including waiting list numbers and waiting times for appointments. NHS Dumfries and Galloway initially told the CPG that the information could be found online. After review, it told the CPG that it did not hold some of the information.

    We found that NHS Dumfries and Galloway did hold information covered by the request, even though it was "unverified" statistics. It also failed to provide the CPG with reasonable advice and assistance.


  • Decision 142/2016 Stephen Williams and Angus Council
    Mr Williams made the same two-part request as he did in Decision 134/2016. We were satisfied with the way the Council responded to the request. Mr Williams questioned whether his request had been misinterpreted given that his request used terminology which wasn't used by the Council. We were satisfied that the Council had acted appropriately.


  • Decision 143/2016 Peter Wattingham and North Ayrshire Council
    Mr Wattingham's request was for information about specific planning applications. He did not receive a response. We found that the Council failed to respond to his request and request for review within the timescales set down by the FOI Act. During the investigation, the Council responded to Mr Wattingham's request for review and apologised.


  • Decision 145/2016 Ian Baxter and Aberdeen City Council
    The Council disclosed some information in response to Mr Baxter's request about the misuse of blue badges. Mr Baxter believed that it was likely to hold more information, and raised questions about the accuracy of the information he had received. We were satisfied that the Council had disclosed all the information it held. We cannot investigate whether information is accurate, or whether a Scottish public authority should hold more information than it does.


  • Decision 146/2016 Claire Miller and Falkirk Council
    Ms Miller asked about the number of people waiting for social care packages, but did not receive a response. We found that the Council failed to respond to her request and her request for review within the timescales set down by the FOI Act. During the investigation, the Council apologised to Ms Miller and responded to her request for review.

Resolved cases:


We also resolved six cases in June without the need for a formal decision. The summaries below show some of the ways in which this was achieved.

  • Information was disclosed during the investigation
    This happened three times in June. In two cases, all the information covered by the request was disclosed. In one case, only some of the information was disclosed, but this enabled the requester to make a new request.


  • We treated the appeal as abandoned
    We can refuse to carry out an investigation if we are satisfied that the requester has abandoned their appeal. In one case, the authority provided the information to the requester before we had begun to investigate. We asked if he still required a decision. When he failed to respond, we treated the case as abandoned.


  • Applicants decided to withdraw
    Rather worryingly, in one case the applicants withdrew because they didn't want to damage their relationship with the public authority. Exercising legal rights under FOI should not be an action which leads to punitive action or retribution. In another case, the applicant withdrew after the authority provided further information about the information it was withholding and its reasons for doing so.

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