Decisions Round-up: 15 December 2014 to 9 January 2015

The learning points from the decisions published between 15 December and 9 January highlight both the importance of requesters taking the time to set out their requests carefully so they can be understood by the authority, and of authorities taking time to assist requesters where a request is not clear.


Key messages:

  • Does the request adequately describe the information the requester wants?
    For requests to be valid under the FOI Act, they have to describe the information requested. If they don’t, authorities should ask requesters to clarify their request. Two of the decisions we issued recently deal with whether the request adequately described the information.

    In Decision 255/2014, the authority argued that a request for its board minutes was invalid because the request didn’t refer specifically to the subject matter of the information. We disagreed and found that the requester had adequately described the information. This can be compared with Decision 254/2014, where it was not possible to work out what one of the requests was for. A useful reminder for requesters to set out their requests carefully – and to ask the authority for assistance if you think you need it.

  • Assist requesters before applying the EIRs "formulated in too general a manner" exception
    When responding to requests for environmental information, authorities can refuse to respond if a request is formulated in too general a manner. However, authorities can’t apply this exception unless they’ve already asked the requester to provide more particulars and have assisted the requester to do so. In other words, the authority must have given some advice and assistance to the requester about the types of information it needs to clarify the request.

    In Decision 261/2014, the authority had asked the requester to clarify the request but hadn’t given the requester any assistance to do so. As a result, we found the authority was not entitled to apply the exception.

  • Authorities: can you prove the exemption applies?
    In a number of the decisions issued over the past few weeks, the public authority has not been able to satisfy the Commissioner that exemptions actually apply. For example, in Decisions 253/2014 and 259/2014, the public authority told us that disclosure of information would prejudice substantially ongoing negotiations about equal pay claims. But the authority did not evidence how disclosure of the information in question would have this effect, so we ordered the authority to disclose the information.

    This can be compared with Decision 256/2014, where the authority was able to provide a clear explanation of how disclosure of the requested information would prejudice its commercial interests. In that case, we agreed the information should be withheld.


Decisions issued:

  • Decision 253/2014 Mark Irvine and North Lanarkshire Council
    Mr Irvine asked the Council for a copy of a 2005 report made to its Corporate Management Team about the Council’s job evaluation scheme. The Council refused to disclose the information – the Council was still in negotiations aimed at settling equal pay claims and was concerned that disclosure would disrupt the negotiations. However, the Council failed to provide us with evidence that harm would occur. We ordered the Council to disclose the information, with personal information redacted (blacked out).

  • Decision 254/2014 Unison and Edinburgh Leisure (EL)
    Unison asked EL (a not-for-profit company which manages sport and leisure services on behalf of City of Edinburgh Council) for information about its job evaluation process, including the scoring matrix it used and its rationale for various aspects of its pay structure. EL disclosed some information to Unison, but withheld other information, arguing that disclosure would substantially prejudice the commercial interests of the consultancy company which had developed the matrix. We agreed that this information shouldn’t be disclosed.

    EL refused to disclose benchmarking data, saying that it would constitute an actionable breach of confidence. We disagreed. The information was created by EL from information in the public domain, so disclosure could not lead to an actionable breach of confidence. We also found that Unison’s request for the rationale behind certain aspects of EL’s pay structure was not a valid request - it was not clear what information Unison wanted, and the request didn’t adequately describe the information. We ordered release of this information.

  • Decision 255/2014 Shetland Islands Council and Highland and Islands Airports Ltd (HIAL)
    The Council asked HIAL for copies of board minutes from 2002 onwards. HIAL told the Council the request was invalid because it did not refer specifically to the subject matter of the information. We found that the request was valid: the Council had asked for a discrete and readily identifiable set of information and the request adequately described that information. We ordered HIAL to respond to the request.

  • Decision 256/2014 Paris Gourtsoyannis and Transport for Edinburgh Ltd (TFE)
    Mr Gourtsoyannis asked TFE for detailed information about the first month of the operation of the Edinburgh tram service, including a breakdown of passenger numbers by category, and the total amount raised in fees by each category. TFE refused to disclose the information because disclosure would substantially prejudice its commercial interests. We agreed that TFE had been entitled to withhold the information; TFE was able to clearly explain how the disclosure of the information would prejudice its commercial interests.

  • Decision 257/2014 Morris Macleod and CalMac Ferries Ltd
    Mr Macleod asked CalMac for the Safety Management System Manual for a vessel which was then under construction. CalMac believed Mr Macleod’s request covered a very wide range of material and refused to disclose it on the basis that disclosure would damage its commercial interests. During the investigation, it became clear that the information which Mr Macleod considered to be covered by his request was much narrower than the information identified by CalMac. We found that CalMac had failed to give Mr Macleod reasonable advice and assistance when responding to his request. We required CalMac to engage with Mr Macleod and to provide him with a revised response.

  • Decision 258/2014 Alison S Mackenzie and the Police Investigations and Review Commissioner (PIRC)
    Ms Mackenzie asked PIRC for copies of all correspondence between PIRC and Police Scotland relating to three complaints she had submitted. PIRC disclosed the correspondence, but redacted the personal data in the correspondence (including the personal data of Ms Mackenzie). Ms Mackenzie confirmed she did not need the personal data. We were satisfied that PIRC had identified and disclosed (subject to the redaction of the personal data) all of the information it held.

  • Decision 259/2014 Mark Irvine and North Lanarkshire Council
    Mr Irvine asked the Council for a copy of an email it sent Unison in 2006 concerning an equality impact assessment. The Council argued that disclosure would substantially prejudice ongoing negotiations on equal pay claims and so would prejudice substantially the effective conduct of public affairs. We ordered the Council to disclose the information. The Council had failed to provide us with evidence as to how prejudice would occur or how disclosing the actual information in the email would undermine the Council’s negotiating position.

  • Decision 260/2014 Caragh O’Neill and South Lanarkshire Council
    Ms O’Neill asked the Council for the contents of five emails between its Planning and Education services about a new primary school in Biggar. She described the information she wanted by reference to the subject, date and time of each email. This information in the emails was environmental information. The Council refused to disclose the emails, arguing that they comprised internal communications and the public interest favoured withholding the information. We agreed. While we accepted that the proposal for a new school was an issue of public concern, we were satisfied that the content of the actual emails would not contribute to any of the public interest issues advanced by Ms O’Neill.

  • Decision 261/2014 Royal Society for the Protection of Birds (RSPB) and the Scottish Ministers
    The RSPB asked the Ministers for information about bird populations. The Ministers asked the RSPB to clarify the request. The RSPB confirmed they were interested in the impact of named east coast wind farm projects on bird populations. The Ministers subsequently refused to disclose the information, arguing that the request was formulated in too general a manner under the Environmental Information Regulations. Public authorities can only use this provision if they have asked the applicant to provide more particulars about the request and have assisted the applicant to do this. We concluded that the Ministers had failed to assist the RSPB in clarifying their request and ordered them to issue a different response.

  • Decision 262/2014 Mark Howarth and the Scottish Ministers
    In 2006, the Scottish Parliament’s Justice Committee recommended that all applicants for social rented housing should say whether they are registered sex offenders. In a 2009 report to the Committee, the Ministers said they could not implement this recommendation as it would be contrary to the European Convention on Human Rights. Mr Howarth asked the Ministers for the legal advice they based this report on. The Ministers refused to disclose the advice, arguing that it was subject to legal professional privilege and the public interest favoured withholding the information.

    Mr Howarth accepted that legal professional privilege applied, but argued that there were very strong public interest arguments in knowing why the recommendation was not followed. While we recognised there were compelling arguments about why the information should be disclosed, we concluded that the public interest favoured withholding the advice. The Ministers’ report to the Justice Committee had gone a long way to addressing the public interest in favour of disclosure and arguments in support of disclosing the information had to be balanced against the public interest in allowing Ministers to seek and receive comprehensive legal advice in confidence.

  • Decision 263/2014 Mr Y and South Lanarkshire Council
    Mr Y wanted to know who was the legal owner of a dog. The Council refused to disclose the name, arguing that disclosure would breach the Data Protection Act. We agreed.


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