Decisions Round-up: 14 to 18 March 2016

There are 3 decisions this week under the Environmental Information Regulations (EIRs), which serve as good reminders of some of the exceptions under the EIRs (which are different to the exemptions in the FOI Act). We upheld EIRs exceptions for legal professional privilege, commercial confidentiality and conducting a criminal enquiry. To learn more about these exemptions, a Court of Session decision about personal data and learning points about the handling of requests, read on.

Key messages:

  • Could there be a prosecution?
    Some public authorities carry out investigations which can be reported to the procurator fiscal, who would then decide whether or not to prosecute someone. If the possibility of prosecution is real, environmental information can be withheld if disclosing it into the public domain would prejudice the course of justice, including a person’s ability to receive a fair trial or the ability of an authority to carry out a criminal or disciplinary inquiry. In Decision 058/2016 we found that disclosing information about the investigation was likely to substantially prejudice the authority’s ability to conduct a criminal enquiry, and also the defender’s ability to defend the case, so the exception in regulation 10(5)(b) of the EIRs applied.
  • Search thoroughly   
    A vital part of responding to any request is making sure you find all the information covered by the request.  Thorough searches are an essential part of getting FOI right. Something has gone wrong if you find more information during our investigation, which you didn’t identify earlier. Most recently this happened in Decision 054/2016.
  • Make sure you respond on time
    Cases where a public authority has failed to respond on time are getting fewer, but they still arise.  The timescales in the FOI Act are not flexible, so authorities must always pay attention to the response deadline (Decision 057/2016).

Decisions issued:

  • Decision 054/2016 Simon Johnson and the Scottish Ministers
    Mr Johnson asked the Ministers for information about BBC programming in an independent Scotland. The Ministers disclosed some information, but withheld the rest. They disclosed some more information after Mr Johnson appealed. We found that the Ministers initially failed to identify all of the information they held which was covered by the request, and that they wrongly withheld the information which was disclosed during the investigation. We also found that the Ministers were entitled to withhold the remaining information under the “formulation of Scottish Administration policy”, and “effective conduct of public affairs” exemptions. 
  • Decision 055/2016  Ms X and City of Edinburgh Council
    Ms X asked the Council for information about road inspections in a specific street. The Council supplied some information but withheld the remainder on the basis that it was prepared for the purpose of litigation and was therefore subject to legal professional privilege. We found that the information was subject to the privilege, so could be withheld under regulation 10(5)(b) of the EIRs.
  • Decision 056/2016  Stuart Glendinning and City Property Glasgow (CPG)
    CPG were asked for information relating to the proposed sale and development of land next to Park Quadrant Glasgow, including the scores awarded to each of the four finalists and the scoring methodology. CPG disclosed some information and, following review, stated that other information could be withheld as it was commercially confidential under regulation 10(5)(e) of the EIRs. CPG disclosed more information during our investigation. We agreed that the remaining information could be withheld. 
  • Decision 057/2016  Mr G and the Scottish Prison Service (the SPS)
    Mr G asked the SPS for information about the procedure in place for people of the opposite gender entering a prisoner’s cell. We found that the SPS failed to respond to the review within the FOI timescales.
  • Decision 058/2016  Gerard McGill and Aberdeenshire Council
    The Council were asked for information about a planning application for a specific site. The Council withheld the information. The information related to a “live” planning enforcement matter and the Commissioner was satisfied that making it available would substantially prejudice the Council’s ability to conduct a criminal inquiry (regulation 10(5)(b) of the EIRs).
  • Decision 059/2016, 060/2016, 061/2016 and 062/2016  Tommy Kane and the Scottish Ministers
    In each case, Mr Kane asked the Ministers for a list of meetings between the Scottish Ministers and a named external organisation, including details of participants and reasons for the meeting. The Ministers refused the requests, claiming that the cost of replying to each request would exceed the FOI Act’s £600 limit. Although Mr Kane amended the requests to cover shorter periods, we accepted that the Ministers were entitled to refuse each request because it would cost more than £600 to comply.

Court of Session Decision:

Last week the Court of Session issued its Opinion in the case of David Gilroy v Scottish Information Commissioner and the Chief Constable of Police Scotland. The Opinion can be read on the Courts' website.

Mr Gilroy was found guilty of the murder of Suzanne Pilley in 2012. In 2014, Mr Gilroy asked Police Scotland for a list of the CCTV they had recovered as part of their investigation into his case.  Police Scotland refused to disclose the list to Mr Gilroy under the FOI Act, but later disclosed it in response to a subject access request made by Mr Gilroy under the Data Protection Act.

In Decision 005/2015, we agreed with Police Scotland that the CCTV list was Mr Gilroy’s personal data and that it was therefore exempt from disclosure under section 38(1)(a) of the FOI Act. Mr Gilroy appealed the decision on the basis that the list was not his personal data.

The Court of Session found that the list was his personal data and upheld the Commissioner’s decision.

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