Decisions Round-up: 13 to 24 June 2016

You can't withhold what you don't have - It's vital that authorities identify what information they hold before relying on exemptions/exceptions to withhold information.  


 Learning points:

  • "Sensitive personal data" has a special meaning
    The Data Protection Act (DPA) lists categories of data that can be regarded a "sensitive personal data". This includes data about ethnicity, religion, sexual life and health, which are entitled to special protection. Authorities need to be careful about what they describe as "sensitive personal data". In Decision 123/2016 an authority claimed that information about employment was sensitive personal data, but this is not covered by the definition in the DPA.


  • Under the EIRs, you can withhold information to protect the environment
    Regulation 10(5)(g) of the EIRs allows a public authority to withhold information where disclosing it would harm the environment to which the information relates. Perhaps surprisingly, we don't see this exception used very often. However, in Decision 128/2016 we agreed that it could be used to withhold the locations of osprey nest sites affected by T in the Park.

  • Don't exempt information you don't hold
    When responding to requests, it is, in most cases, important to clearly indicate what information is or isn't held. If exemptions are being applied, the information being exempted must also be clearly indicated (Decision 127/2016).

Decisions issued:


  • Decision 123/2016 Yvonne Christley and Dumfries and Galloway Health Board (NHS Dumfries and Galloway)
    Ms Christley asked for information about staff in a particular Directorate. NHS Dumfries and Galloway disclosed information on the number of staff employed, but withheld more detailed information under the personal data exemption.

    We found that some information was not personal data and required that it be disclosed to Ms Christley. We accepted that other information was personal data, and could be withheld.


  • Decision 127/2016 Alastair Tibbitt and East Renfrewshire Council
    Mr Tibbitt asked the Council for information relating to the "Prevent" duty guidance for Scotland. This aims to prevent people being drawn into terrorism. The Council said it didn't hold some information and refused to confirm or deny whether it held the remainder. During our investigation, the Council changed its position on some information, saying that it didn't hold it, while simultaneously claiming that it was exempt from disclosure.

    We didn't accept that the Council was entitled to refuse to confirm or deny whether it held information and ordered it to tell Mr Tibbitt whether it did in fact hold the information. We did accept that the Council didn't hold the remainder of the information, but made it clear that the Council wasn't entitled to apply exemptions to information it didn't hold.


  • Decision 128/2016 Mark & Kim Liddiard and Perth & Kinross Council
    The Council was asked for information relating to planning permission for the T in the Park music festival. The Council disclosed some information and withheld other information. It refused to respond to other parts of the request because it considered them "manifestly unreasonable" under the EIRs.

    We found that some information was wrongly withheld and ordered its disclosure. However, we agreed that parts of the request were manifestly unreasonable and that other information, including information about osprey nest sites, could be withheld under exceptions in the EIRs. These exceptions included regulation 10(5)(g), which is about protecting the environment.


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