Decisions Round-up: 16 to 20 May 2016

Information requests often straddle both the FOI Act and the Environmental Information (Scotland) Regulations (the EIRs). There are lots of similarities between the FOI Act and the EIRs, but also a lot of important differences. One case this week highlights the differences between the "vexatious" test in the FOI Act and the "manifestly unreasonable" test in the EIRs.


Learning points:

  • "Vexatious" or "manifestly unreasonable"?
    Under the FOI Act, authorities don't have to comply with vexatious requests. There's a similar rule for "manifestly unreasonable" requests under the EIRs, but the two aren't identical. For example, the test in the EIRs is subject to the public interest test, but the test in the FOI Act is not. Decision 109/2016 highlights the importance of responding under the correct regime even where, as in this case, the information straddled both regimes.

    For more information about the differences between the FOI Act and the EIRs, see our briefing.


  • Make sure everyone handling correspondence can recognise information requests
    Not a new learning point by any means, but a new set of circumstances … In Decision 108/2016, the authority appointed an external solicitor to handle all correspondence with a company. However, the solicitor did not recognise an information request or request for review from the company. This led to us finding that the authority failed to comply with the FOI timescales.


  • Look at the wording of a request when deciding if information falls within scope
    Decision 110/2016 involved a request to a public authority about (1) the action it took following an incident at a school and (2) discussions the authority had with the school. The authority initially concluded that some information was outwith the scope of the request, because it wouldn't provide the requester with any useful insight into the actions it had taken. During the investigation, we explained that it is the wording of the request which matters, not what the authority thinks it would be useful to the requester to see. This led to the authority disclosing the information.


  • Damage to property - is it environmental information?
    Sometimes it is, sometimes it's not. Information about the condition of a built structure inasmuch as it is affected by the state of the elements of the environment will be environmental information. Decision 111/2016 looked at a case involving water damage to the inside of a flat as a result of a leak in a pipe in the flat above. We concluded that this wasn't environmental information. Although the information was about the condition of a built structure, we couldn't accept that, in this case, the leak from a pipe was about the state of the elements.


  • Personal data must relate to living individuals
    In two decisions published this week (Decisions 112/2016 and 113/2016), we found that public authorities had wrongly applied the personal data exemption to information which was not about living individuals. Information can only be personal data if it relates to living people. Since the requested information instead related to organisations or corporate entities, it was not personal data and could not be withheld under the exemption.


Decisions issued:


  • Decision 108/2016 Ibena Textilwerke GmbH (Ibena) and the Scottish Fire and Rescue Service (the SFRS)
    Ibena asked the SFRS about a procurement process it had undertaken. We found that the SFRS failed to respond to the request and the request for review within the FOI timescales.


  • Decision 109/2016 Company X and Dundee City Council
    Company X asked the Council for copies of risk assessments and site rules. The Council refused to comply with the request on the basis that it was vexatious. We found that some of the information was environmental, so should have been considered under the "manifestly unreasonable" rules in the EIRs. We concluded that Company X's request was not vexatious (or, for the information that was environmental, manifestly unreasonable). We required the Council to issue a different response to Company X.


  • Decision 110/2016 Joseph Walker and the Commissioner for Children and Young People in Scotland (CYPCS)
    Following complaints about Kingspark School in Dundee, Mr Walker asked CYPCS what action it had taken about the complaints. CYPCS withheld information under a number of different exemptions. We ordered CYPCS to disclose some of this information to Mr Walker.


  • Decision 111/2016 Amir Aryan Manesh and Glasgow City Council
    This case focussed on whether water damage caused by an internal plumbing failure was environmental information. The Council considered it was. However, we came to a different view and ordered the Council to issue a new response, this time under the FOI Act.


  • Decision 112/2016 Ms K and the Royal Conservatoire of Scotland
    This request was for the identity of donors who had gifted more than £100,000 to the Conservatoire. The Conservatoire withheld the information on the basis that it was personal data and disclosure would breach the data protection principles. We agreed that the Conservatoire could withhold the names of any individuals who had made donations of this size. However, we ordered it to disclose the names of organisations which had made the donations, given that the names of the organisations didn't relate to living individuals and so couldn't be personal data.


  • Decision 113/2016 Ganesh Sittampalam and Aberdeenshire Council
    Mr Sittampalam asked the Council for a copy of the Stonehaven Town Action Plan. The Council withheld some information on the basis that it was commercially sensitive or was personal data (and disclosure would breach the data protection principles). The Council failed to satisfy us that disclosing the information would be likely to substantially prejudice anyone's commercial interests, so we ordered disclosure of that information. However, we did agree that some of the personal data could be withheld.

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