Decisions Round-up: 10 to 21 October

A packed round up this week, with 15 decisions issued in the last fortnight, and advice on everything from drafting confidentiality clauses, to applying the public interest test:

Learning points:

  • Fully consider the public interest test
    The public interest is at the heart of FOI. Both the FOI Act and the Environmental Information Regulations (EIRs) require that, in most cases, information must be disclosed if disclosure is in the public interest. Public authorities must therefore ensure that the public interest test is fully and properly considered whenever it applies. In Decision 220/2016 we found that some information falling within an EIR exception should be disclosed in the public interest. Our public interest briefing has more guidance on this important test.


  • Don't forget the FOI timescales - at request and review
    We've issued 16 decisions over the past two weeks. Disappointingly, in six of those cases, public authorities failed to comply with the timescales laid down by the FOI Act, meaning that requesters had to wait even longer to get information to which they were entitled. In Decision 211/2016 the requester had to wait almost 19 weeks for a substantive response - this is clearly unacceptable.



  • Is your environmental information schedule of fees detailed enough?
    There's no equivalent of the £600 limit when responding to requests under the Environmental Information Regulations. Public authorities can charge a "reasonable amount" for making the information available - provided the fee is made in line with their published schedule of fees. In Decision 208/2016, we were concerned that the schedule of fees did not give enough information to requesters. We required the authority to include more information about their charges.


  • Is the information the requester wants publicly available?
    Under the Environmental Information Regulations, an authority doesn't have to disclose information if it's already publicly available and easily accessible to the requester (regulation 6). In Decision 209/2016, the authority relied on regulation 6. However, the information published on its website didn't correspond with what the requester had asked for. The decision underlines that any authority relying on regulation 6 must make sure that the information is identical to or, at the very least, substantially similar to the information the requester has asked for. Authorities also need to give requesters accurate and precise details of where the information can be found.


  • Do confidentiality clauses comply with the Section 60 Code?
    Decision 210/2016 looked at a contract which contains a (recently agreed) wide-reaching confidentiality clause. We agreed that disclosing the financial information in question would be a breach of confidence, but reminded authorities that the Scottish Ministers' Code of Practice (the Section 60 Code) makes it clear that authorities should not agree to hold information in confidence unless it is genuinely sensitive in nature. The Commissioner can issue a practice recommendation should where an authority agrees a confidentiality clause which is contrary to the guidance in the Section 60 Code.


Decisions issued:

  • Decision 205/2016 Marc Ellison and Police Scotland
    Following the tragic incident which led to the deaths of John Yuill and Lamara Bell on the M9, the Police introduced a system for recording adverse incidents or "near misses" to highlight and learn from potential weaknesses. Mr Ellison asked the Police for information about these. The Police Scotland disclosed some information, but withheld the reports and the spreadsheets that Mr Ellison had requested. We decided that the information could be disclosed, provided any information capable of identifying individuals was redacted.


  • Decision 207/2016 Mrs X and South Lanarkshire Council
    Mrs X asked about the way an accident had been reported. The Council disclosed some information, but withheld information which it considered to be confidential and covered by litigation privilege. Mrs X was clear that she did not intend to take legal action, but simply wanted to be sure that the accident had been properly reported, to avoid the same thing happening again. However, we accepted that, in this case, the information had been prepared in contemplation of litigation (as well as for other purposes) and that the information was exempt from disclosure.


  • Decision 208/2016 The Clyde Docks Preservation Initiative Ltd (CDPI) and Glasgow City Council
    This decision looked at whether a fees notice issued by the Council under the Environmental Information Regulations was reasonable. We were satisfied that the fees notice was reasonable, but concluded that the Council should have given more assistance to the CDPI. We also questioned whether the Council's schedule of fees was sufficiently detailed.


  • Decision 209/2016 Nick Kempe and Loch Lomond and The Trossachs National Park Authority (the NPA)
    Mr Kempe asked for information produced for briefing sessions about "Your Park" camping development proposals for the national park. NPA withheld the information under a number of different exceptions in the Environmental Information Regulations. We ordered the NPA to disclose most of the information, but agreed that commercially sensitive information should be withheld.

    NPA had argued that some of the information Mr Kempe had asked for didn't have to be disclosed because it was already in the public domain. We disagreed, finding that the information in the public domain wasn't the same as the requested information.


  • Decision 210/2016 Dawn Fraser and Caledonian Maritime Assets Ltd (CalMac)
    Ms Fraser asked CalMac about the conditions attached to the lease of the ferry used for the Stornoway to Ullapool crossing. CalMac disclosed some of the information Ms Fraser had asked for. After an investigation, we accepted that the information which CalMac withheld was confidential and exempt from disclosure.


  • Decision 211/2016 Tommy Kane and the Scottish Ministers
    Mr Kane asked about meetings attended by Nicola Sturgeon, John Swinney and Alex Salmond with Sir Angus Grossart, chairman of the merchant bank, Noble Grossart Ltd. The Ministers initially failed to respond to the requests, but disclosed some information on review. Mr Kane expected the Ministers to hold other information, but we were satisfied that the Ministers had located all of the information they held. We criticised the Ministers for the length of time they had taken to respond to Mr Kane's requests.


  • Decisions 212/2016 and 215/2016 Angus Pattison and East Dunbartonshire Council
    In both of these cases the Council failed to respond to requests for review in line with the FOI timescales. Both requests were about the Bears Way cycleway in Bearsden and Milngavie. The Commissioner ordered the Council to respond to the requests for review.


  • Decision 213/2016 Mr Y and Police Scotland
    Mr Y asked a number of questions about a police vehicle which had been involved in an incident - what was its registration number, was it carrying firearms, etc. The Police initially refused to confirm or deny whether it held the information. However, during the investigation, the Police disclosed some information to Mr Y. This led to us finding that the Police shouldn't have refused to confirm or deny whether they held the information when responding to Mr Y's request.


  • Decision 214/2016 Peter Low and the Scottish Public Services Ombudsman (the SPSO)
    The request in this case was for specific complaints correspondence held by the SPSO. The Scottish Public Services Ombudsman Act 2002 makes it illegal for the SPSO to disclose the information. We therefore accepted that the information was exempt from disclosure under section 26 of the FOI Act.


  • Decision 216/2016 Paul Hutcheon and Scottish Enterprise
    In 2006, given his business connections with Scotland, Donald Trump was invited to become a member of the "GlobalScot" business network. Nicola Sturgeon later withdrew Mr Trump's membership. Mr Hutcheon asked Scottish Enterprise for the communications which had taken place with the Scottish Government about Mr Trump's GlobalScot status. Scottish Enterprise disclosed some information after review and then during the investigation. We were not satisfied that the remaining information would prejudice the effective conduct of public affairs and ordered Scottish Enterprise to disclose it to Mr Hutcheon.


  • Decision 217/2016 Suzanne Kelly and VisitScotland
    Ms Kelly asked for correspondence about Trump International Golf Links Scotland. VisitScotland refused to comply with the request, as doing so would cost over £600. We accepted this, but also found that VisitScotland had failed to respond to Ms Kelly's request and request for review in time.


  • Decision 218/2016 Mr A and the Scottish Prison Service (the SPS)
    Mr A asked the SPS about the costs of tobacco products on sale to prisoners. The SPS disclosed all of the information Mr A had asked for, except for how much the SPS paid the supplier for the products. We agreed that disclosing this information would substantially prejudice the supplier's commercial interests and that the information did not have to be disclosed.


  • Decision 219/2016 John Cairney and the Scottish Prison Service (the SPS)
    Mr Cairney asked the SPS about anonymous letters it had received and what action it had taken about the letters. This decision finds that the SPS failed to comply with Mr Cairney's requirement for review within the timescale set down by the FOI Act.


  • Decision 220/2016 William Chisholm and Scottish Borders Council
    We've issued a number of decisions about the waste management contract the Council entered into with New Earth Solutions Ltd (NES). Following the termination of the contract, the Council had to "write off" £2,000,000 worth of public money. Mr Chisholm asked the Council about the costs involved in terminating the contract and for details of any "lessons learned" by the Council. The Council provided Mr Chisholm with a breakdown of costs, but withheld information regarding the "lessons learned" on the basis that they were internal communications and were excepted from disclosure under regulation 10(4)(e) of the Environmental Information Regulations.

    We agreed that the "lessons learned" were internal communications but, after considering the public interest, decided that some of the information should be disclosed to Mr Chisholm.


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