Decisions Round-up: 12 to 23 November 2018

The learning points this week could be summed up in one key piece of advice to public authorities: don't get ahead of yourself. Authorities should make sure they hold information before telling requesters that it would be exempt. Before labelling requested information as personal data, authorities must be sure that someone could actually be identified from it. Even when something goes wrong, authorities can take steps to improve their transparency, like promptly disclosing information that is only found after a review response is issued.

Learning points:


  • If information isn't held, it can't be withheld
    It's important to remember that information can only be withheld under exemptions if it is actually held by the authority at the time it receives the request. In Decision 181/2018, the authority claimed an exemption applied to requested information, but we weren't satisfied that the authority held the requested information in a recorded format.


  • Personal data and FOI: is there a realistic prospect of identifying someone?
    The exemptions (and exceptions) relating to personal data depend on the information in question qualifying as personal data under data protection law. One key requirement is that the information - on its own or with other accessible information - must be capable of identifying a living individual. There must be a realistic prospect of identification and not simply a slight hypothetical possibility. From the submissions the public authority gave us in Decision 182/2018, we weren't satisfied that there was a realistic prospect of identification.


  • It's good to see information disclosed promptly, once it is discovered
    Even where information covered by a particular request isn't identified at first, it's always helpful for that information to be disclosed as soon as an authority does find it. In Decision 183/2018, after responding to the review request, the authority found information which it did not know it held while responding to another FOI request. We were pleased to see the prompt disclosure of this information after it was eventually found.

Decisions issued:


  • Decision 176/2018 Mr M and Highland Council
    Mr M asked the Council about a public telephone box near Dalwhinnie. The Council failed to respond to Mr M's request - or request for review - in line with the FOI timescales.


  • Decision 177/2018 Mr F and Southside Housing Association (SHA)
    SHA was asked about improvement works at properties in Glasgow. SHA initially failed to respond to the request, but later disclosed some information to Mr F. It withheld two reports. The Commissioner concluded that the information in the reports was not environmental information. Given that SHA is a public authority for the purposes of the Environmental Information Regulations, but not the FOI Act, SHA were not under a duty to disclose the reports. Other (environmental) information was located and disclosed to Mr F during the investigation.


  • Decision 178/2018 Ms C and Glasgow City Council
    The Council was asked about primary school deferral applications for 2013/18. The Council failed to respond to the request, or request for review, within the FOI Act's timescales.


  • Decision 179/2018 Mr C and East Renfrewshire Council
    Mr C wanted to know how many children from outwith the Council area were enrolled at a named primary school. The decision finds that the Council failed to respond to the request and request for review within the FOI timescales.


  • Decision 180/2018 Dr A and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Dr A asked how much it had cost to paint "Poileas" on all Police Scotland's vehicles. Police Scotland told the requester they did not hold the information. We accepted that Police Scotland didn't hold information which would answer the request.


  • Decision 181/2018 Mr G and Community Safety Glasgow (CSG)
    CSG was asked for the numbers of specific types of fixed penalty notices referred to the procurator fiscal for non-payment. CSG withheld the information under the FOI exemptions for information which, if disclosed, would likely to substantially prejudice the prevention or detection of crime and the apprehension or prosecution of offenders. We investigated and found that CSG didn't hold the information.


  • Decision 182/2018 Mr K and Aberdeenshire Council
    The Council was asked for a wide range of information relating to a section of road at Foveran Church. The Council disclosed some information, but withheld details of the number of successful and unsuccessful claims for a specific time period, on the basis that disclosure would be contrary to the Data Protection Act. The Commissioner didn't agree that the information was personal data and required the Council to disclose it.


  • Decision 183/2018 X and the University of Aberdeen
    X asked the University about a property it owned at Old Aberdeen. The University said that it did not hold any information, beyond what it had given the requester already. After issuing its review response, the University found and disclosed more information. By the end of our investigation, we were satisfied that the University had carried out appropriate searches and didn't hold any other relevant information. However, we also found that the University failed to respond to the request within the FOI timescale and failed to provide the information it held when it did respond.


  • Decision 184/2018 Mr W and NHS Greater Glasgow and Clyde (NHSGGC)
    Mr W asked NHSGGC for information about funding for NRS Generic Support. The Commissioner found that NHSGGC failed to respond to the information request and request for review within the FOI timescales.


  • Decision 185/2018 Mr Neil Lovatt and Scottish Ministers
    The Ministers were asked for correspondence and analysis relating to "the Scottish Government's conclusion that it did not have the necessary vires to legislate for the Job Grant in its current form". The Ministers provided one document with some information redacted and withheld the remaining information under a number of exemptions. We accepted that the information had been correctly withheld.

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