Decisions Round-up: 15 to 19 February 2016


Reviews are a second chance to get FOI right, as one authority finds in this week's Decisions Round-up...but if a request is for environmental information, remember that the EIR timescale extension can't be used at the review stage...

Key messages:

  • Reviews are a second chance to get it right
    Requesters have to ask an authority to carry out a review before they can appeal to the Commissioner. Reviews are a good opportunity for authorities to put earlier mistakes right. In Decision 029/2016, the authority realised, at review, that most of the information the requester has asked for could be disclosed.
  • Authorities can extend the time for responding to requests for environmental information - but not at review stage
    Unlike the FOI Act, the EIRs allow public authorities to extend the time for responding to requests which cover a lot of complex information by up to 20 working days. However, this can only be done at the initial response stage. The EIRs don't allow authorities to extend the 20 working day time limit for responding to reviews. Decision 034/2016 looks at a case where an authority tried to do just that.
  • It's good to be helpful - but don't forget your FOI duties
    It's good practice to give requesters some background information when you answer their request, but don't forget you've still got to comply with the FOI Act. In Decision 028/2016, the authority tried to be helpful by giving the requester some background information, but didn't explain that it didn't hold any information falling within the scope of the request. This ended up confusing the requester and made the case more complex than it could have been.
  • Check what information is already in the public domain
    In Decision 030/2016, the authority refused to disclose personal data on the basis that disclosure would breach the data protection principles. We found that the personal data could be disclosed, given other information already in the public domain.
  • Regulation 10(5)(f) of the EIRs: does information have to come from third parties?
    Regulation 10(5)(f) of the EIRs allows public authorities to refuse to disclose information in certain circumstances, where disclosure would harm the interests of the person who provided the information.

    In Decision 032/2016, the authority argued that information could be withheld, even though it did not come from a third party. The decision explains why the information must come from a third party before this regulation can be applied. We also recognised that, if internal correspondence includes information from a third party, that information might still be covered by the exception. Our EIR Guidance has more advice on applying regulation 10(5)(f).
  • Providing evidence to support your submissions
    If a case has been appealed to the Commissioner, it always helps if you can provide evidence to support your submissions. This can sometimes come from third parties (the Section 60 Code says that public authorities should consult third parties where disclosing information would affect them). In Decision 035/2016, we gave the authority an opportunity to consult third parties and to make additional submissions. The authority didn't do this, and our decision orders disclosure as we didn't accept the arguments they'd originally made.

Decisions issued:

  • Decision 028/2016 Jackie Baillie MSP and the Scottish Ministers
    Ms Baillie asked the Ministers about meetings with the oil and gas industry to discuss the publication of a new oil and gas bulletin. We were satisfied that the Ministers did not hold any information which fell within the scope of the request.
  • Decision 029/2016 Mrs X and Glasgow City Council
    The Council was asked about a complaint it had received about the removal of a tree. Although the Council initially withheld the information, it disclosed most of it after carrying out a review. It withheld the remaining information (third party personal data) under the EIRs. The Council disclosed some further information to Mrs X during the investigation. We agreed that the rest of the information should not be disclosed.
  • Decision 030/2016 Millar & Bryce Ltd and Aberdeenshire Council
    Millar & Bryce provides a property enquiry certificate service to the public. They asked the Council for a list of properties that do not pay for water or wastewater services in their council tax bill. The Council refused, arguing that disclosure would breach the Data Protection Act. We agreed that the information was personal data, but were satisfied that disclosure would not breach the first data protection principle. We ordered release
  • Decision 031/2016 Claire Miller and the Scottish Ambulance Service Board
    Ms Miller asked about the number of addresses that had been "red-flagged" or marked on the Board's systems as requiring police support before ambulance crews or paramedics could enter. The Board failed to respond within the timescales set down by the FOI Act.
  • Decision 032/2016 Walter Stewart Dickson and Aberdeenshire Council
    Mr Dickson asked the Council for correspondence with a developer about a planning application. The Council decided that all of the information should be withheld under regulation 10(5)(f) of the EIRs. We disagreed. The Council had interpreted the exception too widely, by including internal communications. Even where the information came from a third party, we were not satisfied that disclosing it would cause substantial prejudice.
  •  Decision 033/2016 Dr Nic Honhold and City of Edinburgh Council
    Dr Honhold asked about two planning applications. The Council disclosed some information, but withheld the remainder, claiming that disclosure would harm the commercial interests of the developers. We agreed that some information would cause harm, but required the Council to disclose the rest. We also ordered the Council to carry out a further review to consider new information it had found during our investigation.
  • Decision 034/2016 Graham Sutherland and Glasgow City Council
    The Council was asked about the marketing and sale of a piece of land in Glasgow. The Council disclosed information to Mr Sutherland in response to his request and, later, during the investigation. We agreed that the remaining information was commercially confidential and could be withheld under the EIRs. However, we also found that the Council had failed to respond to Mr Sutherland's request for review within the EIR timescales.
  • Decision 035/2016 Paul Hutcheon and the Scottish Minsters
    Mr Hutcheon asked the Ministers about the Rare Conditions Medicines Fund and the New Medicines Fund. He wanted to know which 10 drugs had taken up most of the budget and what had been spent on each of the drugs. The Ministers withheld the information - they argued that disclosure would prejudice the effective conduct of public affairs and the commercial interests of the pharmaceutical companies supplying NHS Scotland. We did not agree and ordered them to disclose the information.

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