Decisions Round-up: 04 to 22 June 2018

This week's round-up features details of a lesser-known provision of the new data protection law, insight into our investigation procedures and a relatively rare case where we found that a request processed under the environmental information rules should have been dealt with under FOI.

Learning points:

  • Data protection: the transitional provisions
    Most of our readers will have noticed that data protection law changed on 25 May when the GDPR and Data Protection Act 2018 (DPA 2018) came into force. What readers might have missed, however, are the rules in Schedule 20 to the DPA 2018 which tell the Commissioner what to do about appeals made to him where a public authority dealt with an information request before 25 May.

    In a nutshell, if an authority dealt with an information request for personal data before 25 May, when determining whether an authority complied with FOI law, the Commissioner has to consider the request under the old data protection rules. However, if the Commissioner decides that the personal data should have been disclosed under the old rules, he can't order the authority to disclose it if the information would now be exempt under the new rules.

    Decision 083/2018 is the first personal data decision we've issued since 25 May. It goes into more detail about these transitional provisions. You can also find out more in our
  • Environmental information. Or is it?
    We often find that a request for environmental information has been responded to under the FOI Act instead of the EIRs. It's more unusual for us to find that a request has been responded to under the EIRs when it should have been dealt with under FOI.

    In Decision 073/2018, the authority dealt with a request about the amber/red light trigger speed for traffic lights that had been set to change if a motorist approached over a certain speed. We concluded that the information wasn't environmental information. For example, the introduction of the speed triggers had nothing to do with noise reduction or emissions levels.

    Read our guidance on the definition of environmental information here.
  • FOI gives a right to recorded information
    The FOI Act gives individuals the right to information, but the right only applies to recorded information already held by authorities. The FOI Act does not require a public authority to create information in order to respond to a request, or to provide information which is not held in a recorded form, such as an official's unrecorded opinion. (Decisions 075/2018 and 079/2018)

    However, an authority might have to compile information it already holds in order to respond to a request. More guidance on when information is held is available here.
  • Disclosure shouldn't compromise a criminal investigation
    Two of the decisions in this round-up involve matters investigated by the police. In both cases, we agreed the authority was right to refuse to disclose the information. In Decision 071/2018, we were concerned that disclosing the information could compromise any future investigation into an unexplained death. In Decision 078/2018, which involved a live investigation, we concluded that the public interest lay in ensuring that criminal allegations could be investigated - and prosecuted - without compromising the accused's right to a fair trial.
  • Is the request for review valid?
    We still see cases where authorities have carried out a review, but the request for review was invalid. And if the request for review wasn't valid, we can't investigate. We look at this in Decision 077/2018. It's not enough that a requester asks for a review to be carried out. The requester must say why they are unhappy with the initial response. The reasons don't have to be detailed - it might be as simple as saying they're unhappy that the information was withheld or that they didn't get a response.

    Remember that the duty to advise and assist covers the review stage too. If a request for review is invalid, authorities need to tell the requester how to make a valid request for review.

    The Section 60 Code of Practice contains helpful guidance on giving advice and assistance at review stage.
  • Our investigations will vary…
    While many of the Commissioner's FOI investigations are desk-based and conducted from our office, we will, where appropriate, visit a public authority's premises to explore their systems, procedures and practices first hand. In Decision 081/2018 we visited a local authority to examine its taxi test system, leading us to conclude that it hadn't located all of the information held when responding to a request.

Decisions issued:

  • Decision 071/2018 Douglas Walker and Police Scotland
    Police Scotland were asked for the Senior Investigating Officer's report into an unexplained death. We agreed it was exempt from disclosure under section 35 of the FOI Act as disclosure could harm a future investigation into the cause of the death or a subsequent prosecution.
  • Decision 072/2018 Mr Z and the Scottish Ministers
    Mr Z asked about the 20 largest charity grants made by the Government in each of the last five years. The request was detailed and asked, for example, how the grants were reviewed. We accepted that the information was not held centrally and that, as it would cost more than £600 to comply with the request, the Government did not have to respond.
  • Decision 073/2018 Dorothy King and Christopher Wybrew and Transport Scotland
    Transport Scotland were asked about the trigger speed to be adopted for "reverse discrimination" traffic signals at Springholm, Dumfries and Galloway. Although Transport Scotland told the requesters the information was exempt from disclosure, we found that Transport Scotland didn't actually hold the information.

    The decision also looks at the definition of environmental information.
  • Decision 074/2018 Guy Kerry and Highland Council
    Mr Kerry asked about a specific meeting. The Council disclosed information to Mr Kerry. More information was located during our investigation and this was also disclosed. By the end of the investigation, we were satisfied that the Council had disclosed all of the information it held.
  • Decision 075/2018 June Quinn and the Scottish Ministers
    Ms Quinn asked the Ministers for the contact details of the person or office dealing with Ministerial accountability and scrutiny. The Ministers provided Ms Quinn with the information she had asked for. Ms Quinn believed more information was held, but we were satisfied that all relevant information had been disclosed.
  • Decision 076/2018 Mr A and City of Edinburgh Council
    Following the collapse of a wall at Oxgangs Primary School and the subsequent closure of 17 schools, the Council commissioned a report from a construction and procurement industry expert. After the report was published, Mr A asked the Council for some of the information considered during the investigation. The Council argued that the information was excepted from disclosure under regulation 10(5)(e) of the EIRs on the basis that disclosure would prejudice substantially the confidentiality of commercial or industrial information. We found that that not all of the tests in the exception could be met. For example, the particular information could not be described as "confidential."
  • Decision 077/2018 Brian Gourlay and West Dunbartonshire Council
    In this case, the Council failed to respond to Mr Gourlay's request within the FOI Act's timescales or to tell Mr Gourlay about his right to appeal to the Commissioner and, subsequently, to the Court of Session.
  • Decision 078/2018 Mrs B and East Lothian Council
    Mrs B asked the Council for CCTV footage of an incident she appeared in. The Council refused to disclose the information. The footage had been seized by Police Scotland and had been submitted to the Procurator Fiscal to decide whether to prosecute. We agreed that footage was exempt from disclosure - the information was held for the purposes of a criminal investigation and the public interest lay in maintaining the exemption.
  • Decision 079/2018 Mr A and South Lanarkshire Council
    The Council was asked about a planning application and its potential effects on the environment. Some of the information was withheld under regulation 10(5)(g) of the EIRs on the basis that disclosing the information would prejudice substantially the protection of the environment. We agreed that some information could be withheld, but ordered the Council to disclose information which did not add anything to what was already public knowledge.
  • Decision 080/2018 Mr D and North Ayrshire Council
    Mr D asked the Council about health care provision. The Council failed to respond to the request or request for review within the FOI timescales.
  • Decision 081/2018 Gary Hughes and Aberdeen City Council
    This case was about taxi testing - in particular, how many vehicles were failed by the tester but subsequently "passed" by other staff. The Council originally told Mr Hughes the answer was zero. After seeing the taxi test systems on site, we found that the Council hadn't located all of the information it held when responding to Mr Hughes. We ordered it to carry out further searches and issue a new response.
  • Decision 082/2018 Mr C and East Renfrewshire Council
    Mr C asked the Council about a business case. The decision finds that the Council failed to respond to Mr C's request for review within the FOI timescale.
  • Decision 083/2018 Ms L and Edinburgh College
    The College was asked for statistical information about students who had enrolled while being on the sex offenders register. We agreed with the College that individual students could be identified from the numbers, which meant that the numbers were personal data. We also concluded that the personal data was exempt from disclosure under the FOI Act.

Resolved cases

We resolved seven cases in May without the need for a formal decision. In four of these cases, the authority disclosed all the information covered by the request after the case had been appealed to us and the requesters withdrew their appeal. (In one case, the requester was happy to withdraw after the authority disclosed information, on our advice, that it had previously treated as "sensitive").

In two cases, requesters had appealed to us on the basis that they had not received a response. In one case, it looked like the response had been sent, but had gone missing. The authority re-sent the response and the requester withdrew their appeal.

In the other case, the authority only responded after the appeal had been made to us. The requester was not happy with the response they eventually received - so they withdrew their appeal into the failure to respond and made a new appeal based on the actual response.

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