Decisions Round-up: 16 to 20 November 2015

How can you test whether your response to an FOI request is right? One of our learning points this week might help: consider whether you could make a strong argument in support of your actions to the Commissioner if there were to be an appeal. If you can't make a strong case for withholding information, perhaps the information should be disclosed?

Key messages:

  • Make sure you know what information is covered by the request before responding
    We see a lot of cases where the authority has failed to identify all information covered by the request, such as Decision 178/2015. This week we also have a case where the authority said it had "withheld" information which it didn't hold (Decision 179/2015). It's important to be sure about what the request covers, and to check this with the requester if necessary.
  • Get it right from the start
    In Decision 176/2015 we commented on the authority's poor practice in handling a number of requests, including its failure to comply with timescales, and failure to consider the requests under FOI legislation from the outset. Not getting it right from the start can complicate a straightforward request. In this case, if the request had been properly considered when it was received, the requester could have been given relevant advice and assistance which might have saved time and effort later on.

    Our self-assessment module 1: Responding on time can help improve practice in this important area.
  • Remember to provide advice and assistance
    If you are refusing a request because it would cost too much, don't forget to provide appropriate advice to the requester. This might include telling them what information could be provided within the cost limit, or giving advice about how to narrow the request. In Decision 172/2015, we required the authority to provide advice and assistance after it failed to do so when refusing the request.
  • Make sure your submissions to the Commissioner are strong and relate to the withheld information
    Decision 174/2015 concerns a case where the arguments put forward by the authority did not appear to apply to the information in question - it was difficult to see how disclosure of the information covered by the request could have had the harmful consequences described by the authority. If you can't make a strong argument for withholding information, perhaps it should be disclosed?

Decisions issued:

  • Decision 168/2015 Peter Cherbi and the Scottish Ministers
    Mr Cherbi asked about legal advice on creating a register of interests for members of Scotland's Judiciary. The Ministers provided some information, but withheld legal advice, on the basis that disclosure would breach legal professional privilege. The Ministers also withheld the identity of the person who gave the advice, arguing that disclosure would prejudice the effective conduct of public affairs. We accepted both these arguments.
  • Decision 172/2015 Marc Ellison and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Mr Ellison asked for details of compensation payments. Police Scotland told Mr Ellison that because it would cost more than £600, they were not obliged to comply with his request. Following an investigation, we accepted this, but found that Police Scotland had failed to provide reasonable advice and assistance to help Mr Ellison narrow his request. We also found that Police Scotland failed to comply with the statutory response timescales.

    Police Scotland was required to go back to Mr Ellison and provide him with advice and assistance.
  • Decision 173/2015 Mr N and the Scottish Legal Complaints Commission (the SLCC)
    Mr N asked for correspondence regarding complaints he had raised. The SLCC refused to give Mr N the correspondence, on the basis that it was prohibited from doing so by the Legal Profession and Legal Aid (Scotland) Act 2007. We agreed that the SLCC was prohibited from disclosing the correspondence, which was therefore exempt from disclosure under the FOI Act.
  • Decision 174/2015 Rab Wilson and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Police Scotland were asked about an investigation concerning a health board. Police Scotland refused to confirm or deny whether it held the information. During the investigation, Police Scotland confirmed that it did not hold the information. We found that Police Scotland had been wrong to refuse to confirm that it held the information.

    We also found that Police Scotland had failed to provide convincing arguments to show that the information would have been exempt from disclosure, if it was held.
  • Decision 175/2015 David W Fleming and Aberdeenshire Council
    Mr Fleming asked the Council for all the information it held on the management of the Stonehaven Recreation Grounds Trust during the period 2010 - 2014. The Council told him that it did not hold any information. After investigation, we accepted this.
  • Decision 176/2015 Mrs W and East Dunbartonshire Council
    Mrs W requested correspondence between the Council and its external legal advisers in connection with the planning applications for a specific development. The Council withheld the information under the Environmental Information Regulations, as it considered it to be covered by legal professional privilege. We agreed, but commented on some poor practice in the way Mrs W's requests were handled by the Council, including late responses and a failure to consider the requests under the EIRs from the outset.
  • Decision 177/2015 Stuart Glendinning and Glasgow City Council
    The Council was asked for information about a compulsory purchase order. It provided some information and told Mr Glendinning that it did not hold other information. After investigation, we accepted this.
  • Decision 178/2015 Mr T and the Scottish Prison Service (the SPS)
    Mr T requested for a list of the website addresses accessed by an employee between certain dates. The SPS said that it didn't hold this information. We found that this was incorrect, and required the SPS to carry out a fresh review of its response to Mr T.
  • Decision 179/2015 Mr G and the Scottish Prison Service (the SPS)
    The SPS was asked for information about an audit of prisoner mail protocols and reported incidents of interference with staff mail. The SPS provided Mr G with a copy of the audit, but withheld information about reported interference with staff mail. After investigation, we found that the information which the SPS had withheld was not covered by Mr G's request, and that it didn't hold any information which would fall within this part of his request.

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