Decisions Round-up: 11 to 15 December 2017

This week's learning points show the steps we have taken when authorities and requesters want to keep important details from each other. When a requester didn't want to reveal their real identity, so used a pseudonym, we refused to issue decisions because the requests were invalid. In another case, where an authority had already confirmed it held information, we found it couldn't then rely on the "neither confirm nor deny" provisions to avoid revealing whether it held the same information.

Learning points:


  • What can an authority do if it thinks a requester has used a pseudonym?
    Our learning points usually focus on decisions we've issued, but, over the past month, we've refused to issue decisions in a number of cases on the basis that the requester had used a pseudonym. This meant that the requests, and subsequent appeals, were invalid.

    Our guidance makes it clear that, where authorities have reasonable grounds for believing a requester might have used a pseudonym, they can ask the requester for proof of identity. This should be done as quickly as possible - if the original request proves to be valid, the 20 working days for responding will be from the date of receipt of the request, and not from receiving proof of identity.


  • Using the neither confirm nor deny provisions
    The FOI Act and the Environmental Information Regulations (the EIRs) allow public authorities to refuse to confirm or deny whether they hold information in limited circumstances. (In the EIRs, this can only be done with personal data.) In Decision 201/2017, the authority told the requester it held information, but was withholding it under an exemption, only to tell the requester at review that it didn't want to confirm or deny whether it was held. Having already confirmed that it held the information, it made no sense for the authority to then refuse to say whether it was held and we found it was not entitled to do so.


  • FOI applies to recorded information already held by an authority
    Authorities aren't obliged to create new information to answer a request - FOI only applies to recorded information already held by an authority when it receives the request. This point was addressed in Decision 201/2017.


  • Authorities need to be clear what a request is asking for
    Despite the best efforts of the requester, it's not always clear to authorities what a request is for. Both the FOI Act and the EIRs gives authorities the right to ask for clarification where needed. Decision 206/2017 is an example of what can go wrong if clarification isn't sought right at the start. The authority originally thought that it had complied with the request in full but, during the investigation, decided it would cost more than £600 to comply, meaning it didn't actually have to comply. We ordered the authority to carry out a new review - and to comply with its duty to give advice and assistance to the requester on the scope of the request.


Decisions issued:


  • Decision 201/2017 Mrs X and Fife Council
    This involved a request to the Council about the cost of two reports and costs of sickness absence. The Council disclosed some information and told Mrs X that it was withholding some of the information it held. At review, the Council changed its mind about the information it had said it was withholding and refused to say whether it held the information at all. We found that the Council was not entitled to refuse to confirm or deny whether it held the information it had originally refused to provide. By the end of the investigation, the Commissioner was satisfied that the Council did not in fact hold this information.


  • Decision 202/2017 Jennifer McKiernan and Transport Scotland
    Transport Scotland was asked for correspondence with the Minister for Transport about average speed cameras on the A90 between Stonehaven and Dundee. Transport Scotland initially withheld some information, but disclosed it during the investigation. We found that the information should have been disclosed earlier.


  • Decision 206/2017 Mr Y and the Scottish Prison Service (the SPS)
    In this case, it became clear during the investigation that the SPS's interpretation of the request was much wider than it had originally been: it originally told Mr Y that it had disclosed everything it held but, during the investigation, decided it would cost more than £600 to comply in full. In the circumstances, and with the approval of Mr Y, we issued a decision ordering the SPS to carry out a new review and to give him advice and assistance about the scope of his request.


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