Decisions Round-up: 12 to 16 December 2016

This week's learning points show what can happen when authorities get ahead of themselves with information requests. For example, thinking about what exemptions will apply to requested information without checking first whether they even hold the information, or responding under the Freedom of Information (Scotland) Act 2002 (FOI Act) without thinking first if they should instead be responding under the Environmental Information (Scotland) Regulations 2004 (the EIRs).

Also, following the issue of our first ever Enforcement Notices last week, four more have been issued this week.

Learning points:


  • Be aware of environmental information
    Remember that requests for environmental information must be considered under the EIRs, and the definition of environmental information is much wider than many people realise. We had a couple of cases this week (Decisions 259/2016 and 260/2016) where environmental information wasn't identified, so wasn't considered under the EIRs.


  •  Information has to be "held" when the request is received
    Only information that is held at the time the public authority receives a request will be covered by the request. In Decision 260/2016, the authority withheld some information it didn't actually hold until after it received the request.


  • Exemptions only apply to held information
    Public authorities can't claim information is exempt if they don't actually hold it. Decision 260/2016 is an example of a case where that authority attempted to do this.


  • Look out for review requests
    When a requester expresses dissatisfaction with the authority's handling of their request, that's usually a request for review. The requester doesn't need to use the word "review", so authorities should look out for any correspondence which says why someone is dissatisfied with a response - and treat it as a review request. See Decision 258/2016 for a case where a valid request for review was missed.
  • Respond on time
    We still see more cases than we should where the requester hasn't received a response within the required timescales - this week, see Decisions 256/2016, 258/2016 and 261/2016.

Decisions issued:


  • Decision 256/2016 Mr S and East Dunbartonshire Council
    Mr S asked for a range of employment information, particularly about the employment of people with protected characteristics. The Commissioner found that the Council failed to respond to the request and review request within the timescales allowed by the FOI Act. The Commissioner ordered the Council to comply with the request for review.


  • Decision 257/2016 Tom Taylor and East Renfrewshire Council
    The Council disclosed information about a complaint. The Commissioner was satisfied that the Council had carried out appropriate searches and disclosed all the information it held.


  • Decision 258/2016 Mrs X and South Lanarkshire Council
    The Council was asked about its decision to limit the work carried out on the roofline of a building. The Commissioner found that the Council failed to respond to the request for review by the 20 working day deadline.


  • Decision 259/2016 Mrs W and South Lanarkshire Council
    Mrs W asked the Council about proposed building works, including work to be carried out under its roof repair and maintenance programme. The Council disclosed some information. The Commissioner found that the Council had conducted reasonable and proportionate searches and did hold not any further information falling within the scope of the request. However, she also found that the request was for environmental information, so it should have been considered under the EIRs and not the FOI Act.


  • Decision 260/2016 Mr X and Argyll and Bute Council
    This case involved information about the sale of Castle Toward. The Commissioner found the Council:
    • incorrectly identified some information as falling within the request, when that information wasn't held when the request was made
    • failed to identify some of the information as environmental information, which should have been considered under the EIRs
    • wrongly withheld some information under exemptions
    • wrongly applied an exemption to information it didn't hold, and
    • failed to respond in full to part of the request.

We required the Council to issue a new response to part of the request.


  • Decision 261/2016 Brian McQuillan and Glasgow City Integration Joint Board (the IJB)
    Mr McQuillan asked for a list of the community organisations that were engaged to help the IJB develop its Participation and Engagement Strategy. The Commissioner found that the IJB failed to respond to the request for review within the FOI Act's timescale.

Enforcement notices issued:


  •  ENF003/2016 Sycamore School
    Sycamore School is a grant-funded school and, on 1 September 2016, was designated as a Scottish public authority for the purposes of the FOI Act. We contacted Sycamore School throughout 2016 to remind it of its duties under the FOI Act, including the need to adopt and maintain a publication scheme approved by the Commissioner. The school has failed to respond to any correspondence from the Commissioner. We issued an enforcement notice requiring it to adopt a publication scheme by the end of January 2017.


  • ENF004/2016 SEBSED, ENF005/2016 Highland Birchwoods, and ENF006/2016 Kirkintilloch's Initiative Ltd
    SEBSED, Highland Birchwoods and Kirkintilloch's Initiative Ltd are all companies that are owned by Scottish public authorities (Scottish Enterprise, Highland Council and East Dunbartonshire Council respectively). All three are therefore publicly owned companies and are subject to the FOI Act. All three had previously adopted a publication scheme, but the approval for the scheme ran out on 31 May 2015. Despite being contacted by the Commissioner, none of the companies have adopted a new scheme. We issued enforcement notices requiring all three to adopt a new scheme by the end of January.

[LC1]Link to Law > EIRs > Definition of Environmental Information

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