Decisions Round-up: 10 to 14 June 2013

 We published seven decisions this week.


Key messages:

  • Ensure you have met all necessary conditions when applying a provision under FOI

You can avoid having your arguments for applying a provision rejected by checking that you have considered all the conditions which relate to that provision. For example, the provision in s18 permits authorities to refuse to confirm or deny whether they hold information in certain circumstances - but they must also say which exception(s) would apply if they did hold it. In Decision 100/2013, Minister omitted this vital step. In Decision 107/2013, however, the SLCC explained that, if it held the information being requested, it would be exempt from disclosure because of the effect of disclosure on its investigative functions (and therefore on the effective conduct of public affairs).

(Following the introduction of the Freedom of Information (Amendment)(Scotland) Act 2013, authorities may now, under certain circumstances, refuse to confirm or deny if they hold personal information.)

  • If you are withholding information you must tell the applicant

Both FOISA and the EIRs require that, if you want to withhold information from an applicant under any of their provisions, you must issue them with a notice telling them this, and explaining what provisions you believe apply. Failing to do this is a breach of legislation, and of the applicant's rights. Ensure you issue proper refusal notices which explain reasons for refusals, and advise applicants of their rights to review and appeal.

  • Information relating to preparations for a court case unlikely to be released

Although she will always consider fully the public interest arguments for and against disclosure, the Commissioner will rarely order a public authority to disclose information which would reveal details of its preparations for a live court case - this ensures all parties to a court action are in the same position.

  • Timing can be critical

When seeking information about Government Policy, timing is often a critical factor in determining whether it is in the public interest to release it or not. While a policy development process is underway, there will often be stronger public interest arguments in withholding this type of information - however, once the policy decisions are made, the sensitivity of the information frequently declines over time, and the balance of the public interest arguments may shift in favour of disclosure.

  • Ensure provisions are made for staff absence

Your procedures for dealing with FOI requests must take into account that there will be times when the usual staff are not available to deal with request. This could be for a range of reasons, such as sickness or holidays. Sometimes these absences will be known about in advance, other times they are unexpected. Bear in mind that FOISA does not include any provision to extend deadlines for dealing with requests or requests for review - they must continue to be dealt with within 20 working days. Ensure your procedures include resilience to deal with staff absence.

  • FOISA deals with what is held, not what should be held

When you make a request for information, remember that the authority should consider it in light of what it actually holds. This may not be the same as what you think the authority should hold. The authority is not required to create new information to satisfy your request - and the Commissioner cannot rule on whether an authority should hold information, only on whether it is held and should be released.

Summary of decisions:

Mr Sloan asked Ministers for a list of solicitors and other legally qualified individuals who had given them legal advice on whether the Scottish Parliament had authority to conduct a referendum on Scottish independence. Ministers used section 18(1) to neither confirm nor deny whether this information existed or was held. When Mr Sloan appealed to us, we found that Ministers had failed to apply the s18(1) provision correctly - they had not told Mr Sloan what exemptions they considered that the information, if held, would be exempt under. The Commissioner found that their refusal was technically deficient and required Ministers to issue a notice which complied with the requirements of the law.

Ms Christie asked the Council for internal communications it held about a specific planning application which was the subject of a live court action. Although the Council provided Ms Christie with some information, she felt that she had not received everything she was looking for, and appealed to us. During the investigation, it became clear that the Council was, in fact, withholding some information from Ms Christie but had not told her this. The withheld information would have disclosed details of the Council's preparation for the court case, which would prejudice its ability to prepare for the case. The Commissioner found that the Council was entitled to withhold it, but should have told Ms Christie that it was withholding information from her, and why.

Mr MacKenzie asked Ministers for information (excluding consultation responses) discussing the views of religious organisations on same-sex marriage. Ministers provide some information but Mr MacKenzie felt that it was incomplete. When he appealed to us, Ministers confirmed they did hold more information, but were withholding it because it related to formulation of Government Policy. However, they acknowledged that some information was already in the public domain. The Commissioner accepted that release of the remaining information at that point in time would harm the policy making process, as an announcement on same sex marriage was planned within days. She found it was not in the public interest to order release.

Mr Hepburn's request for review to Education Scotland went unanswered, so he applied to the Commissioner for a decision. She found that Education Scotland had failed to comply with its obligations under FOISA, but as the authority responded during the investigation, no further action was required of them.

Mr Hardie requested a review of the Council's response to an information request, but the Council did not respond. When we investigated, the Council acknowledged that it had not responded to Mr Hardie's requirement for review on time. It explained this was due to an administrative error, which occurred during a period when staffing in the FOI team was temporarily organised. The Council went on to respond to Mr Hardie.

Mr Peat asked SLCC whether anyone had raised a complaint against a specific law firm. SLCC refused to confirm or deny whether it held relevant recorded information. It explained that, if it held this information, its release would hamper the SLCC's ability to carry out independent and impartial investigations, which is not in the public interest. The Commissioner accepted these arguments.

Mr Wardrope asked the SPPA for information about a change made to specific pension guidance. The SPPA gave some information to Mr Wardrope, claiming it did not hold other information he had asked for. When Mr Wardrope appealed to us, he claimed the authority should hold more information, and explained why he felt that way. However we found that the SPPA had given Mr Wardrope everything it held which fell within the scope of his request.

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