Decisions round-up: 10 to 14 March 2014

We published eight decisions this week.

Key messages:

  • Examine the information that has been requested as soon as you can

Remember that most exemptions and exceptions can only be applied if they relate to the specific information that has been requested. For that reasons, you should examine the information which you have been asked for, in detail, as early as you can. Only by doing this can you assess whether any exemptions or exceptions apply to it.

  • Don't apply exemptions and exceptions "blanket fashion"

Where some (or even most) of the information in a document which you have been asked for can be withheld, you must still provide the information which is not exempt or excepted. This means you need to assess the information in details and redact the exempt information properly, rather than withhold the document in its entirety.

  • Make sure your arguments are relevant to the case in hand

If you are going to make arguments for withholding information, test them to ensure they actually apply. In Decision 054/2014, SCSWIS suggested that the applicant use its dedicated appeal procedure to contest its findings. However, our investigation found that the complaint in question pre-dated the cut-off date in the appeal process. SCSWIS could have checked and recognised that this argument could not be applied in this case.

  • The duty to advise and assist doesn't stop when you issue a response

If it's clear from a request for review that an applicant has misunderstood something about the information you have provided, to the point that they don't accept that they have received what they asked for, you should offer additional advice to explain why the information you have provided fulfils the request.

  • Make sure your searches are adequate

This is a common learning point in Decisions Round-up. Make sure you conduct adequate searches. If you don't, you may find yourself dealing with a time-consuming appeal which could have been easily avoided.

  • Look out for information requests included with other correspondence

Sometimes applicants will send correspondence which covers a number of issues, including a request for information. It's important that your staff are trained to look out for this. The clock starts ticking from the point you receive the request -not from the point when you recognise it. We recommend that applicants consider keeping requests separate from other correspondence with an authority - it can help the authority deal with it with more swiftly.

  • Authorities won't always hold what you expect them to

Sometimes it's surprising when an authority doesn't hold the information you expect it should. That said, the authority should provide you with evidence that they have searched properly and explain why they don't hold what you have asked for. And of course, you have the right to request a review and appeal to the Commissioner if you are not happy with the authority's response. Bear in mind that the Commissioner can only rule in such cases on whether the authority is correct in saying it doesn't hold the information. If she does find that the information is held, she can also rule on whether it should be released, but she cannot compel an authority to hold information if it doesn't do so.

  • Providing "particulars" on an applicant's right to appeal

Section 21(10) of FOISA requires you to provide an applicant with "particulars" of their right to appeal to the Commissioner when you respond to their request for review. FOISA does not specify what these particulars should be, but you must provide the applicant with sufficient information to allow them to exercise their right to appeal. As a general rule this should include, as a minimum: confirmation that this right exists; how and where the Commissioner may be contacted; and the fact that an application to the Commissioner must be made within six months.

Summary of decisions:

Mr K asked the SPS for information about a prison rule and about issuing consumables to prisoners. The SPS provided some information and told Mr K it didn't hold the remainder. Mr K sought a review on the basis that he believed the SPS held information it hadn't given him, and the SPS provided more information. One point of Mr K's challenge was the SPS's contention that it didn't hold some of the information in relation to private prison operators. However, the Commissioner found that the contract between the SPS and the private prisons did not require the private prison to provide the information Mr K wanted to the SPS.

Mrs Thompson asked the Council for a copy of Resolution Complaints Panel reports it had prepared. Initially, the Council withheld the reports claiming they were excepted in their entirety under the EIRs. During the investigation, the Council disclosed a redacted version of the reports to Mrs Thompson. The Commissioner found that the Council was entitled to withhold the redacted information, given that its disclosure would prejudice substantially the course of justice, or breach data protection principles. However, she found that the information which was disclosed during the investigation should have been disclosed earlier.

  • Decision 054/2014 - Company X and Social Care and Social Work Improvement Service (SCSWIS)

Company X asked SCSWIS for information relating to a complaint it had received about it. SCSWIS initially withheld the information. When asked for a review, SCSWIS disclosed a summary of the complaint but withheld the rest on the basis that its release would substantially harm its ability to conduct its function to regulate care providers. It claimed that the company could use SCSWIS's own formal appeal process, rather than FOISA, to access information. On investigation, the Commissioner found that the appeal route suggested was not open to the company - but that the exemption could be applied and the public interest was in favour of withholding the information. She also found that SCSWIS had not been entitled to "stop the clock" while awaiting confirmation that a solicitor who had contacted it was acting for the company - as it was clear from the beginning that this was the case.

Mr A asked the SPS about the quantities of items bought from suppliers and sold in the prison canteen on particular dates in July 2013. Some of the information released by the SPS to Mr A was illegible. The Commissioner accepted that the SPS had given Mr A everything it held, but commented that the SPS could have been more helpful in responding to the request. In particular, there was a misunderstanding about a date stamp on the information which SPS could have cleared up, possibly avoiding an appeal to the Commissioner.

Mr Roulston asked the Central Scotland Joint Police Board for information about a misconduct case involving a senior police officer. The Board has been succeeded by the SPA, who provided some information to Mr Roulston, following a review. When Mr Roulston appealed, the SPA accepted it held further information, but withheld it on the basis that it was personal data. The Commissioner found that the SPA should have identified this information earlier but that it was entitled to withhold it.

Mr X asked the SPS for information about a review of prison visit booking arrangements. He did not receive a response, so asked for a review. The SPS told Mr X it did not hold the information he had asked for. However, during the investigation, the SPS found and disclosed some information which was relevant. The Commissioner found that the SPS had not provided Mr X with all relevant information when he asked for it, and that it had failed to respond within the required timescale.

Mr Mackay asked the Council for information about the appointment of panel members under the Curators ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001. The authority failed to respond to a request for review within statutory timescales, and the Commissioner has ordered the Council to comply with the request for review.

Mr Johnson asked Ministers for correspondence from the First Minister to the Royal and Ancient Golf Club since May 2007. The Ministers disclosed information to him, but he wasn't satisfied the Ministers had disclosed everything they held. After a review he appealed to the Commissioner. Ministers provided evidence that thorough searches had been carried out, and the Commissioner accepted that the Ministers held no further information.

Mr G asked the SPS for advice or guidance on the application of Rule 123 of the Prison Rules 2011. The SPS provided some information, but Mr G was not satisfied he had received everything the SPS held. Following his appeal, the SPS found more information during the investigation, which it supplied. The Commissioner also found that the SPS had failed to inform Mr G properly about his rights, by omitting to provide him with information about making an appeal i.e. contact details of the Commissioner's office and the deadline for making an appeal.

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