Decisions Round-up: 11 to 15 August 2014



We published five decisions between 11 and 15 August 2014 – details, links and learning points below.


Key messages:

  • If you want to extend the timescale for responding to an EIRs request, get it right!
    Under the FOI Act, there’s a strict 20 working day time limit for responding to requests.  However, under the EIRs, this time limit can be extended by up to a further 20 working days if the request is voluminous and complex.  If you want to extend the timescale, you need to notify the requester in writing as soon as possible (and certainly before the first 20 working day period is up).  You also need to explain why you consider the request to be voluminous and complex and tell the requester about their rights to appeal against the extension (reg.7).  In Decision 171/2014, the Ministers extended the timescale for responding, but didn’t do it correctly


  • Councils shouldn’t always assume that they don’t hold councillors correspondence for FOI purposes
    It can be difficult for councils to know whether they hold councillors’ correspondence on their own behalf (in which case it’s subject to FOI) or whether they hold it on behalf of councillors (in which case it’s not subject to FOI).  In Decision 174/2014, we found that communications sent and received by councillors acting in their capacity of office bearers of the Council were held by the Council for the purposes of FOI.


  • Don’t apply exemptions if you don’t hold the information
    Only apply exemptions to information you hold.  If you don’t hold the information, you should tell the requester you don’t hold it.  In Decision 175/2014, the public authority applied an exemption only to discover, during the investigation, that it didn’t actually hold the information.  This breaches FOI – you can only apply exemptions to information you actually hold – and shows why it is important to carry out proper searches.

    Decisions issued:

  • Decision 171/2014 The Royal Society for the Protection of Birds and the Scottish Ministers
  • Decision 172/2014 Animal Concern and the Scottish Minsters

    In both of these cases, we found that the Ministers failed to respond within the timescales set down by FOI law.


  • Decision 173/2014 Mr B J Fielding-Browne and Renfrewshire Council
    Mr Fielding-Browne asked the Council for the information it held about a particular company.  The Council refused to disclose the information – the Enterprise Act 2002 made it illegal for the Council to disclose the information.  Under section 26(a) of the Act, information does not have to be disclosed if disclosing it would mean breaching other legislation.  We agreed the Council had been entitled to rely on section 26(a).
  • Decision 174/2014 Bob Doris MSP and Glasgow City Council
    This involved a request for copies of correspondence between the Council and councillors about a proposal to close day centres for adults with learning disabilities.  The Council disclosed some of the correspondence, but refused to disclose the rest, arguing that (i) some of it was held on behalf of the councillors (which meant that the Council did not hold it for the purposes of the FOI Act) and (ii) the information it did hold was exempt from disclosure.  We found that some of the information was held by the Council for the purposes of the Act, but that some of it was exempt from disclosure. 
  • Decision 175/2014 Mr Edwin Lawrence and South Ayrshire Council
    Mr Lawrence asked the Council for a breakdown of the costs of a building project at New Bridge Street, Ayr.  The Council refused to disclose the information, arguing that disclosure would prejudice the contractor’s commercial interests.  However, during the investigation, the Council discovered that it didn’t actually hold the information.

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