Decisions Round-up: 13 to 24 May 2019

This week, we learn about how to calculate potential harm resulting from disclosure - both for information that may prejudice effective conduct of public affairs and for commercial information. We also take our first look at "special category" personal data in a request about equalities, where we agreed the information was exempt from disclosure.

Learning points:


  • Context can be important when considering harm
    The context in which information has been used can be a key consideration when deciding whether harm would result from disclosure. Decision 073/2019 looks at whether drafts of material for a publicity campaign, which had been shared with stakeholders, should be disclosed. We found that, just because the drafts had been shared with a limited number of people, didn't mean that the drafts weren't sensitive, or had to be disclosed under FOI.


  • …this applies to commercial information too
    Similarly, where an authority argues that information is commercially sensitive, it must consider whether the passage of time has impacted on the level of harm in disclosure. The likelihood of harm will reduce as time passes, as prices, service delivery methods and market conditions change. In Decision 078/2019, we found that key implementation dates had long passed by the time of the request and that the likelihood of harm had reduced to such an extent that the exemption did not apply.

  • Special category (sensitive) personal data gets more protection
    This week we consider our first case looking at "special category data". Special category data is afforded more protection by the General Data Protection Regulation (GDPR). These are very limited circumstances where it is likely to be lawful to disclose this type of data in response to an FOI request. In Decision 071/2019, we found that processing the data would be unlawful and that the personal data was exempt from disclosure.

Decisions issued:


  • Decision 069/2019 Mr F and Chief Constable of the Police Service of Scotland (Police Scotland)
    Police Scotland were asked about a lost passport. They told the requester they didn't hold the information and we investigated and accepted this.


  • Decision 070/2019 Ms V and Glasgow City Council
    The Council was asked for the full transcript of a public tariff appeal hearing. The Council told the requester it only held a partial transcript and disclosed this to the requester. We investigated and agreed the Council didn't hold a full transcript of the hearing.


  • Decision 071/2019 Mr E and Dumfries and Galloway Council 
    Mr E asked about a request made under the Equality Act 2010. The Council withheld information on the basis that it was personal data. Following an investigation, we found that the information was special category (sensitive) personal data and that the Council was correct to withhold it.


  • Decision 072/2019 Ms W and North Lanarkshire Council
    The Council was asked for a copy of a report of a management review of complaint handling. The Council maintained that no report had been produced following the review. The Commissioner investigated and was satisfied that the Council didn't hold the information.


  • Decision 073/2019 Mr N and Scottish Ministers
    Mr N asked for drafts of posters for their "Hate has no home in Scotland" campaign, which had been shown to some third party organisations. The Ministers decided these draft posters were exempt from disclosure under section 30 - prejudice to effective conduct of public affairs. Following an investigation, we agreed that the Ministers were entitled to withhold the drafts.


  • Decisions 075, 076 and 077/2019 Ms Samantha Kerr and West Lothian Council
    All of these decisions found failures in the public authority's compliance with the timescales for responding to requests and/or requests for review.


  • Decision 078/2019 Mr T and East Renfrewshire Culture and Leisure Trust (the Trust)
    The Trust was asked for implementation plans created by a contractor to maximise swimming lessons and gym memberships. The Trust originally withheld the plans on the basis they were commercially sensitive. The plans were disclosed during our investigation, but we found they should have been disclosed at the time of the request.


  • Decision 079/2019 Mr Y and East Renfrewshire Council
    The Council was asked about an Audit Scotland report. We were asked to consider whether the Council had provided enough advice and assistance when responding to this request. We found that it had.

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