Decisions Round-up: 13 to 17 July 2015


We published nine decisions last week.

Key messages:

  • Organisations may be covered by the EIRs, even if not covered by FOISA
    In Decision 099/2015, the Commissioner confirmed her view (previously expressed in Decision 118/2014) that Dunbritton Housing Association is under the control of the Scottish Housing Regulator and has public responsibilities in relation to the environment. Therefore, it is subject to the EIRs and has a duty to respond to requests for environmental information.


  • Requesters can still ask for information about something that's already the subject of an appeal
    Where a requester has an appeal under investigation, this does not prevent them from asking the authority for information on the same matter. If they are simply pursuing an argument on a matter which has already been fully addressed, then the request might be vexatious. Authorities would have to show that this is the case and, in Decision 104/2015, we did not accept that the request was vexatious.


  • It's important to identify all information covered by a request
    It's been said before, but it's worth repeating - some decisions against public authorities could be avoided if all information was identified when replying to the request, not during our investigation. Decisions 105/2015 and 106/2015 are both cases like this. In Decision 105/2015 we accepted that the information was correctly withheld, but found that Police Scotland had failed to identify all relevant information. In Decision 106/2015, the Council discovered and provided more information during the investigation. This should have been provided in response to the request.


  • Make sure you can show that harm will occur, before withholding information
    In Decision 107/2015, we didn't accept that the commercial interests of Perth and Kinross Council or local traders would be significantly harmed by disclosing information about the fees paid to performing artists at the switching on of the Christmas lights. In Decisions 102/2015 and 103/2015, Ministers failed to provide enough evidence to show that disclosure of information about shooting seals at salmon farms would, in itself, lead to actions likely to endanger human safety.


  • Be prepared to show that a request will cost more than £600
    As we said last week, it's important to be sure of the cost of responding to a request before refusing it on the grounds that it will cost more than £600. The effect of this is to deny the requester the right to information, so the provision must be used carefully. In Decision 109/2015, we found that the authority had failed to provide appropriate reasons to support its decision that the cost of responding to the request would be over £600.


Decisions issued:

  • Decision 099/2015 Mr X and Dunbritton Housing Association Ltd.
    Mr X asked about the transfer of shops and flats in Brown Street, Haldane by West Dunbartonshire Council. In an earlier decision (118/2014), we found that Dunbritton Housing Association was covered by the EIRs and should have responded to the request under the EIRs. Dunbritton then carried out a review of its decision, and decided that some information should be withheld. Dunbritton challenged the view that it was covered by the EIRs, referring to a recent decision of the (UK) Upper Tribunal.

    We upheld the previous decision that Dunbritton Housing Association is a Scottish public authority covered by the EIRs. We found that Dunbritton was correct to withhold some of the requested information.

  • Decision 102/2015 and 103/2015 Global Alliance Against Industrial Aquaculture (GAAIA) and the Scottish Ministers
    GAAIA asked for information about seal killings at salmon farms during 2014 and for correspondence on the provision of seal killing statistics (Decision 102/2015) and for the seal killing return forms from salmon farms for the years 2013 and 2014 (Decision 103/2015). The Ministers argued that disclosure of the numbers and locations of seals killed would endanger human safety, because the information would be used by protesters.

    We accepted that the Ministers did not hold the correspondence which GAIAA had requested.

    We found that the Ministers should provide the seal killing return forms and numbers of seals killed at salmon farms. Although there is evidence that protesters intend to target salmon producers (as they have done in previous years), the Ministers did not show that disclosure of the information would, in itself, lead to actions which would endanger human safety.


  • Decision 104/2015 Veronica Lynch and Social Care and Social Work Improvement Scotland (SCSWIS)
    Ms Lynch asked for information about to the workload and job description of a named member of staff at SCSWIS. She received the job description, but business names were withheld under the exemption for commercial interests. SCSWIS found the rest of the request to be vexatious, believing that Ms Lynch intended to carry out her own investigation of a matter which was already the subject of a complaint investigation.

    Following our investigation we accepted that business names were exempt from disclosure, but did not accept that the remainder of Ms Lynch's request was vexatious. We required SCSWIS to provide Ms Lynch with an appropriate response.

  • Decision 105/2015 Mark Howarth and the Chief Constable of the Police Service of Scotland
    Mr Howarth asked for the Initial Case Review report concerning Daniel Welsh, with the reasons why this was not taken to a Significant Case Review. Although we agreed that the information was correctly withheld, we found that the Police had failed to identify all the relevant information they held.

  • Decision 106/2015 Mr Y and City of Edinburgh Council
    Mr Y asked for the number of "advertising drums" currently in operation on Council-owned land, with a list of locations. The Council provided some information. During the investigation, it found and provided more information, and we accepted that this was all the information it held. However, because the Council had failed to provide the information in response to the request, we found that it had failed to comply with the EIRs.


  • Decision 107/2015 Iain Howie and Perth and Kinross Council
    Mr Howie asked for the fees paid to individual performers at the switching on of the Christmas lights in Perth. The Council argued that making this information public would make it harder to secure artists for future events, threatening the success of the events. Although we accepted that some artists might be deterred from appearing at future events if they knew their fee would be disclosed, we did not accept that this would significantly affect the Council's ability to host a popular and successful event or would cause substantial harm to its - or local traders' - commercial interests.


  • Decision 108/2015 Harald Tobermann and City of Edinburgh Council
    Mr Tobermann asked for a list of defects relating to recent road and pavement works on a section of Leith Walk, Edinburgh. We accepted that the Council was correct to withhold this information on the basis that it could damage the commercial interests of the contractor. We then found that, at the time the request was made, the public interest in maintaining the confidentiality of the information outweighed the public interest in disclosing it.


  • Decision 109/2015 Paul Hutcheon and the Chief Constable of the Police Service of Scotland
    Mr Hutcheon asked for statistical information on interception warrants and authorisations and on notices for communications. Police Scotland withheld information on interception warrants, explaining that they were prohibited from providing it under the Regulation of Investigatory Powers legislation (RIPSA). The rest of the request was refused because it would cost more than £600 to provide the information.

    We accepted that the information on interception warrants was correctly withheld, but found that Police Scotland had not given clear reasons to show that it would cost more than £600 to provide the other information. We required Police Scotland to respond again to this part of Mr Hutcheon's request.

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