Decisions Round-up: 10 to 14 February 2020

This week, our Decisions Round-up reminds us that not all requests to the national prosecution service, COPFS, are excluded from the Commissioner's investigations. In one case, information relating to staff health and safety policies wasn't excluded. We also look at a request that was incorrectly handled as an FOI instead of an EIR, and a case where the "vexatious" provision was used where the issuing of a fees notice may have been more appropriate. Also, we remind authorities to avoid blanket applications of exemptions to information "types". Exemptions should be used on a case-by-case basis according to the actual information requested.

Learning points:


  • The Commissioner isn't excluded from investigating all requests made to COPFS
    The FOI Act doesn't permit the Commissioner to investigate cases where the information requested is held by the Lord Advocate as head of the systems of criminal prosecution and investigation of deaths in Scotland. This will include a lot of the information held by the Crown Office and Procurator Fiscal Service, Scotland's national prosecution service. It won't include everything, however - in Decision 024/2020, we looked at a request for information about health and safety policies (which applied equally to all staff, whether directly involved in prosecution or the investigation of deaths or not) and concluded that this wasn't covered by the exclusion.


  • Avoid restrictive interpretations of requests
    In interpreting an information request and deciding on its scope, it's important for an authority to take a "plain English" approach and not limit the scope by interpreting ordinary words too narrowly. We found this had happened in Decision 027/2020.


  • Remember when to use FOI and when to use EIR
    The Environmental Information Regulations define what's meant by "environmental information" and lay down rules for dealing with it. This means that requests for environmental information must be handled differently than requests under the FOI Act. There are good reasons for making sure the right set of rules is applied - as we required the authority to do in Decision 030/2020.


  • Consider the actual information requested before deciding if an exemption/exception applies
    Exceptions under the Environmental Information Regulations (and exemptions under the FOI Act) should always be applied on a case-by-case basis, looking at the actual information requested against the requirements of the exception under consideration. It's not appropriate to say that a particular type of document (such as a draft commercial lease) qualifies for an exception simply because it happens to be of that type. In Decision 031/2020, for example, we found that a draft lease (which largely followed a standard form) didn't meet the requirements for commercial confidentiality


  • Vexatious, or costly? It's important to use the right provision
    Although an requester's personal circumstances may be relevant in considering whether a request is vexatious, it's still important to ensure that this is the right approach in the circumstances - and that the provisions relating to vexatious requests are the ones that actually fit in that particular case. In Decision 032/2020, we weren't satisfied that the request could be described as vexatious. We also noted that the cost of complying with the request could have been dealt with by other means, e.g. by issuing a fees notice.


Decisions issued:


  • Decision 021/2020 Transport Scotland
    Transport Scotland was asked about remedial notices issued to Scotrail. Having failed to answer part of the request, it then failed to identify all the relevant information at review. During our investigation, Transport Scotland found and released further information. We found that it had failed to provide all the information it held until after our investigation had begun, but were satisfied that it had disclosed all the relevant information it held by the end of the investigation.


  • Decision 022/2020 Scottish Water
    Scottish Water was asked about water connections in Fife. It provided some information, explaining that it did not hold other information. During the investigation, Scottish Water acknowledged that it held information for part of the request. We found that it should have informed the requester that it held the information and required a new review outcome.


  • Decision 023/2020 Scottish Ministers
    The Ministers were asked for information about Peter Murrell's (the First Minister's husband) use of government transport and the costs of the travel. The Ministers provided information about his air travel, but stated that they didn't hold any information regarding car use. We investigated and were satisfied that the Ministers didn't hold any further information.


  • Decision 024/2020 Crown Office and Procurator Fiscal Service (COPFS)
    COPFS was asked for the Health and Safety Policy/Procedure for Lone Working applicable to employees in its Kirkcaldy Office, which the COPFS refused to provide, relying on the exemption relating to health and safety. Although the COPFS argued there was no right of appeal to the Commissioner as the information was held by the Lord Advocate as head of the systems of criminal prosecution and investigation of deaths, we did not accept this. We found that COPFS had been entitled to withhold some, but not all, of the information on the basis that disclosure would endanger health and safety.

  • Decision 025/2020 Highland Council
    The Council was asked for information about funding for Gaelic Medium Education, broken down into a number of categories. We found that it failed to respond to the request, or the request for review, within the 20 working day timescales.


  • Decision 026/2020 South Ayrshire Council
    The requester asked for information about 3G sports pitch revenue. We found that the Council failed to respond to the request (or the request for review) within the timescales allowed.


  • Decision 027/2020 Scottish Ministers
    The Ministers were asked for any analysis they'd carried out on Scotland's eligibility for EU membership since October 2012. They withheld information on the basis that it related to the formulation of Scottish government policy. During the investigation, we concluded that the Ministers had interpreted the scope of the request too narrowly. We required them to carry out additional searches using a broader interpretation of the request, and then to do another review.


  • Decision 028/2020 Scottish Environment Protection Agency (SEPA)
    SEPA was asked for correspondence with a third party which it had previously withheld during a previous request. SEPA withheld the information again on the basis it was personal data and had been provided to SEPA in confidence by the third party. We accepted that SEPA was entitled to withhold the information.


  • Decision 030/2020 Transport Scotland
    Transport Scotland was asked about a new ferry terminal and pier at Ardrossan Harbour. Handling the request under the FOI Act, Transport Scotland withheld the information. We found that Transport Scotland had considered the request under the wrong legislation, and should have been considered it under the Environmental Information Regulations. We ordered them to reconsider the request under the right regime. 


  • Decision 031/2020 Fife Council
    The Council was asked for a draft lease for the use of a public park by a community football club. It withheld the information as commercially confidential, explaining that disclosure would hinder future negotiations. It released a small amount of information during our investigation, which he decided should have been supplied at the time of asking. We also found that the rest of the draft lease was wrongly withheld.


  • Decision 032/2020 University of the Highlands and Islands
    The University refused to respond to a request on the basis that it was vexatious. We weren't satisfied that the University had demonstrated that the request was vexatious, and required it to give the requester another response.

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