Decisions Round-up: 17 to 21 February 2014

Nine decisions were published this week.

Key messages:

  • A request doesn't have to be identical to be repeated …
    For a request to be "repeated", it doesn't have to be a duplicate or identical. If you can show why a request is substantially similar to an earlier request, and back this up with evidence that shows you have already responded, it will make it easier for the Commissioner to accept that the request is repeated.
  • … but a request for the same information won't always be a "repeated" request
    Where an investigation raises issues which have been considered previously, the Commissioner will consider whether circumstances have changed or remain the same. In Decision 025/2014, Mr Sutherland asked for the same information he had requested before, claiming that the authority's reasons for withholding the information were no longer relevant. 
  • Explaining your decisions can help avoid an appeal
    In Decision 022/2014, the Commissioner was able to accept Ministers' claims that they did not hold information on staff involvement and costs associated with their YouTube and Flickr accounts. This was possible because Ministers provided a helpful explanation of why they didn't hold the information. The Commissioner did observe, however, that this explanation could also have been given to the applicant.


  • You don't have to provide redacted copies of documents
    You are not obliged to provide blacked-out versions of documents, where information is withheld. It's acceptable to provide a copy of the information which you are releasing on its own. However, it's important to provide contextual information which may add sense to the information you have extracted from the document e.g. paragraph headings.

Summary of decisions:

  • Decision 019/2014 - Paul Hutcheon and Scottish Ministers
    Mr Hutcheon asked Ministers for information on changes made to the Scottish Ministerial Code, published in December 2011. Ministers refused on several grounds - specifically that disclosing the information would deter officials from providing free and frank views on draft materials in the future. The Commissioner accepted that some (not all) of the withheld views might be made less fully in future, if they were disclosed. She found that the public interest in how the code was drafted was met by information already in the public domain, and release of this information would not advance that understanding. She also accepted that some of the information constituted legal advice and could be withheld. She ordered Ministers to disclose the rest of the information.

  • Decision 020/2014 - Tom Gordon and Scottish Ministers
    Mr Gordon asked Ministers to give him the names of two external contractors working on the Ministers' Defence and Security workstream in preparation for the possibility of independence. Ministers argued that the contractors might refuse to conduct further work for them if the names were released. This would cause real and substantial harm, given the unique skills these contractors offered and the fact that they were working in a particularly sensitive area (being currently reserved to Westminster). The Commissioner accepted this. She also acknowledged that the information had been disclosed in error since Mr Gordon appealed to her, but that this had no bearing on her decision - she had to consider the circumstances at the time Mr Gordon asked for a review.

  • Decision 021/2014 - Mr James Boyle and the General Teaching Council for Scotland (GTCS)
    When Mr Boyle asked the GTCS for information about investigations it had undertaken, it advised him that his requests were repeats of earlier requests he had made. Under the FOI Act, an authority is not obliged to respond to a repeated request if it complied with the original. The Commissioner found that, while not always expressed in exactly the same terms, Mr Boyle's requests essentially sought the same information as his earlier requests. As the GTCS had complied with the previous requests, it was not obliged to respond to Mr Boyle.

  • Decision 022/2014 - Mr Alan Laing and Scottish Ministers
    Mr Laing asked Ministers for information about staff involvement and costs associated with their content on Flickr and YouTube. The Ministers told Mr Laing it did not hold the information he was looking for - a position the Commissioner upheld after Ministers explained to our investigators why this was the case. She did observe that Ministers could have helped Mr Laing by providing this explanation directly to him in the first place.

  • Decision 023/2014 - Ms Robyn Staveley and Scottish Ministers (Transport Scotland)
    Ms Staveley asked Transport Scotland for copies of all correspondence it had with the Scottish Government relating to the funding of the Borders Railway project. Transport Scotland provided a table with extracts from the relevant documents, but Ms Staveley would have preferred redacted copies of the correspondence itself. After Mrs Staveley appealed, the Commissioner found that while Transport Scotland wasn't obliged to provide redacted copies, the information supplied in the tables didn't include everything which fell within the scope of the request. She ordered Transport Scotland to release it.

  • Decision 024/2014 - Hillend View Limited and North Lanarkshire Council (the Council)
    Hillend View asked the Council for information relating to communications and meetings with the Care Inspectorate to discuss Hillend View in the last 12 months. The Council refused much of the request, on the grounds that release would affect its ability to investigate concerns it had about Hillend View or other care providers, for example by preventing members of the public from coming forward to assist with its investigations. The Commissioner agreed that, under the circumstances, this could be the effect of releasing the information. She also found that the public interest in releasing the information was weakened by the fact that individual inspection reports were available on the Care Inspectorate's website.

  • Decision 025/2014 - Mr Ian Sutherland and Scottish Criminal Cases Review Commission (SCCRC)
    In 2010, the Supreme Court found that the police practice of detaining a suspect without a solicitor was incompatible with the European Convention on Human Rights (known as the "Cadder case"). Mr Sutherland had previously asked for views and opinions the SCCRC canvassed following that judgment and the Commissioner had accepted that release would affect the SCCRC's ability to conduct its investigations. Mr Sutherland was asking for the information again because he believed the SCCRC's deliberations following the Cadder case had now concluded. The SCCRC claimed this was not the case, and also argued that the information was exempt because it constituted legal advice. The Commissioner accepted that the information was exempt because it was legal advice.

  • Decision 026/2014 - Mr Stewart V Mackenzie and Perth and Kinross Council (the Council)
    Mr Mackenzie asked for information on the nature and type of anti-social behaviour investigations undertaken by the Council. The Council claimed it did not hold the information and would have to create it, which it was not obliged to do under the FOI Act. When Mr Mackenzie appealed, we found that the Council did hold the information, albeit not in the summarised format that Mr Mackenzie wanted. The Commissioner found that the Council was not obliged to provide the information in the specific format Mr Mackenzie had asked for, but that it should have explained this properly to him, under its duty to advise and assist him.

  • Decision 027/2014 - BWWC Ltd and Scottish Legal Complaints Commission (SLCC)
    BWWC asked the SLCC for correspondence and other information relating to a complaint made to the SLCC. The SLCC refused to release the information to BWWC, claiming that it was prohibited from doing so by the Legal Profession and Legal Aid (Scotland) Act 2007. Under the FOI Act, information is exempt if it releasing it would break another law. The Commissioner accepted that this would be the case.

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