Decisions Round-up: 16 to 20 April 2018

Balancing the public's right to information against the protection of personal data can be a challenging area - and next month's implementation of new data protection laws will only bring this to the fore.

This week we feature a number of cases which consider this balance - including one where we ordered the disclosure of personal data, and another where we found that information definitely shouldn't be disclosed - despite similar information having been released previously.

Learning points:


  • There may be cases where personal data can be disclosed
    When considering a request for someone's personal data, authorities normally have to balance the rights of the requester against the rights of the person whose data it is. If the requester's rights outweigh those of the data subject, the information should, in most cases, be disclosed.

    In Decision 045/2018, no-one involved in a job evaluation process had been told that their information would be kept confidential and, in any case, the information related more to the roles being evaluated rather than the people who occupied them. We didn't believe disclosing the information would involve any significant harm to the rights of the staff, finding that these rights were - in this case - outweighed by the rights of the requester to have the information.


  • Make sure you understand the request before responding
    It's important for authorities to ensure they read any request for information carefully, to understand fully what the requester is asking for. In Decision 046/2018 it was clear that the request was for communications between the authority and a third party only - but the authority spent unnecessary time and effort also looking at internal communications on the same subject.


  • FOI information is public information
    Disclosure in response to an FOI request is disclosure into the public domain, not just to the person who asks for it. It's important to bear this in mind when asking for someone else's personal data or (as in Decision 048/2018) where the authority claims it wouldn't be in the public interest to reveal whether information exists. There may be cases where it is appropriate to reveal information to a requester, but FOI disclosure to the world at large would be a different matter.


  • A previous wrong won't justify disclosing personal data to the world
    When we look at appeals involving personal data, it's vital that we follow the rules for processing in data protection law. If an authority has got it wrong by disclosing someone's personal data previously, that can't be a reason for us requiring the authority to disclose similar personal data about someone else. That was one argument made to us by the requester in Decision 050/2018 which we couldn't accept.


  • Failure to respond? The next step is a review
    Where an authority fails to respond to an information request within 20 working days, the requester can ask for a review. They don't even have to use the word "review": if they write to the authority after 20 working days expressing any dissatisfaction with the failure to respond, this should be treated as a review request. After the authority has responded to this the requester's next step (if they're still unhappy) will be an appeal to the Commissioner. In other words, the authority won't get a second chance to consider the request before an appeal (Decision 052/2018).

Decisions issued:


  • Decision 045/2018 Ms K and Chief Constable of the Police Service of Scotland (Police Scotland)
    Police Scotland were asked for a range of information about job evaluation in a specified team. They provided some information, and decided that some should be withheld under exemptions. They also stated that they didn't hold some information, and that other information was available online.

    Following an investigation, we partially upheld Police Scotland's response. We accepted that some information was exempt from disclosure or not held by Police Scotland. However, we didn't accept that exemptions applied to all the withheld information and ordered Police Scotland to disclose information which was wrongly withheld.


  • Decision 046/2018 Graham Allison and Keeper of the Registers of Scotland (RoS)
    RoS was asked for correspondence regarding changes to its INSPIRE Licence Agreement. It disclosed some information, and disclosed further information during our investigation.

    During the investigation, RoS also accepted that it had taken into account a substantial amount of information that wasn't covered by the request. It continued to withhold the rest of the information, which it believed would cause substantial prejudice to commercial interests and the effective conduct of public affairs if it were made public.

    We weren't satisfied that there was sufficient evidence of substantial prejudice and ordered the information to be disclosed.


  • Decision 047/2018 Jim Donnelly and Chief Constable of the Police Service of Scotland (Police Scotland)
    Police Scotland were asked for information regarding an incident in 2002. They refused to comply with the request, arguing that it was identical to previous information requests and so was a repeated request. We agreed that Police Scotland could refuse to comply on that basis.


  • Decision 048/2018 Mr M and Chief Constable of the Police Service of Scotland (Police Scotland)
    Mr M asked for records of a deceased person. Police Scotland refused to confirm or deny whether the information existed or was held by them. We accepted that it would not be in the public interest for Police Scotland to reveal this.


  • Decision 049/2018 Mr & Mrs R and Inverclyde Council
    Decision 050/2018 Mr & Mrs S and Inverclyde Council
    In these two cases the Council was asked for representations it had received about a planning application. It withheld information on the basis that it was personal data, which we agreed it was entitled to do.


  • Decision 051/2018 Mr Z and Crown Estate Scotland (Interim Management)
    Mr Z asked for records of the entitlement of Ballachulish Estate to part of the foreshore. Crown Estate Scotland considered the request manifestly unreasonable and refused to respond on that basis. We agreed that the request was manifestly unreasonable, considered in the context of previous correspondence from Mr Z.


  • Decision 052/2018 Brian Gourlay and West Dunbartonshire Council
    Mr Gourlay asked for details of behaviour which had led it to seek advice from Police Scotland. The Council initially failed to respond to the request. It then gave notice that it didn't hold any information. During our investigation, the Council stated that it now took the view the request was vexatious. Given this significant change in position, we required the Council to carry out a fresh review and inform the requester of the outcome.


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