Decisions Round-up: 11 to 15 March 2019

This week we explore the fine line that can sometimes exist between information which is "held" and "not held", with a case where responding in the preferred format would have meant the creation of new information. We also note that "unacceptable actions" policies don't trump FOI - every valid request must receive a response.


Learning points:


  • Authorities must respond to FOI requests even if they've invoked their Unacceptable Actions Policy
    In Decision 031/2019, an authority failed to respond to a request (or request for review). The authority had invoked its "unacceptable actions" policy in relation to the requester, but this didn't mean it could simply ignore the requester's FOI requests.


  • Authorities aren't required to create new information to respond to requests
    FOI applies to information held by an authority. In two cases this week (Decisions 030/2019 and 033/2019), the authorities argued they didn't hold information as they would have to create new information in order to respond. Section 11 of the FOI Act makes it clear that requesters can ask for summaries or digests of information. However, if providing a summary or digest would involve applying skill and judgement, this is likely to involve the creation of new information, which is not required by FOI (Decision 033/2019).

  • Exemptions can't be applied to information an authority doesn't hold
    Authorities can't apply exemptions to information they don't hold. Instead, authorities need to tell requesters if they don't hold the information that's been asked for. We looked at this point in two cases this week (Decisions 027/2019 and 035/2019).


  • Is information really "otherwise available"?
    Authorities can refuse to provide copies of information if the information is already available, for example on its website. In Decision 028/2019, the authority thought the information was on its website and only realised during the investigation that it wasn't. It's important that authorities applying this exemption make sure that the information is actually available - and also that it can be easily found.


Decisions issued:


  • Decision 027/2019 Mr M and Scottish Borders Council
    The Council was asked for information about a recycling contract. The Council withheld some information on the basis that disclosure would harm commercial confidentiality. Following an investigation, we concluded that the Council didn't hold some of the information it had applied an EIR exception to. However, we agreed that the information it did hold didn't have to be disclosed.


  • Decision 028/2019 Mr E and the Scottish Ministers
    The Ministers were asked about a project funded by the Chief Scientist Office. The Ministers refused to disclose the information, stating that it was already available on the Chief Scientist's website. The Ministers changed their position during our investigation and disclosed the information to Mr E.


  • Decision 030/2019 Mr H and the University of Edinburgh
    The University was asked for flowcharts summarising its appeal procedures. The University told Mr H it didn't hold the information in the form of flowcharts and that to produce flowcharts would mean creating new information, not something it was required to so under the FOI Act. We agreed.


  • Decision 031/2019 Mr B and the Scottish Housing Regulator (the SHR)
    Mr B asked the SHR about Southside Housing Association and about works at particular properties. The SHR failed to respond to Mr B's request, or request for review, within the FOI timescales. We ordered the SHR to respond.


  • Decision 032/2019 Carolyn Neilson and NHS Greater Glasgow and Clyde
    Decision 037/2019 Mr C and NHS Greater Glasgow and Clyde (NHSGGC)
    In both of these cases, we found that NHSGCC failed to respond to the requests and requests for review within the FOI timescales. We ordered it to respond to Mrs Neilson and Mr C.


  • Decision 033/2019 Colin Kerr and NHS Dumfries and Galloway (NHSD&G)
    Mr Kerr wanted to know how many support staff had their regular unsocial/night hour payments cut or reduced. NHSD&G told him it didn't hold the information as responding to the request would involve creating new information. We agreed.


  • Decision 034/2019 Mr O and Police Scotland
    Police Scotland were asked about the investigation of a case. Police Scotland provided some information and told Mr O that it didn't hold other information. We accepted this.


  • Decision 035/2019 Mr Q and the Scottish Ministers
    The Ministers were asked for risk assessments carried out in advance of making loans to three companies. The Ministers told Mr Q they didn't hold all of the information he had asked for and that the information they did hold was exempt. During the investigation, it became clear that the Ministers did not hold any information falling within the scope of the request.


  • Decision 036/2019 Mr R and the Scottish Ministers
    The Ministers were asked about the training Cabinet Ministers had undertaken in relation to the FOI Act and the Scottish Ministerial Code. We were satisfied that the Ministers didn't hold any information about the training.

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