Decisions Round-up: 17 -21 July 2017

This week we published a case with a number of learning points about the exemption for information that is "otherwise accessible" to a requester, and whether information in the public domain can be exempt under the FOI Act.

Also this week: where a requester asks for information in a particular format, the authority must provide the information in that format "so far as reasonably practicable". We have a relatively rare case this week that looks at what is "reasonably practicable".

Learning points:


  • When is information otherwise accessible?
    Authorities can withhold information under Section 25 of the FOI Act if it is "otherwise accessible" to the requester. In Decision 112/2017, some of the information was already in the public domain, but we found that section 25 did not apply. The authority did not tell the requester what information was already in the public domain or where it could be found. In the particular circumstances of this case, it would have been good practice for the authority simply to provide the information rather than trying to withhold it.


  • If information is in the public domain can it be exempt for other reasons?
    In Decision 112/2017, the authority argued that information was exempt from disclosure because it was already in the public domain and, at the same time, that disclosing that information would prejudice substantially the effective conduct of public affairs. We disagreed. Information which is in the public domain will not generally be exempt under any other exemption in the FOI Act.


  • Information should be disclosed as soon as possible
    During our investigation, the authority in Decision 112/2017 agreed that some of the withheld information was not covered by any of the FOI Act exemptions. As soon as it becomes apparent that no exemption applies to information, and that the requester is therefore entitled to it, information should be disclosed.


  • Make sure requests are clear and responses match up with the request

    Decision 107/2017 is a case that has learning points for requesters as well as authorities. The request was ambiguous and the authority didn't notice that the information it disclosed didn't answer the request in full. It missed an opportunity to explain to the requesters what information was available and why the data could not be provided in the format they wanted.

    Requesters - remember that what is obvious to you may not be so obvious to the public authority: your request should spell out exactly what information you want. See our Tips for Requesters.


  • Should information be re-formatted for the requester?
    The FOI Act says that where a requester asks for information in a particular format, the authority must comply "so far as is reasonably practicable". The authority can consider cost as well as other issues, when deciding what is practicable. In Decision 107/2017, we accepted that the cost of presenting data in the requested format was so high that it was not reasonably practicable for the authority to provide it in this way.


  • Has the information already been disclosed?
    If information is already in the public domain, authorities should not withhold it. It's up to authorities to know what has been disclosed, so it's worth cross-checking documents. Decision 108/2017 would have been in favour of the public authority if it hadn't withheld information which it had disclosed in another document.


  • Timescales matter
    Another two cases this week where authorities failed on one of the most basic points - the requirement to respond within 20 working days. Our self-assessment toolkit module "Responding on time" will help authorities that find it difficult to meet the FOI timescales.

Decisions issued:


  • Decision 107/2017 Dorothy King and Christopher J Wybrew and Transport Scotland
    Transport Scotland was asked to provide data from a traffic speed survey, presented in the format previously used to provide similar data. Transport Scotland initially failed to respond, then provided some data, but not in the format which the requesters wanted.

    After investigation, we accepted it would not be reasonably practicable to convert the data into the required format. However, Transport Scotland should have been aware that the format in which the data was available was not the format which the requesters wanted, and should have explained this (reasonable advice and assistance).


  • Decision 108/2017 Global Alliance Against Industrial Aquaculture (GAAIA) and the Scottish Ministers
    GAIAA asked for information about the killing of seals at salmon farms, and the implications of a US import ban. The Ministers disclosed some information and withheld legal advice under the "internal communications" exception.

    We accepted that, except for some information which the Ministers had already made public, the information was legally privileged and should not be disclosed.


  • Decision 109/2017 Moira Niven and the Scottish Further and Higher Education Funding Council (the SFC)
    The SFC was asked for information about Edinburgh College's Business Transformation Plan. The SFC failed to respond to both the request and the request for review within the 20-working day timescale.


  • Decision 110/2017 Katy Sutherland and the Scottish Ministers
    Ms Sutherland asked for a list and breakdown of all travel and subsistence expenses claimed by the former Minister for Europe and International Development, Humza Yousef, for trips outside the United Kingdom. The Ministers did not respond to the request or the request for review within the FOI Act's 20-working day deadline.


  • Decision 112/2017 Kevin Keane (BBC) and Aberdeen City Council (the Council)
    The BBC asked the Council for a copy of a report into the management of Hazlehead Crematorium following the baby ashes scandal. The Council refused to disclose the report. During the investigation, the Council agreed parts of the report could be disclosed, but continued to withhold information on the basis that disclosure would breach the Data Protection Act or would harm the effective conduct of public affairs. We agreed that the exemptions applied to parts of the report. Some of the information which was in the report was already publically available, but we did not agree with the Council that it was exempt from disclosure under section 25 of the FOI Act, as the Council had not told the BBC where the information could be found.


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