Decisions Round-up: 18 to 22 February 2019

Environmental information cases feature in this week's round-up, with a reminder that there are special restrictions on what can be withheld if information relates to emissions and a case where we found that the timing of a request led to it being "manifestly unreasonable".

Learning points:

  • Authorities are restricted in withholding information about emissions
    If information relates to emissions, a number of the exceptions in the Environmental Information Regulations can't apply. In Decision 018/2019 we found that some of the exceptions used couldn't apply for this reason. However, we also found that the information in question was personal data so could be withheld on that basis.
  • People must be identifiable before information can be withheld as personal data
    For the exemptions relating to personal data to apply, the information in question needs to be capable of identifying a living individual. There must be a realistic prospect of this happening if the information is disclosed, either from the information itself or looking at the information along with other accessible information. In Decision 019/2019, we weren't satisfied that there was a realistic prospect of identifying anyone, given that the figures in question related to cancelled operations across a large area, broken down by year and by a set of generic reasons.
  • Timing can be key when deciding whether a request is manifestly unreasonable
    A request which is manifestly unreasonable under the Environmental Information Regulations at a particular time may not be manifestly unreasonable at other times - it all depends on the circumstances. In Decision 021/2018, we a found a request to be manifestly unreasonable, given that it was closely related to an earlier request which was the subject of a decision of the Commissioner requiring action within a similar timeframe. A key issue, therefore, was the confusion likely to be caused from responding to the request and acting on the decision within that timeframe.
  • Authorities are not required to create new information when responding to a request
    FOI only requires a public authority to give the requester information it holds when a request is received - the authority isn't required to create additional information. In Decision 017/2019, we noted that the public authority had given the requester information compiled after the request was received (which, while helpful, it wasn't legally required to do).

Decisions issued:

  • Decision 017/2019 Applicant and University of Aberdeen
    The University was asked about the configuration of the bathroom facilities on its campuses. After investigation, the Commissioner accepted that the University didn't hold the information.
  • Decision 018/2019 Nick Kempe and Loch Lomond and the Trossachs National Park Authority (LLTNPA)
    LLTNPA was asked for the integrated land management plans (ILMPs) that had been agreed, and information about the proportion of land these plans covered. LLTNPA withheld all information from the ILMPs. We found that LLTNPA had correctly withheld some information, but that other information should have been provided. We required LLTNPA to provide the information which wasn't excepted from disclosure.
  • Decision 019/2019 Ms R and Lothian Health Board (NHS Lothian)
    NHS Lothian was asked for the number of operations cancelled for non-clinical reasons, broken down by reason. NHS Lothian disclosed some information, but withheld data where the figures were "five or less", on the basis that disclosing those figures would identify the individuals involved so the exemption relating to personal data applied.

    The Commissioner didn't accept that the information was personal data and ordered NHS Lothian to disclose it.
  • Decision 020/2019 Company B and Highlands and Islands Enterprise (HIE)
    HIE was asked about an "Integrated Aquaculture Rapid Mortality Recovery System". HIE provided some information, stating other information was excepted from disclosure under the EIRs as internal communications or commercially confidential. We accepted that some of the information was excepted from disclosure on one or other of these grounds.

    However, we found that HIE wasn't entitled to withhold other information, as the requirements of the exceptions weren't met: that information was disclosed during the investigation.
  • Decision 021/2019 Mr T and Highland Council
    The Council was asked for information following the requester's previous requests on the same subject. The Council disclosed some information but also claimed part of the request was manifestly unreasonable and refused to comply with it. The Commissioner agreed that this part was manifestly unreasonable, given its timing and effect.


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