Decisions Round-up: 7 to 18 December 2015

The importance of ensuring that decisions to refuse requests can be properly explained and evidenced is a feature of the last round-up of 2015. If an authority is unable to make a clear case for non-disclosure, there's a good chance that the information should just be disclosed…


Key messages:


  • Authorities should give reasons for their decisions
    If an authority withholds information because it believes the consequences will be harmful, it should explain what harm would occur and why it's likely. In Decision 187/2015, the authority didn't explain why any of the harm it anticipated was likely to occur, and we ordered it to disclose the information. On the other hand, in Decision 189/2015, the authority explained why disclosure would be harmful, and we accepted this.


  • Is the information truly confidential?
    It can be difficult to balance the requirement to preserve confidentiality and the requirement to disclose information under FOI. In Decision 185/2015, the authority argued that information was covered by a commercial confidentiality agreement, but we found that this was not, in itself, enough to determine whether the information was confidential. Confidentiality agreements are not a way of bypassing FOI.


  • Are there other reasons to protect confidential information?
    In another decision, 186/2015, we recognised that social workers operate in an environment in which everyone they are working with needs to be sure that the information they share will be dealt with in confidence. Although the decision doesn't specifically deal with the confidentiality exemption, we agreed that information from a deceased person's social work record should not be disclosed. Disclosure would prevent social workers from doing their jobs so would harm the effective conduct of public affairs.


  • Disclose what you can
    If an authority receives a multi-part request, it should always see if it can provide some of the information even if part of it is exempt from disclosure (see Decision 189/2015).


  • Talk to each other!
    Where a request will cost too much, the authority should provide advice on how it might be narrowed down to bring it within the cost limit (if this is possible). However, sometimes the authority needs more information from the requester to understand what information would be most relevant to them. If the requester doesn't engage with the authority (as happened in Decision 188/2015), there may be little that the authority can do to provide advice and assistance on narrowing the request.

Decisions issued:

  • Decision 185/2015 Mr Bill Chisholm and Scottish Borders Council
    Mr Chisholm asked why the Council had to provide financial security to the Scottish Environment Protection Agency in 2012 on behalf of a private company. The Council withheld the information, arguing that it was commercially confidential and covered by a confidentiality agreement. We did not accept this, and ordered disclosure. 


  • Decision 186/2015 Mr X and East Dunbartonshire Council
    Mr X asked for a report on the assessment of his deceased mother's free personal care. The Council refused to disclose the information. We accepted that the Council was entitled to withhold the information from Mr X, in line with several other decisions which have found that information from the social work records of deceased persons should be withheld.


  • Decision 187/2015 Mr Andrew Denholm and the Scottish Qualifications Agency (SQA)
    The SQA was asked for its draft deficit and draft budget for 2015/16. It refused to provide the information, on the basis that disclosure would substantially prejudice the effective conduct of public affairs. However, it failed to explain why disclosure would cause real harm to its operations, and we ordered disclosure.


  • Decision 188/2015 Ms Rosy Barnes and the City of Edinburgh Council
    Ms Barnes asked for information about the Friends of Craighouse, including information containing references to named individuals. The Council informed Ms Barnes that her request was manifestly unreasonable and a response would not be provided.

    The Environmental Information (Scotland) Regulations allow requests for environmental information to be refused if the request is manifestly unreasonable. Ms Barnes' request covered a large number of emails, and we agreed that the request was manifestly unreasonable because of the staff time required to respond.


  • Decision 189/2015 Mr John Eustace and Glasgow City Council
    Mr Eustace asked for the terms and conditions of a recent contract for the provision of advertising sites within the Council area. The Council provided information on the length of contract and the number of sites, but withheld information on the financial benefits it received, stating that disclosure would be likely to harm its own commercial interests and those of the company. We agreed that the information should be withheld, for the reasons given by the Council.


  • Decision 192/2015 Mr Andy Philip and the Scottish Ministers
    The Ministers were asked for information about correspondence and advice on genetically modified technology in agriculture. We found that the Ministers failed to respond to his request and request for review within the FOI Act's timescale.

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