Decisions Round-up: 15 to 19 July 2013

We published six decisions this week.


Key messages:

  • Requests from employee should not be treated any differently

Both FOISA and the EIRs provide a right to information to anybody who asks for it. There are no specific provisions in either law restricting the rights of public authority employees - remember the legislation is "applicant blind". You should treat requests from your employees in the same way as you would treat a request from any other individual.

  • Be diligent when you receive multiple requests on the same subject matter

Make sure your logging and monitoring systems make it possible for you to keep track of all requests, even where you receive several on the same subject. Careful tracking is essential to avoid requests, or requests for review, from being missed.

  • The Commissioner cannot investigate whether information should be held

The Commissioner's remit extends to considering whether information which has been asked for is held and should be released under FOISA or the EIRs. She cannot comment on whether a public authority ought to hold recorded information on any particular issue.

  • Be specific when applying exemptions

This is an issue which comes up regularly as a learning point in Decisions Round-up. If you wish to apply an exemption, you must provide arguments as to why it applies to the specific information you want to withhold. Overly-general arguments are unlikely to be accepted - and if you can't make a specific argument, you should ask yourself whether the exemption actually applies.

  • The threat of harm should be real and imminent

In exemptions where you are required to demonstrate that release of information will cause harm, we expect you to be able to demonstrate that the likelihood of harm is real and imminent, not just a theoretical possibility. If you cannot provide evidence or arguments that support this, ask yourself whether the case for harm is strong enough for the exemption to apply.

  • Signatures are unlikely to be released

The Commissioner is not likely to order disclosure of individuals' signatures, as it is difficult for an applicant to prove they have a legitimate interest in this personal data.

  • You are entitled to consult third parties

You are entitled to ask third parties for their views on whether information should be released, when its release would affect them. Third parties can provide valuable insight into the sensitivity of the information requested. These views can help you determine whether an exemption applies, and where the public interest lies in disclosure. However the final decision on whether to release the information must be yours. See Section 3 of Part 2 of the Section 60 Code of Practice.

Summary of decisions:

The Council did not respond to Ms Hamilton's request for a review of her FOI request. When she appealed, the Council apologised and explained that it had received a large number of requests on the subject of changes to its primary school estate and it had mixed this request up with others on a similar subject. This resulted in the request for review being overlooked. The Council has since responded to Ms Hamilton's request for review.

  • Decision 133/2013 Dr Glenn Rainey and Greater Glasgow and Clyde Health Board (the Board)

Dr Rainey asked the Board to review an information request he had made, but the Board did not provide a formal response, so Dr Rainey appealed to the Commissioner. The Board explained, during the investigation, that it had dealt with Dr Rainey's request as a "business as usual" request (i.e. it had not dealt with it under the Board's FOI procedures) because of the subject matter and Dr Rainey's position as a Board employee. The Board accepted it should have dealt with the request for review under FOISA.

Previously, the Council had responded to Allied Vehicles' request for correspondence about electrically propelled vehicles and correspondence mentioning Allied Vehicles. At the time we informed the company that, if they were unhappy with the way in which the Council had responded to the request, they could appeal to the Commissioner. However Allied Vehicles went on to make 24 requests to the Council asking for the same information, for each month between January 2010 and December 2011. When Allied Vehicles appealed, the Commissioner upheld the Council's assertion that these were repeat requests, as it had already provided the information (albeit for a longer period of time as opposed to split up by individual months).

Mr X asked the SPS for guidance it held in relation to the interpretation of a particular policy at Glenochil Prison. SPS stated it did not hold the information. When he appealed, Mr X told us that he had been informed by a staff member that guidance had been sought, so he expected SPS to hold it. However, the Commissioner was satisfied from the evidence of searches undertaken provided during the investigation, that SPS didn't hold the information Mr X had asked for.

Mr Jamieson asked the Council for details of a Minute of Variation relating to the Edinburgh Tram Project. The Council disclosed the minute, but redacted some information, claiming it was commercially confidential. When Mr Jamieson appealed, the Council provided no specific arguments as to why a legally binding duty of confidence should exist in relation to the actual information it had withheld, other than to say the Minute implied an obligation of confidentiality through co-signature by its parties. In addition, the Commissioner notes that the language used by the Council in its arguments was speculative (e.g. "could", "potentially"), suggesting the likelihood of harm was not sufficiently real or imminent for the exemption to apply.

Mr X asked the Council for a copy of its contract with the Central Borders Citizens Advice Bureau (CAB), which it supplied with some signatures redacted. When Mr X appealed, we found that the Council was entitled to withhold the signatures - the Commissioner could not see how Mr X had a legitimate interest in this personal data. Mr X had also complained that the Council had consulted with the CAB on whether the data should be released, but the Commissioner found it was good practice for the Council to do so - referring to the Ministers' Section 60 Code of Practice which offers guidance on this matter.


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