Decisions Round-up: 23 December 2013 to 10 January 2014

We have published 14 decisions since 23 December 2013.

Key messages:

  • An authority can change its mind when you ask for a review

Reviews give public authorities the chance to put right any mistakes they may have made when originally dealing with your request. At review, an authority can: confirm its original decision, with or without such modifications as it considers appropriate; come to a different decision; or reach a decision, where you have complained that it hasn't done so. The Commissioner has to look at what happened at review stage, not at how the authority initially dealt with the request.

  • Help requesters narrow their requests

If you ask a requester to be more specific or to narrow down their request so that it can be responded to within the £600 upper cost limit, the Commissioner will usually expect you to give the requester specific advice on how they can do this.

  • If in doubt, clarify

If it's unclear what information a requester wants, ask them. Investing a small amount of time making sure you know exactly what the requester is asking for may end up saving you a much larger amount of time dealing with an unnecessary appeal.

  • Tell the requester if you don't hold the information

If you don't hold the information a requester is looking for, you have a legal duty to tell them you don't hold it (except in the very limited circumstances where section 18 - neither confirm nor deny - applies). If you are concerned that this may come across as unhelpful you can, under your duty to advise and assist, explain the situation to the applicant.

  • Give the Commissioner withheld information

You're obliged to provide the Commissioner with copies of information you have withheld, when she is investigating a case. If you don't, she has the power to issue a legally enforceable information notice, compelling you to provide it to her. If you ignore an information notice you can be referred to the Court of Session where your actions may be treated as contempt of court, leading to a fine. It is far less costly and damaging to an authority's reputation to provide the information to us at the time of asking.

  • Make sure your review covers everything you're dissatisfied with

If you appeal to us, we can only consider those parts of your request for which you sought a review. If you've made a number of requests in the same letter or email, check whether the authority has answered all of the requests before asking it to carry out a review. In Decision 299/2013, a public authority failed to respond to one of the requests made in a letter. The applicant didn't notice, so didn't mention this when seeking a review. This meant we were unable to investigate the failure to respond.

  • Information relating to the formulation of government policy

The section 29(1)(a) exemption can be applied to information which relates to the formulation or development of government policy and not just to the formulation or development of government policy. It is therefore broad in its scope, although it is of course subject to the public interest test. It can include information from third parties which are independent of government, and which is then used by government to inform the formulation of policy.

  • Do not make unverified assumptions about an applicant

In Decision 295/2013, the authority assumed that the requester had access to particular information, but did nothing to verify this with him. In fact, the applicant didn't have access to the information. As a result the Commissioner had to find that it had failed to comply with its obligations under FOISA. Always check with the requester to clarify any assumption you are tempted to make.

  • Environmental information requests MUST be dealt with under the EIRs

If the information which you have been asked for is environmental information, you have a legal obligation to deal with it under the Environmental Information (Scotland) Regulations 2004 (the EIRs) - even where the impact on the applicant of applying FOISA instead doesn't appear to be great. FOISA includes an exemption which permits you to deal with a request for environmental information under the EIRs alone. If you don't apply that exemption, you must deal with the request under both FOISA and the EIRs. If you're unsure about the definition of environmental information, view our briefing (link).

  • Have realistic expectations

If you ask authorities for information in a particular format, be realistic about what the authority should do to provide it in that format. It may not be unreasonable for an authority to expect you to undertake your own analysis of data provided to you, as long as it's evident from the data what analysis is needed to reveal the information you're looking for.

  • If you request a review, say why you are unhappy

It's not enough, if you ask an authority to review its response to a request you have made, to simply state that you are unhappy. You have to explain why you are not satisfied with the authority's response. If you don't give a reason for your dissatisfaction, then your request for review will not be valid.

  • Don't apply exemptions "blanket-style"

 If you want to apply an exemption to information, you must be able to explain why it applies to all of the information you are withholding under it. If you can't, the Commissioner will order you to disclose the information.

Summary of decisions:

Mr Mackenzie asked for information about the Council's Anti-Social Behaviour Policy. When he appealed, Mr Mackenzie complained that there were errors in the way the Council had dealt with his request for review, including the fact that the document he was sent following the review was different to the original he received following his initial request. However, the Commissioner found that the Council was entitled to amend its initial response, following Mr Stewart's request for review.

Mr Laing asked the Ministers for information about a trip to China by Humza Yousaf MSP. The Commissioner found that the Ministers had correctly refused the request on the basis of section 12 of FOISA (excessive cost). However, although the Ministers had provided Mr Laing with some advice on narrowing down his request, in practice they did not provide him with the information he needed.

Mr Jakma asked Transport Scotland for information on the commissioning of the "Nice way code". Transport Scotland told him it didn't hold any relevant information and gave him contact details for Cycling Scotland (which commissioned and developed the code). While Cycling Scotland receives funding from Transport Scotland, it is not a public authority subject to FOISA. Mr Jakma appealed to the Commissioner, as he believed that Transport Scotland did hold the information - after an investigation, we concluded that Transport Scotland did not hold any relevant information. Our decision notes that Cycling Scotland told Transport Scotland that it will respond to any related request from Mr Jakma as helpfully and openly as possible.

Inverclyde Council responded to Mr Keogh's request for the number of days a named employee had been at work over a given time period by informing him that disclosure would breach data protection law. Our investigation agreed that the information requested was the employee's personal data, and that disclosure would breach the first data protection principle. The Council was therefore correct to withhold the information under section 38(1)(b) of FOISA.

Mr Longmuir asked for communications between Education Scotland and the Commission on Delivery of Rural Education (CDRE). Education Scotland provided some information, withheld some on the grounds that its release would inhibit free and frank exchange of views, and stated it did not hold the rest. When Mr Longmuir appealed, Education Scotland confirmed that it also wanted to withhold some information on the grounds it related to the development of government policy. Mr Longmuir objected that this could not be the case, given that CDRE is not part of Government, but the Commissioner found that the exemption did apply. She also found that Education Scotland had not applied the correct exemption when they withheld Mr Longmuir's own personal information.

Mr Cowan asked the Police for legal advice about their decision to stop using volunteer air assets. Mr Cowan is chair of the Civil Air Patrol (CAP), which has in the past provided private aircraft and pilots to assist in searches for missing people, etc. Police Scotland decided to stop using volunteer air assets after taking legal advice. When Mr Cowan appealed, the Commissioner found that the Police had the right to withhold the legal advice - the public interest in its release did not outweigh that in maintaining the confidentiality of communications between a legal adviser and their client.

Mr Sabato asked the NHS about the keys and CCTV cameras used at a residential accommodation complex. The NHS wrote to Mr Sabato saying it was withholding the information in the interests of the safety and security of its staff, but made no reference to FOISA. Mr Sabato sought a review, but did not say why he was dissatisfied. This meant that his request for review was invalid. When he later clarified why he was dissatisfied with the response, the NHS withheld all of the information under section 39(1) i.e. it would endanger the health and safety of an individual. When Mr Sabato appealed, the Commissioner found that most of the information could be withheld under this exemption.

A technical decision, where we found that the SPA had not responded to Mr Roulston's request for review within 20 working days. The Commissioner required the SPA to provide Mr Roulston with a response to his request for review.

Mr Campbell asked for information about the resale value of primary schools. The Council withheld the information on the grounds it was commercially sensitive. When Mr Campbell asked for a review, the Council didn't review a part of his request, because it understood he had now accessed these figures from a third party. However, it didn't clarify this with Mr Cowan, and it is clear from his correspondence that he did not have access to the figures. The Commissioner found that the Council had not complied with FOISA because it had not undertaken a proper review.

Mr Q asked the Police for information relating to an incident involving inappropriate emails sent by police officers. It was unclear in one of his requests whether Mr Q wanted the number of officers in each rank or a list of the ranks involved. The Police treated it as a request for the former, and refused to disclose the information on the grounds it was held for the purposes of a criminal investigation. The Commissioner found that had the Police interpreted the request correctly, they would have been able to tell Mr Q that the list of ranks was in the public domain already. The Police also failed to tell Mr Q they didn't hold some of the information he asked for - they felt it would be unhelpful to do so, but the Commissioner found they had a legal obligation to tell him.

Robert Potter & Partners asked the Council for everything it held in relation to a site at Ladyfield in Dumfries. The Council provided some information, and more after the requester had asked for a review. Robert Potter & Partners appealed to the Commissioner, claiming that further information existed. During the investigation, the Council confirmed it had processed the request under FOISA. The Commissioner found that the request related to a substantial residential development (i.e. environmental information) so the Council should have dealt with it under the EIRs.

LTRAG asked the SPSO for information it had received about a public authority during a complaint investigation. The SPSO withheld the information on the grounds that other legislation prohibited it from being disclosed. It argued that the SPSO Act says information obtained by the SPSO in connection with a complaint cannot be disclosed except in a limited range of circumstances, which don't include disclosure under FOISA. When LTRAG appealed, the Commissioner upheld the SPSO's position, but found that some of the information requested was in fact environmental and so wasn't coved by the exemption which the SPSO had applied. However, she accepted it could be withheld under the EIRs, as its release would cause substantial prejudice to the confidentiality of the SPSO's proceedings. The Commissioner also found that the SPSO had already provided LTRAG with some of the information it had asked for, but in failing to tell them so, the SPSO had failed in its duty to advise and assist LTRAG.

Mr McLaughlin made seven requests about Scotland's future in Europe. The Ministers only responded to six of the requests. Mr McLaughlin asked the Ministers to review these six responses and then appealed to us. During the investigation, Ministers failed to provide us with the information they had withheld, and the Commissioner issued a formal information notice to Ministers. They didn't respond to the notice on time, eventually complying when the Commissioner considered enforcing the notice by referring it to the Court of Session. This greatly extended the time it took to complete the investigation. We found that Ministers had been entitled to withhold the information, but had not complied with statutory timescales. We could not come to a decision on the seventh request (which Ministers had not answered), because Mr McLaughlin had not asked the Ministers to review their failure to respond.

Ms Lovett asked the Ministers for information about construction projects they held on a centrally held Infrastructure Database. The Ministers advised Ms Lovett that some of the information she had asked for was included in its Infrastructure Investment Plan, available on its website, but that it didn't hold other information she had requested on its database. However, when Ms Lovett appealed, the Commissioner found that Ministers had stated that some information was publicly available when in fact they didn't hold the information. She also found, in response to a complaint by Ms Lovett that information had not been provided in her preferred format, that it was reasonable of the Ministers to expect Ms Lovett to undertake some analysis of the data herself.

Back to Top