Decisions round-up: 14 to 18 October 2013

We published 11 decisions this week.


Key messages:

  • Strong FOI procedures are a key to success

Sometimes, it is something as simple as forgetting to pass a scanned copy of a request to the correct department to deal with, which can lead to an appeal to the Commissioner's office. Avoid the expense and inconvenience of an unnecessary appeal by keeping your processes and procedures up to date, and ensuring staff follow them

  • The level of search required from an authority will depend on the circumstances

What the Commissioner will expect from authorities, by way of searches, will depend on what is reasonable and proportionate in the circumstances. So, for example, where someone asks for information which a public authority is unlikely to hold, the Commissioner will expect less in-depth searching than if the request involves information for which there is a business need.

  • Think before assuring third parties their information will not be made public

You should always think carefully before giving assurances to consultees and other third parties that their views will be kept confidential. Doing so may set expectations that cannot be supported under FOISA or the EIRs. The expectation of a third party that their views will not be made public is unlikely to be the only factor which an authority will have to consider when deciding whether or not to release information it holds.

  • Look at the Aarhus Convention and associated guidance when applying an EIR exception

The Commissioner's Decision 225/2013 sets out her thinking in relation to one of the EIR exceptions - regulation 10(5)(f) - which is concerned with information provided voluntarily to a public authority by a third party. It makes useful reading if you are considering refusing an information request on these grounds. It also demonstrates that you should always refer to guidance provided under the Aarhus Convention and its associated EU Directive, to help you interpret EIR exceptions correctly. Link to second edition of Aarhus guidance.

  • Take care when providing comments based on personal understanding

It is often helpful to provide context and comments to help a requester understand the information you are providing - indeed you have a duty to advise and assist requesters. However, be careful that, in trying to be helpful, you don't provide views based on your personal understanding of the case which might be misinterpreted by the requester. Make it clear when you are referring to recorded information, and when you are referring to your own understanding or views.

  • Information held by a body under delegated powers may not be accessible

Where a Scottish public authority has delegated its powers to another organisation, it may be that any information held by the other organisation is not held by the authority for the purposes of FOISA or the EIRs. This was the case in Decision 221/2013. This can be difficult for applicants, who may reasonably expect the information to be held by the authority. It's good practice to explain the situation to the requester, so that they can understand why they don't have a legal right to the information in these circumstances.

  • Consider narrowing your request if asked - it may lead to a better outcome

If you ask for information, and the authority gets in touch to suggest you narrow the focus of your request to avoid the problems of excessive cost or burden, it's a good idea to give this serious consideration before refusing. In Decision226/2013, the requester didn't accept that their request was phrased too broadly and would create an unreasonable burden. If they had narrowed the focus of their request, they may have received more information.

Summary of decisions:

Mr Hutcheon asked Ministers for details of engagements a named civil servant had undertaken with Alex Salmond's wife, and for details of any car journeys made by a Ministerial spouse. Ministers stated that they did not hold this information. When Mr Hutcheon appealed to us, Ministers explained that any engagements involving Mrs Salmond would likely be in support of the First Minister and there would be no business need to record these separately. Ministers also explained that the car logging system records the Minister who has booked use of the car, but does not give information on other passengers. The Commissioner accepted that Ministers did not hold the information.

When Mr Y asked for as review of the SPS's original decision to his request, it failed to respond to him. When he appealed to the Commissioner we alerted the SPS who apologise, citing an administrative error - Mr Y's request for review was scanned in, but not forwarded to the relevant prison. The SPS responded to Mr Y's request for review during the investigation.

Mr Robb asked SNH for information about a license relating to the ringing of peregrine falcons. The SNH told Mr Robb it did not hold it, explaining that the licence would have been granted by the British Trust for Ornithology (BTO) under powers delegated to it by the SNH. Appealing to the Commissioner, Mr Robb claimed that SNH had ultimate responsibility for issuing the licence and could not abdicate this responsibility to the BTO. The SNH said that BTO was not required by law to provide it with information on the licenced activities and so BTO did not hold the information on SNH's behalf. The Commissioner accepted that BTO, which is not subject to FOISA or the EIRs, held the information independently of the SNH.

Mrs Flynn asked the Council for details of the person who authorised a tape recording of a meeting with her family, and any minutes ordering the recording to take place. The Council stated that no formal surveillance had taken place - the recording was made by a Council employee without authorisation - so it did not hold the information Mrs Flynn was asking for. The Commissioner found that the searches carried out by the Council were adequate and that the Council did not hold the information. Although Mrs Flynn remains convinced that the Council authorised the recording, the Commissioner found no evidence to support this conclusion.

Mr Reid asked HIE for any correspondence it had received from a named individual concerning him or his company. HIE withheld the information on grounds that it would harm the commercial interests of the Harris Tweed industry if released. The Commissioner agreed. Given the nature and details of the correspondence, the Commissioner believes its disclosure would be likely to damage the industry generally - bearing in mind that disclosure under FOI is to the world at large, not just to Mr Reid. She also considered that the correspondence would only provide one side of the discussion between HIE and the individual, which would not allow the public to draw any conclusions about the matters raised - and she concluded that the public interest in preventing harm to the industry outweighed the public interest in disclosing the information.

Mr Maddox asked Ministers for correspondence received from Scottish sporting bodies relating to their views on the independence referendum and constitutional change. Ministers refused to disclose correspondence on the ground that it related to the formulation of government policy - which the Commissioner accepted. Having balanced the public interest in disclosing the information against the public interest in withholding it, the Commissioner found that there was a strong public interest in protecting early policy information from misinterpretation, particularly given the high profile sporting events taking place in Scotland in 2014. In addition, Ministers seemed to have assured the sporting bodies that their views would be treated in confidence - this might not be appropriate in all circumstances, but nonetheless the Commissioner took it into account here. She upheld Ministers' decision to withhold the information.

  • Decision 225/2013 - River Creran Improvement Association (RCIA) and Scottish Ministers

RCIA asked for information provided to Ministers by fish farm operators in Loch Creran under their audit and review process. The Ministers refused it under the EIRs, on the grounds that it had been provided by a third party whose interest would be harmed if it was released, who were not under any legal obligation to provide it, and who had not consented to its release. The Aarhus Convention (which underpins the EU Directive behind the EIRs) specifies that bodies who are active parties to any transaction are not "third parties". In this case, the fish farm operators were seeking planning permission, so were active parties rather than third parties. The Commissioner also concluded that, having applied for planning permission, fish farm operators were obliged to provide the requested information to Ministers. She also found that Ministers' arguments concerning potential harm to the operators' interests were not convincing, and she ordered release of the information.

  • Decision226/2013 - Firrhill Community Centre (FCC) and City of Edinburgh Council (the Council)

FCC asked for a wide range of information regarding flooding in the EH13 area of Edinburgh. The Council provided some information, but invited FCC to narrow the remainder of its request. FCC did not narrow the request, and the Council concluded that responding to the remainder of the request would be manifestly unreasonable. The Commissioner agreed. The Commissioner also found that, by advising FCC to narrow the request, the Council had complied with its duty to provide advice and assistance to FCC in line with its obligations under the EIR.

A request for review from Mr Sabato went unanswered by the Board, so he appealed to the Commissioner. The Board acknowledged that it had not responded, commenting that the likely reason was the high volume of requests it received from Mr Sabato relating to the same subject matter. The Commissioner found that the Board had failed to comply with FOISA, and ordered it to carry out a review of his request.

Mr X asked for information regarding prison fitness facilities. The SPS provide some information to Mr X, and then provided further information when he requested a review, and again when he appealed to the Commissioner. The Commissioner found that the SPS held no further information, but had failed to release all relevant information to Mr X when he had asked for it. She also noted that the SPS's initial response included some personal understanding and views, which confused matters as to what recorded information the SPS actually held.

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