Decisions Round-up: 11 to 15 April 2016

This week's round-up features lots of good practice advice. From disclosing information quickly, to explaining clearly why information is withheld, to undertaking a sampling exercise when considering costs; following good practice should help FOI run more smoothly.

Key messages:

  • Disclose information whenever you can 
    During the investigation that led to Decision 082/2016, the authority recognised that the project which was the subject of a withheld report had been concluded and its findings adopted. The authority then demonstrated good practice by quickly providing the report to the requester without further delay.


  • It's important to provide advice and assistance
    Although authorities don't have to comply with FOI requests where it would cost them , they must still provide reasonable advice and assistance to the requester. The same applies to requests for environmental information which are "manifestly unreasonable" because of their size. Usually, the advice will be how to make a new, more focused request. In Decisions 078/2016, 079/2016 and 080/2016, we found that the authority hadn't done this, and required it to put this right.

    In Decision 077/2016, the authority directed the requester to redacted ("blacked out") information on its website. The requester wasn't sure which exemptions applied to each part of the redacted document. Where published documents have been redacted, it is good practice for authorities to provide requesters with a schedule explaining the exemptions or exceptions.


  • Provide reasons and evidence to support your decision
    In Decision 079/2016, the authority didn't provide us with evidence to show that disclosing the information would take as much time as it claimed. In such cases, submissions will be stronger if the authority carries out a costing exercise, using a reasonable sample of the information or carrying out a sample search. Remember that the hourly rates of employees involved in searches will also be relevant, and that "thinking time" cannot be included in cost calculations.

    Similarly, in Decision 082/2016, we found that the submissions did not relate to the information that had actually been withheld, but to other information not covered by the request.


  • If you don't hold the information, don't apply an exemption
    It's surprising to see some authorities still failing to check that they hold information before deciding it should be withheld. If you don't hold the information, there is no need to apply an exemption. Instead, you must tell the requester that you don't hold it. Decision 081/2016 involves a case where the authority applied an exemption to information it didn't hold. It also failed to carry out appropriate searches to see whether it held the information - we were particularly concerned about this, given the sensitivity and importance of the information.

Decisions issued:

  • Decision 077/2016 Tom Gordon and the Scottish Ministers
    Mr Gordon asked for information about state aid for "T in the Park". The Ministers provided a link to information published on their website, and withheld unpublished information. After investigation, we accepted this. Mr Gordon had complained that it was difficult to tell which exemption applied to the redacted parts of the published documents. We agreed that it would have been helpful if the Ministers had provided Mr Gordon with a schedule explaining this, and commented that it would be good practice for all authorities to adopt this approach.


  • Decision 078/2016 William Chisholm and Scottish Borders Council
    Mr Chisholm wanted information about a site visit which councillors had made to the Avonmouth plant of New Earth Solutions Ltd. The Council provided some information but withheld information which it considered to be commercially sensitive. We accepted that some of the information was correctly withheld, but found that other information was not sensitive enough for the exception to apply, and ordered the Council to provide it to Mr Chisholm.


  • Decision 079/2016 Alastair Tibbitt and City of Edinburgh Council
    Mr Tibbitt asked the Council about a consultancy contract relating to the economic development of Edinburgh's East End. The Council considered the request to be manifestly unreasonable because of the number of documents and staff involved. After investigation, we didn't accept that the Council's submissions were sufficiently detailed to support its position, and ordered it to respond in a different way.


  • Decision 080/2016 Alastair Tibbitt and the Chief Constable of the Police Service of Scotland
    Mr Tibbitt asked about surveillance carried out under the Regulation of Investigatory Powers (Scotland) Act 2000. The Police withheld some information and stated that it would cost more than £600 to supply the information covered by other parts of the request. We accepted the arguments relating to costs, but found that the Police had failed to provide Mr Tibbitt with reasonable advice and assistance and required them to do this. We did not accept that some information was correctly withheld and required the Police to disclose it.


  • Decision 081/2016 Alastair Tibbitt and Aberdeenshire Council
    Mr Tibbitt asked the Council for information relating to the "Prevent" duty guidance for Scotland, which provides guidance to help prevent people being drawn into terrorism. The Council told him the information was exempt from disclosure.

    During our investigation, the Council told us that it did not hold the information. It also stated that it had never told the requester that the information had been withheld. We found that the Council did, in fact, hold some of the information, and that its correspondence with Mr Tibbitt clearly advised him that the information was exempt. Our decision criticises the Council for this. We agreed that the Council was entitled to withhold the information it held, but found that it should have told the requester that it didn't hold some of the information he'd asked for.


  • Decision 082/2016 Paul Hutcheon and the Chief Constable of the Police Service of Scotland
    Mr Hutcheon's request was for reports on ethics and Police Scotland. The Police withheld all information, but provided some during our investigation. We ordered the Police to disclose more information, but accepted that some information should be withheld.


  • Decision 083/2016 Brian McCabe and Falkirk Council
    Councillor McCabe asked for information relating to the Denny Regeneration Project and, in particular, the failure of two developers to provide contributions for the construction of an access road. The Council provided some information and withheld other information as commercially sensitive and legally privileged.

    Councillor McCabe did not challenge the fact that the Council had withheld information, but asked us to investigate whether the Council had considered all information which fell within the scope of his request. Following an investigation, we were satisfied that it had.

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