Decisions Round-up: 05 to 09 August 2019

In this week's DRU there are two important, but less commonly encountered, learning points. The first relates to information held by councils on behalf of councillors, and gives some guidance on what information is and isn't covered by the FOI Act. The second is about one of the lesser-known FOI exemptions - where information is prohibited from disclosure by other legislation.

Learning points:

  • Information held on behalf of Councillors is not covered by FOI
    Councillors are elected members of councils, and although FOI applies to Scottish councils, councillors are not Scottish public authorities in their own right. In practice, this means that there is a difference between information about activities councillors do as part of the business of the council (which is covered by FOI), and information about councillors' constituency or party political activities (which is not covered by FOI). We commented on this in Decision 111/2019, and found that communications relating to constituency business are not covered by FOI, even where those communications are with non-constituents,
  • Information can be prohibited from disclosure
    Section 26(a) of the FOI Act allows a Scottish public authority to withhold information where disclosure is prohibited by other legislation. The exemption is not subject to the public interest test. So, if any other Scottish or UK legislation prohibits disclosure of particular information, the authority can withhold it, even if there are strong public interest arguments in favour of disclosing it. The Act governing the investigations of the Scottish Public Services Ombudsman contains a prohibition of this kind, which we considered in Decision 112/2019.

Decisions issued:

  • Decision 111/2019 Mr X and City of Edinburgh Council
    The Council was asked for information about the Meadowbank Stadium site. The Council provided some information, while stating that it didn't hold other information. An appeal was made to the Commissioner, questioning whether the Council held more information. We were satisfied that the Council had carried out appropriate searches and disclosed all the information it held.
  • Decision 112/2019 Ms Y and Scottish Public Services Ombudsman (SPSO)
    The SPSO was asked for the name of a social work adviser in connection with a complaint. The SPSO withheld the information on the basis that disclosure was prohibited by other legislation (the Scottish Public Services Ombudsman Act 2002). The Commissioner investigated and found that SPSO was entitled to withhold the information, on the basis of the prohibition it had identified.

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