Decisions Round-up: 11 to 15 September 2017

We have three interesting new learning points this week combined with an old favourite. We consider; whether the requester's ability to pay has an impact on the charges that can be applied; whether personal data disclosed during a public hearing is in the public domain and we take a closer look at the tests that need to be met if an authority wants to withhold environmental information because disclosure would harm the interests of the person providing the information - one of our new guidance briefings!

Learning points:

  • Charging: is a requester's ability to pay relevant?
    Both FOI and the EIRs allow charges to be made for information, but does an authority have to consider the requester's ability to pay? It depends whether the request is made under the FOI Act or under the EIRs. Decision 145/2017 looks at a request by a prisoner for hard copies of documents published online. Being a prisoner, he didn't have access to the internet. He argued that the authority had to consider his ability to pay when deciding whether and what to charge. We disagreed. The FOI Act Fees Regulations are clear on what can and can't be charged for, and don't say anything about taking ability to pay into account.

    Things are different under the EIRs. The EIRs make it clear that any fees charged mustn't dissuade people from making requests or restrict the right of access. See the Commissioner's guidance on charging under the FOI Act and the EIRs.


  • If personal data has already been made public, does it automatically have to be disclosed?
    The short answer is no - see Decision 147/2017. Here, the requester asked for transcripts of evidence given during a public hearing. The requester argued that, since the evidence had been given in public, there was no reason to withhold the transcripts. We disagreed. While the fact that the evidence had been given in public was relevant when considering the likelihood of harm, etc. when disclosing the information under FOI, the Commissioner still had to be satisfied that further disclosure wouldn't breach the Data Protection Act.


  • Don't withhold information unless all of the tests can be met
    There are tests which must be met before information can be withheld. In Decision 142/2017, we considered the tests in place for the EIR exception that protects information if disclosure would harm the interests of the person that provided it (regulation 10(5)(f)). The authority argued that the information couldn't be disclosed because the third parties which had given it the data couldn't be legally obliged to supply it. We disagreed - the authority had the power to order the third parties to provide it. The authority also argued that the third parties hadn't consented to disclosure. This was the wrong test to consider. For regulation 10(5)(f) to apply, the third party must actually have refused consent - here, consent hadn't even been sought.

    Last month, we published detailed new guidance on regulation 10(5)(f). Make sure you know what tests need to be met by reading the guidance.


  • Authorities shouldn't apply exemptions to an entire document if there are parts they can disclose
    An oldie, but a goodie. It's important to avoid a blanket approach to exemptions when considering whether information can be disclosed. In Decision 143/2017, the authority originally claimed that there was nothing in a document which could be disclosed. Yet, during our investigation, the authority decided it could disclose large parts of the document without any problems. If a redacted (blacked-out) version had been disclosed at the start, the requester might not have had to appeal to the Commissioner.


Decisions issued:

  • Decision 142/2017 Salmon & Trout Conservation Scotland (S&TCS) and the Scottish Ministers
    S&TCS asked for sea lice information provided to Marine Scotland by fish farms. The Ministers refused to disclose the information, arguing that the information was incomplete (regulation 10(4)(d) of the EIRs) and that the fish farms which gave the information to Marine Scotland could not be put under a legal obligation to supply the information (regulation 10(5)(f) of the EIRs). We disagreed on both points and ordered the Ministers to disclose the information to S&TCS.


  • Decision 143/2017 Mr X and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Police Scotland were asked for the operational orders in place for four football fixtures in February 2017. During the investigation, Police Scotland disclosed redacted versions of the operational orders. We agreed that disclosing the remaining information would harm the prevention or detection of crime and that it could be withheld.


  • Decision 144/2017 George Finlay and Glasgow City Council (the Council)
    This involved a request for the Council's road maintenance policy and for information about the history of repairs to a specific road. The Council responded to the request under the EIRs and issued a fees notice. Mr Finlay didn't agree that the information was environmental information. We decided the information was environmental and that the Council had therefore no option but to respond under the EIRs.


  • Decision 145/2017 Mr X and the Scottish Criminal Cases Review Commission (the SCCRC)
    Mr X, a prisoner, does not have access to the internet. He asked the SCCRC for various minutes and reports, all of which the SCCRC publish on its website. The SCCRC issued Mr X with a fees notice for £12.20 to cover printing costs, etc. Mr X argued that he should not have to pay the fee, given that the only reason he would have to pay was because he didn't have internet access. We disagreed -the FOI Act's Fees Regulations don't require the public authority to take a requester's personal circumstances into account.


  • Decision 146/2017 Jackie Baillie MSP and the Scottish Ministers
    Ms Baillie asked the Ministers about the Vale of Leven Community Maternity Unit. The Ministers disclosed some information, but refused to disclose information which, in their view, would harm the effective conduct of public affairs. We agreed that a small amount of the information was exempt from disclosure, but ordered the Ministers to disclose the rest to Ms Baillie.


  • Decision 147/2017 Stephen Magee of the BBC and the Scottish Social Services Council (SSSC)
    In 2016, the SSSC held a Conduct Sub-committee to consider whether the actions of a social worker, who had previously been involved in the care of Liam Fee, had breached its Code of Practice. The BBC asked the SSSC for transcripts of the evidence given at the hearing. The SSSC argued that all of the information in the transcripts was personal data and that, even though the hearing had been heard in public, it couldn't disclose the transcripts without breaching the Data Protection Act. We agreed.


  • Decision 149/2017 Fraser Morton and NHS Ayrshire and Arran (the Board)
    The Board was asked for CTG (cardiotocography) training offered to midwives. The Board told Mr Morton that it didn't hold the information he had asked for. After a detailed investigation, we accepted that no information was held.


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