Decisions Round-up: 8 to 12 February 2016

The Data Protection Act tells us that personal data can be disclosed where the individual has consented to disclosure. What does this mean in practice for disclosures under FOI? This week's Round-up highlights a couple of cases (including one involving a member of the royal family).

Key messages:

  • Consent to disclose personal data must be fully informed and specific
    Occasionally, a requester will provide evidence that another person has agreed that their personal data can be given out. However, authorities must be sure that the person giving consent is aware that disclosure under FOI is disclosure into the public domain, not just to the person making the request.

    In Decision 023/2016 the requester had a mandate authorising the authority to give them someone else's personal information. However, we did not accept that this was the same as consenting to disclosure in response to an FOI request.

    Similarly, in Decision 022/2016, we pointed out that giving or refusing consent involves the individual actively expressing their wishes. We did not accept an assumption that the person who provided the information (in this case HRH the Prince of Wales) would always refuse consent to disclose the type of information covered by the request. There was no evidence that Prince Charles had been asked to consent specifically to release of the information, and we found that this was required for consent, or refusal of consent, to be meaningful.
  • Avoid blanket exemptions
    When an exemption is applied across a range of documents, it's important to be sure that it applies to all of the information that is being withheld. You must be able to show why the exemption applies to each piece of information. In Decision 025/2016, we found that the reasons given for withholding information did not apply to some of the information.
  • Publish when you can
    Sometimes information loses its sensitivity once a particular event has passed. If that happens, it's good practice to make the information available, especially where you know there is a public interest in disclosure, or that the information has previously been requested. This is what happened in Decision 020/2016.

Decisions issued:

  • Decision 019/2016 Laura Twaddell and South Ayrshire Council
    Ms Twaddell asked for monitoring and evaluation information relating to a grant made to a specific Community Interest Company. The Council disclosed some information, told Ms Twaddell it did not hold other information and withheld personal information and bank statements.

    We accepted that the Council was entitled to withhold personal data but found that it should have provided other information to Ms Twaddell (which it did during the investigation).
  • Decision 020/2016 Tom Taylor and East Renfrewshire Council
    Mr Taylor asked for legal advice relating to the newly adopted Scheme of Establishment for Community Councils. The Council withheld its legal advice. It later published it after the first elections under the new scheme had been carried out. We agreed that the Council had been entitled to withhold the advice at the time of the request.
  • Decision 021/2016 Dawn Fraser and Caledonian Assets Maritime Ltd
    Ms Fraser asked Caledonian Maritime Assets Ltd (CMAL) for information about the leasing agreement for the vessel MV Loch Seaforth. We found that CMAL failed to respond to her request for review within 20 working days, and ordered it to carry out a review.
  • Decision 022/2016 Marc Ellison and Board of Trustees of the Royal Botanic Garden Edinburgh (RBGE)
    Mr Ellison asked for correspondence between HRH Prince Charles and RBGE since January 2007.

    RBGE considered Mr Ellison's request under the FOI Act, and refused to provide the information. During the investigation, we told RBGE that Mr Ellison's request should have been handled under the Environmental Information (Scotland) Regulations and not under the FOI Act. RBGE then argued that the information was excepted from disclosure under regulation 10(5)(f), on the basis (amongst other things) that Prince Charles had not consented to disclosure and that his interests would be substantially prejudiced should his correspondence with RBGE be disclosed. We found there was no evidence that Prince Charles had been asked to consent and diagreed that disclosure would prejudice his interests. We ordered RBGE to disclose the correspondence.  
  • Decision 023/2016 Mr N and East Lothian Council
    Mr N asked for information relating to the Council's treatment of an individual. The Council refused to provide the information, as disclosure would breach the data protection principles.

    We accepted that the information was sensitive personal data and could not be disclosed under the FOI Act. We found that the Council should have notified Mr N that it did not hold some of the information he had asked for.
  • Decision 024/2016 Mr T and City of Edinburgh Council
    Mr T asked for confirmation of whether revenue was generated from advertising in Edinburgh by City Centre Posters (CCP). The Council told Mr T that it did not hold this information. However, the Council did hold relevant information which it did not identify until our investigation, relating to another company which was known to be the same entity as CCP.

    We criticised the Council for handling the request in a way which made it appear evasive: it was aware that the two companies were in fact the same entity. As the information was available to Mr T by that time, we did not require the Council to take any further action.
  • Decision 025/2016 Tom Gordon and the Scottish Parliamentary Corporate Body (SPCB)
    Mr Gordon asked for information relating to the Register of Interests for Alex Salmond MSP. The SPCB withheld the information. During our investigation, it located one more document, which it also withheld. We accepted that some information was exempt from disclosure but found that some exemptions were wrongly applied, and ordered disclosure.
  • Decision 026/2016 Company X and the Scottish Ministers
    Company X asked for information about Zero Waste Scotland funding. The Ministers disclosed some information and stated that they did not hold any further information. They advised the requester where information might be obtained. After investigating, we accepted that the Ministers did not hold any more information covered by the request.
  • Decision 027/2016 Tommy Kane and the Scottish Ministers
    Mr Kane asked the Ministers for correspondence with Ineos about any financial support they had given Ineos or about other funding Ineos could access.

    The Ministers disclosed some information, but withheld other information, on the basis that disclosure would substantially prejudice the effective conduct of public affairs. Following an investigation, we accepted the Ministers' arguments and agreed the information should be withheld.

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