Decisions Round-up: 04 to 08 September 2017

Our decisions this week highlight the part that a little extra time and a little more care can play in resolving FOI problems. Whether it be an authority taking time to provide extra background information in a request response, or a requester taking care to ensure they accurately describe what they're looking for - investing a little extra time up front can offset a lot of problems later.


Learning points:

  • Providing extra information can help resolve a requester's concerns
    Providing background information alongside an FOI response can benefit both requesters and authorities. Additional information can help a requester gain a better understanding of a particular situation, while also helping to manage their expectations and improve the quality of future requests. In Decision 139/2017 we found it would have been helpful if the authority had explained to the requester that the meeting records it intended to publish were summaries and not full minutes.

    Decision 140/2017 concerned a request about whether a road had been adopted by a local authority. It hadn't, so the authority held no information. Rather than just telling the requester that it didn't hold the information, however, the council helpfully explained that this meant that no adoption had taken place.
  • Take time to understand the scope of a request
    An important early step in responding to any information request is to make sure you've interpreted the request reasonably, and understand what's likely to fall within its scope. If you don't, your searches may be doomed to at least partial failure - as happened in Decision 141/2107.

    And if you're requesting information, think carefully about what is covered by your request. Have you clearly described all the information you want? In two of our resolved cases this month, the case was closed after the requester acknowledged that their request didn't quite cover the information they wanted. Our Tips for Requesters can help.
  • Authorities should always consider whether personal data can be anonymised
    Authorities will often have to withhold information when it's personal data, but it may still be possible to anonymise it so it no longer identifies anyone. If this can be done, the information won't be personal data any longer and may be disclosable (if other exemptions don't apply). This should always be considered for requests involving personal data (Decision 136/2017).
  • FOI only applies to information an authority actually holds
    Authorities aren't required to create new information in response to FOI requests. The FOI right covers information that is held by an authority at the time the request is received. While it may be appropriate for us to comment on records management practice from time to time, we can't require authorities to provide information that doesn't exist. We looked at this in Decisions 138/2017 and 139/2017.


Decisions issued:

  • Decision 136/2017 Hannah Kirkpatrick and the Scottish Funding Council (the SFC)
    The SFC was asked for information about early retirement packages. We found that the SFC had failed to disclose all the information it held which wasn't exempt. The remaining information was disclosed during our investigation.
  • Decision 137/2017 Mr R and Dumfries and Galloway Health Board (NHS Dumfries and Galloway)
    Mr R asked for information about letters containing threatening language. NHS Dumfries and Galloway provided copies of some letters and told Mr R that he could access the remaining information without using FOI. We found that, in fact, NHS Dumfries and Galloway didn't hold the information.
  • Decision 138/2017 Mary Flett and Orkney Islands Council
    The Council was asked for information (in two requests) about work carried out on a section of road. It disclosed some information and said it didn't hold the remainder. We were satisfied that it didn't hold any more information, but found that the Council had failed to meet the FOI Act's timescale when responding to one of the requests.
  • Decision 139/2017 Lesley Scott and Scottish Ministers
    The Ministers were asked for minutes of meetings relating to John Swinney's engagement with the Named Person policy. At review, the Ministers withheld the information on the basis that it would be published within 12 weeks of the date of the request. The Ministers subsequently informed the requester it had been published. We investigated whether all the information covered by the request had been published, and accepted that it had been.
  • Decision 140/2017 Dave Sutton and South Lanarkshire Council
    Mr Sutton asked whether the Council had adopted specific roads in a housing development. At first, the Council took the view that the request was for environmental information. On review, the Council decided the request wasn't for environmental information, and that it didn't hold any relevant information. The Council explained it would only hold recorded information if the roads were adopted, which they were not. We accepted that the Council didn't hold the information - but also found that any information held would hav been environmental information (so the Council should have responded under the EIRs).
  • Decision 141/2017 Neilston Community Council ad East Renfrewshire Council
    The Council was asked about a car parking consultation. It provided some information. We found that the Council failed to provide all the information it held, while also failing in its duty to provide advice and assistance to the requester. Given that the requester obtained all the information by other means, we didn't require any further action.


Resolved cases

We also resolved eight cases in August without the need for a formal decision, after the requesters chose to withdraw their appeals. The reasons were:

  • The requesters received a response
    In one case, the requester got the information they wanted from the authority during our investigation and decided to withdraw.

    The other four cases related to failures to respond. In three, the requester got a response during our investigation and decided to withdraw. In the fourth, we investigated but concluded that the public authority had in fact responded - the requester withdrew after we explained this.
  • An "absolute" exemption applied
    In one case, we investigated and explained that the information was clearly covered by an absolute exemption (which meant we couldn't require disclosure in any circumstances). The requester accepted this and withdrew.
  • The wording of the request
    In one case, because of the way the request had been framed, it became clear that we were unlikely to find the authority held any information. The requester agreed to withdraw their appeal and make a fresh request.

    In another case, the scope of the appeal to us was the issue - it didn't cover what the requester was really looking for. They agreed to withdraw and make a fresh appeal.

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