Decisions Round-up: 15 to 19 October 2012

We published six decisions this week.


Key messages:

  • Help requesters to narrow their requests

This week's decisions include two where requests were correctly refused because the cost of dealing with them would exceed ?600.  In one case the requester was offered practical advice on how to narrow his request ? and ultimately went on to receive information.  In the other, the Commissioner found a breach of the duty to provide advice and assistance, as this offer was not made.

Authorities, offer requesters practical options on how to narrow the scope of their request.  Doing so can often prevent an appeal coming to us, or increase the likelihood the Commissioner will find in your favour.  And requesters, don't rule out the benefits of narrowing your request, as it can mean you receive some information without the inconvenience and delay caused by making an appeal to us.

  • Make it clear if you do not hold information

If you do not hold the information which has been requested, remember to say so up front.  It is easy, in the effort to provide advice and assistance to an applicant, to overlook the need to be explicit about this, and this may lead to confusion.

  • Consider publishing information which is the subject of a large number of requests

If you experience a large increase in requests around a particular topic, consider how much information you can proactively publish.  By publishing what you can, you may enhance your reputation by demonstrating a willingness to be as open as possible about a subject which is clearly attracting interest.  You may also reduce the number of requests you receive.

Summary of decisions:

Mr K asked Ministers for information relating to the contact between the Scottish Government and the Americans for an Independent Scotland Group.  The request was so broad that a government-wide trawl would have been needed, which Ministers argued would cost more than ?600 to deal with.  Ministers offered Mr K some options on how he could narrow his request, but he did not accept them, appealing to us instead.  He did go on to make a new, narrowed request which Ministers were able to respond to by providing information.

When SAL asked the council for the name of a subcontractor, the council refused, citing section 36(2).This exempts information if it was provided by a third party and its disclosure would constitute an actionable breach of confidence.  Correspondence with a contractor was also refused on the grounds of commercial interests.  The subcontractor's name was not passed to the Council by a third party (so s36(2) could not apply); nor did the Council explain why the name was confidential.  The Commissioner ordered its release.  She also found that release of the correspondence would not cause substantial harm to the Council's commercial interests.

Mr G asked the SPCB for copies of MSPs' first aid certificates.  Individual MSPs are not under the direction or control of the SPCB and run their own constituency offices (including making arrangements for first aid) independently.  They are not, as individuals, covered by FOI laws simply because the SPCB is.  The SPCB responded to Mr G's request by trying to explain this ? they should also have advised him that they did not hold any information falling within the scope of his request.

This is the latest in a number of decisions, some of which have been reported in previous Round-ups, which relates to an on-going investigation about statutory notice repairs at the Council.  Mr Verity asked for names of staff who had been dismissed.  The Council withheld the information under the EIRs on the grounds it would prejudice its ability to conduct an investigation of a criminal or disciplinary nature.  The Commissioner agreed, and concluded that it was in the public interest that any individuals under an investigation which could lead to criminal proceedings, were able to receive a fair hearing.

Mr H asked for information relating to a specific incident at HMP Peterhead, including whether any prisoner or staff member was charged or found guilty of an offence and had been punished.  Under the circumstances, this was sensitive personal data, the release of which would breach the Data Protection Act 1998.  The SPS refused to release it and the Commissioner accepted this.

Mr Burns asked the Council for information relating to legal issues at the new Portobello High School.  The Council argued that the information requested was substantial (it included nearly 4,000 emails relating to a legal challenge in 2006) and was held across a number of departments, meaning it would cost more than ?600 to comply.  The Commissioner accepted that, but as the Council did not contact Mr Burns to help him narrow his request, she also found that it had failed in its duty to advise and assist him.

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